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Sunday, September 30, 2018

Definition of Prima Facie Case

by Gregory Williams, Esq. | Under Washington State laws, what is a prima facie caseHere's my point of view (NOTE: please read our DISCLAIMER before proceeding).


THE DICTIONARY

The term "prima facie" means "at first sight; on first appearance but subject to further evidence or information." Black's Law Dictionary 1228 (8th ed. 2004). And a "prima facie case" means: "1. The establishment of a legally required rebuttable presumption ... [; or] 2. A party's production of enough evidence to allow the fact-trier to infer the fact at issue and rule in the party's favor." Id.


THE CASELAW

The Washington State Supreme Court has declared, "* * * A 'prima facie case' is one where the evidence is sufficient to justify, but not to compel, an inference of liability, or, in other words, evidence to be weighed, but not necessarily to be accepted by a jury or other trier of the fact." Nopson v. City of Seattle, 33 Wn.2d 772, 812, 207 P.2d 674, (1949) (citing McCoy v. Courtney, 25 Wash.2d 956, 962, 172 P.2d 596, 600, 170 A.L.R. 603) (hyperlink added).


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

Friday, September 28, 2018

Failure To Mitigate Damages: WA State

by Gregory Williams, Esq. | What is the “failure to mitigate damages” defense and how is it typically applied in Washington State employment discrimination cases? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

AFFIRMATIVE DEFENSES

In Washington, defendant-employers usually assert the affirmative defense of “failure to mitigate damages” against plaintiff-employees during litigation of employment discrimination claims. An affirmative defense is a defendant’s assertion of facts and arguments that, if true, will defeat the plaintiff’s claim, even if all allegations in the complaint are true. Blacks Law Dictionary, p. 451, “defense (affirmative defense)” (Rev 8th Ed. 2004); Bernsen v. Big Bend Elec. Co-op., Inc., 68 Wn.App. 427, 433, 842 P.2d 1047 (1993); CR 8(c). This particular defense is most often asserted when the plaintiff-employee challenges as discriminatory a discrete employment decision, such as a termination or a failure to hire.

FAILURE TO MITIGATE DAMAGES

The burden of proving a failure to mitigate damages in an employment discrimination suit is on the employer, and the employer must show the following to satisfy its burden:
  1. There were openings in comparable positions available for plaintiff elsewhere after defendant terminated or refused to hire plaintiff;
  2. The plaintiff failed to use reasonable care and diligence in seeking those openings;
  3. The amount by which damages would have been reduced if the plaintiff had used reasonable care and diligence in seeking those openings.
6A Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.83 (6th ed.). Juries are typically instructed that they should take into account the characteristics of the plaintiff and the job market in evaluating the reasonableness of the plaintiff's efforts to mitigate damages. Id. Importantly, the plaintiff’s failure to make an ongoing, concerted effort to find comparable employment does not preclude a back pay award. Henningsen v. Worldcom, Inc., 9 P.3d 948, 102 Wn.App. 828 (Wash.App. Div. 1 2000).

AN EXAMPLE: HENNINGSEN v. WORLDCOM, INC.

For example, in Henningsen v. Worldcom, Inc., a plaintiff-employee (Henningsen) brought a sex discrimination lawsuit against her defendant-employer (Worldcom), and the trial court entered (bench trial) judgment in Henningsen’s favor; the award included full back pay. Id. (internal quotations omitted). Worldcom then appealed alleging the trial court erred, because Henningsen failed to mitigate her damages. Id. (internal quotations omitted). Worldcom claimed that there was evidence that she traveled extensively, had a baby, married the baby’s father, and then proceeded to assist him in the management of his own business after she left Worldcom. Id. (internal quotations omitted).

The Court found that there was evidence that Henningsen failed to make an ongoing, concerted effort to find comparable employment and that the trial court even expressed some concerns about Henningsen’s underemployment. Id. (internal quotations omitted). But the Court also found that there was evidence that she worked on a limited basis for her husband’s business and tried to start a home business. Id. (internal quotations omitted). Ultimately, the Court concluded that Worldcom presented no evidence that employment comparable to her position at Worldcom was in fact available and, therefore, ruled that substantial evidence supported the trial court’s finding that Worldcom did not prove that Henningsen failed to mitigate her back pay damages. Id. (internal quotations omitted).

Thus, in the case of Henningsen v. Woldcom, the issue of mitigation of damages was determined in favor of the employee as a result of the employer’s failure to satisfy the first element of the test—evidence that there were openings in comparable positions available for plaintiff elsewhere after defendant terminated (or refused to hire) plaintiff.


