The Pretext Element: Six Limitations
Under the McDonnell Douglas Framework (Framework), as applied by Washington State courts, what are the limitations in establishing the pretext element? Here's my point of view (NOTE: please read our DISCLAIMER before proceeding).
THE MCDONNELL DOUGLAS BURDEN-SHIFTING FRAMEWORK
The McDonnell Douglas burden-shifting framework has three steps:
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).
STEP 3: "[I]f the defendant meets this burden, the plaintiff must produce sufficient evidence showing that the defendant's alleged nondiscriminatory reason for the adverse employment action was a pretext." Id. (internal citations omitted) (emphasis and hyperlink added).
STEP 3 -- THE PRETEXT ELEMENT: TWO METHODS
If the plaintiff establishes a prima facie case (step 1) and the employer articulates a legitimate, nondiscriminatory reason (step 2), then pursuant to step 3, "the employee must produce sufficient evidence showing that the employer's alleged nondiscriminatory reason for the discharge was a pretext." Crabtree v. Jefferson Cnty. Pub. Hosp. Dist. No. 2, 500 P.3d 203, 212 (Wash. App. 2021) (citing Mikkelsen, 189 Wash.2d at 527, 404 P.3d 464).
"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.
Id. (citing Mikkelsen, 189 Wash.2d at 527, 404 P.3d 464) (internal citation and quotation marks omitted) (emphasis and paragraph formatting added).
SIX LIMITATIONS CONCERNING THE PRETEXT ELEMENT
There are six important considerations/limitations concerning the pretext element:
(1) The employee is not required to disprove each of the employer's reasons or prove discrimination was the only motivating factor in termination:
"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).
(2) The employer may be motivated by both legitimate and illegitimate purposes and still be liable under Washington Law Against Discrimination (WLAD):
"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).
(3) Circumstantial, indirect, & inferential evidence is enough to discharge plaintiff's burden:
"Circumstantial, indirect, and inferential evidence is sufficient to discharge the plaintiff's burden." Id. (citing Mikkelsen, 189 Wash.2d at 526, 404 P.3d 464).
(4) If the employee produces evidence countering employer's reasons, the case must be submitted to jury:
"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).
(5) The employee must do more than express opinion or make conclusory statements - facts must be specific and material:
"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).
(6) An assertion of good performance to contradict that of bad performance is not enough:
"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).
READ MORE OF OUR RELATED ARTICLES🔍
For more detailed information concerning the pretext element, read our article: The Pretext Element: Two Methods of Proof.
For broader coverage of the McDonnell Douglas burden-shifting framework, read our article: The McDonnell Douglas Burden-Shifting Framework.
To see a Washington State court analyze an actual lawsuit for pretext, read our article: Crabtree v. Jefferson Cnty. Pub. Hosp. Dist. No. 2*.
(*NOTE: The link will take the reader to our external website: Court Slips.)
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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; please see our DISCLAIMER.
–gw
