The Pretext Element: Six Limitations
STEP 1: The "plaintiff bears the initial burden of establishing a prima facie case of discrimination, which creates a presumption of discrimination." Scrivener v. Clark College, 181 Wn.2d 439, 446, 334 P.3d 541, (2014) (citing, Riehl, 152 Wn.2d at 149-50; Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 490, 859 P.2d 26, 865 P.2d 507 (1993)) (internal citations and quotation marks omitted) (emphasis and hyperlink added).
STEP 2: "[T]he burden shifts to the defendant, who must articulate a legitimate, nondiscriminatory reason for the adverse employment action." Mikkelsen v. Public Utility District No. 1 of Kittitas County, 189 Wn.2d 516, 527 (Wash. 2017) (internal citations and quotation marks omitted) (emphasis and hyperlink added).
"An employee does not need to disprove each of the employer's articulated reasons to satisfy the pretext burden of production." Crabtree, 500 P.3d at 212 (citing Scrivener, 181 Wash.2d at 447, 334 P.3d 541) (internal quotation marks omitted). "Nor does an employee need to prove that discrimination was the only motivating factor in her termination." Id. at 212-13 (citing Scrivener, 181 Wash.2d at 447, 334 P.3d 541).
"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 213 (citing Scrivener, 181 Wash.2d at 447, 334 P.3d 541) (internal quotation marks omitted).
"If a plaintiff produces evidence at this [ ] stage to counter the employer's reasons, the case must be submitted to the jury; if not, the employer is entitled to a dismissal." Id. (citing Chen v. State, 86 Wash. App. 183, 190, 937 P.2d 612 (1997)) (internal quotation marks omitted) (alteration in original).
"To overcome an employer's summary judgment motion, the employee must do more than express an opinion or make conclusory statements." Id. (citing Chen, 86 Wash. App. at 190, 937 P.2d 612). "Instead, the facts must be specific and material." Id. (citing Chen, 86 Wash. App. at 190, 937 P.2d 612).
"An employee's assertion of good performance to contradict the employer's assertion of poor performance does not give rise to a reasonable inference of discrimination." Id. (citing Chen, 86 Wash. App. at 191, 937 P.2d 612).