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

Monday, September 24, 2018

Cat's Paw Theory Applies In WA State

by Gregory Williams, Esq. | Under the various employment discrimination theories of liability in Washington state, what is the “Cat’s Paw” Theory? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

CAT’S PAW THEORY

The Cat’s Paw Theory of liability is a another term for subordinate bias liability and can be defined in Washington State as follows: If a supervisor performs an act motivated by retaliatory animus that is intended by the supervisor to cause an adverse employment action, and if that act is relied on by the employer and is a substantial factor in the ultimate employment action, then the employer is liable for retaliation. See Boyd v. State, 187 Wn.App. 1, 20, 349 P.3d 864 (Div. 2 2015).

ORIGINS

According to the Cat’s Paw Theory, "the animus of a non-decision-maker who has a singular influence may be imputed to the decision-maker." Id. at fn.1 (referencing, Staub v. Proctor Hosp., 562 U.S. 411, 131 S. Ct. 1186, 179 L. Ed. 2d 144 ( 2011)).
The term “cat’s paw” originated in the fable, “The Monkey and the Cat,” by Jean de La Fontaine. As told in the fable, the monkey wanted some chestnuts that were roasting in a fire. Unwilling to burn himself in the fire, the monkey convinced the cat to retrieve the chestnuts for him. As the cat carefully scooped the chestnuts from the fire with his paw, the monkey gobbled them up. By the time the serving wench caught the two thieves, no chestnuts were left for the unhappy cat.
Id. (citing, Julie M. Covel, The Supreme Court Writes A Fractured Fable of the Cat’s Paw Theory in Staub v. Proctor Hospital [ Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011)], 51 Washburn L.J. 159 ( 2011)). "In the workplace, the cat represents an unbiased decision-maker who disciplines an employee unknowingly due to a supervisor’s bias, represented by the monkey." Id. (citing, Edward Phillips, The Law at Work: Staub v. Proctor Hospital: The Cat’s Paw Theory Gets Its Claws Sharpened, 47 Tenn. B.J. June, 2011, at 21).

INDEPENDENT INVESTIGATIONS

Oftentimes, the employer-defendant under a Cat’s Paw theory of liability will claim that it conducted an “independent investigation” and found an unrelated basis for the adverse employment actions upon which the plaintiff-employee seeks recourse. In such a case, employers will typically argue that the so-called independent investigation was a supervening cause of any retaliatory animus. Nevertheless, the employer may not necessarily be relieved of liability.

If the independent investigation "relies on facts provided by the biased supervisor—as is necessary in any case of cat’s-paw liability—then the employer (either directly or through the ultimate decision maker) will have effectively delegated the factfinding portion of the investigation to the biased supervisor." Boyd, 187 Wn.App. at 18. Accordingly, the plaintiff may have a firm basis to argue that a causal connection exists, depending on the evidence. See, e.g., id.


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

–gw

Saturday, September 1, 2018

Pretext: Scrivener Corrects the Fulton Error

by Gregory Williams, Esq. | Under both Washington Law Against Discrimination (WLAD) and the McDonnell Douglas Framework, can a failure-to-promote plaintiff prove that discrimination was a substantial factor motivating the employer, even though the employer’s stated reason is legitimate? Here’s my point of view (NOTE: please read our DISCLAIMER before proceeding).

Proving Discrimination In Washington


-Substantial Factor-

Under the WLAD–and with few exceptions–it is an unfair practice for any employer to refuse to hire any person because of age, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability, unless based upon a bona fide occupational qualification.

At trial, the WLAD plaintiff must ultimately prove that the protected class was a substantial factor in an employer’s adverse employment action. See Scrivener v. Clark College, 181 Wn.2d 439, 444, 334 P.3d 541 (Wash. 2014) (internal citation and quotation marks omitted).

A “substantial factor” means that the protected characteristic was a significant motivating factor bringing about the employer’s decision. Id. (internal citation and quotation marks omitted). It does not mean that the protected characteristic was the sole factor in the decision. Id. (internal citation and quotation marks omitted).

-Proof By Circumstantial Evidence-

To overcome summary judgment, a plaintiff needs to show only that a reasonable jury could find that the plaintiff’s protected trait was a substantial factor motivating the employer’s adverse actions. Scrivener v. Clark College, 181 Wn.2d 439, 445, 334 P.3d 541 (Wash. 2014) (internal citation omitted). This is a burden of production, not persuasion, and may be proved through direct or circumstantial evidenceId. (internal citation omitted) (emphasis added).

Where a plaintiff lacks direct evidence, Washington courts use the burden shifting analysis articulated in McDonnell Douglas, 411 U.S. 792, to determine the proper order and nature of proof for summary judgment. Id. (internal citations omitted) ( emphasis added).

Thus, at summary judgment, Washington State courts typically apply the McDonnell Douglas Framework to decide employment discrimination issues where plaintiffs offer proof by circumstantial evidence.

The McDonnell Douglas Framework


The McDonnell Douglas Framework is a three pronged test; and in Scrivener the Washington State Supreme Court defined the test as follows:

Under the first prong of the McDonnell Douglas framework, a plaintiff bears the initial burden of establishing a prima facie case of discrimination, which creates a presumption of discrimination. (citations omitted). Once the plaintiff establishes a prima facie case, [under the second prong] the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. (citations omitted).

If the Defendant meets this burden, the third prong of the McDonnell Douglas test requires the Plaintiff to produce sufficient evidence that Defendant’s alleged nondiscriminatory reason for [the employment action] was a pretext. (citations omitted). Evidence is sufficient to overcome summary judgment if it creates a genuine issue of material fact that the employer’s articulated reason was a pretext for a discriminatory purpose. (citations omitted).

If the plaintiff satisfies the McDonnell Douglas burden of production requirements, the case proceeds to trial, unless the judge determines that no rational fact finder could conclude that the action was discriminatory. (citations omitted).

Scrivener v. Clark College, 181 Wn.2d 439, 446, 334 P.3d 541 (Wash. 2014) (internal citations and quotation marks omitted).

At this point, I’ve gone over enough information to warrant revisiting the main issue of this article: under both Washington Law Against Discrimination (WLAD) and the McDonnell Douglas Framework, can a failure-to-promote plaintiff circumstantially prove that discrimination was a substantial factor motivating the employer, even though the employer’s stated reason is legitimate?  The answer lies in the proper definition and application of the third prong of McDonnell Douglas — pretext.

The Fulton Error


The definition of “pretext” under McDonnell Douglas has contracted and expanded over the last two decades as a result of the “Fulton Error.”  In 2014, the Washington State Supreme Court, in Scrivener v. Clark College, essentially described the Fulton Error as follows:
  1.  In 1995, the Court of Appeals in Kuyper v. Dep’t of Wildlife, 79 Wn.App. 732, 738-39, 904 P.2d 793 (1995), listed the following four factors as examples of how to prove the defendant’s articulated reasons were pretextual:  (1) the reason has no basis in fact, (2) it was not really a motivating factor for the decision, (3) it lacks a temporal connection to the decision, or (4) was not a motivating factor in employment decisions for other employees in the same circumstances.
  2. In 2000, the Court of Appeals in Fulton v. Dep’t of Soc. & Health Servs., 169 Wn.App. 137, 161, 279 P.3d 500 (2012), repeated these four factors, omitting that they were only examples – thus creating the “Fulton Error.”
  3. In 2013, the Court of Appeals in Scrivener v. Clark Coll., 176 Wn.App. 405, 309 P.3d 613 (2013), review granted, 179 Wn.2d 1009, 316 P.3d 495 (2014), repeated the Fulton Error, overlooking that a plaintiff may also establish pretext by proving that discrimination was a substantially motivating factor in the employment decision.
Eventually, the Washington State Supreme Court decided it was time to address the Fulton Error.

The Pretext Prong


In 2014, the Washington State Supreme Court elected to review the 2013 Scrivener decision and found that an employee may satisfy the pretext prong by offering sufficient evidence to create a genuine issue of material fact either (1) that the defendant’s reason is pretextual or (2) that although the employer’s stated reason is legitimate, discrimination nevertheless was a substantial factor motivating the employer. Scrivener v. Clark College, 181 Wn.2d 439, 446-47, 334 P.3d 541 (Wash. 2014). Moreover, the court found that an employee does not need to disprove each of the employer’s articulated reasons to satisfy the pretext burden of production.  Id. at 447 (internal citation omitted). The court went on to say,

[O]ur case law clearly establishes that it is the plaintiff’s burden at trial to prove that discrimination was a substantial factor in an adverse employment action, not the only motivating factor. (internal citation omitted). An employer may be motivated by multiple purposes, both legitimate and illegitimate, when making employment decisions and still be liable under the WLAD. 

Id. at 447(internal citations omitted).

The Scrivener Correction


The court then squarely addressed the Fulton Error and ruled, “A plaintiff may satisfy the pretext prong using one of the four factors listed by the Court of Appeals, but the plaintiff may also satisfy the pretext prong by presenting sufficient evidence that discrimination nevertheless was a substantial factor motivating the employer.” Id. at 448 (emphasis added).


Conclusion


Thus, I believe that under both Washington Law Against Discrimination (WLAD) and the McDonnell Douglas Framework, a failure-to-promote plaintiff can prove that discrimination was a substantial factor motivating the employer, even though the employer’s stated reason is legitimate.


LEARN MORE

If you would like to learn more, then consider contacting an experienced Washington State Employment Discrimination Attorney as soon as possible to discuss your case. Please note: the information contained in this article is not offered as legal advice and will not form an attorney-client relationship with either this author or Williams Law Group, PS; please see our DISCLAIMER.

–gw