Summary Judgment Appropriate Where Evidence of Pretext is Conclusory and Speculative

The plaintiff in this worked for her employer for 17 years, at which point her position was eliminated. ?It demoted her and promoted a male co-worker.??? ?The plaintiff served a sex discrimination? suit? on? March? 11,? 2002.?? ?Four days? earlier,? the? Company? had? begun investigating leaks of confidential information. The investigator apparently did not know about the lawsuit once it was filed, but her managers did.?? On March 21, 2002, she was terminated allegedly as a result of the investigation. ?In fact, the employee had not committed the misconduct. The trial court granted summary judgment to the Company on the claim of sex discrimination. After a bench trial, the judge found for the Company on the retaliation claim. ?The court of appeals affirmed.?? The court incorrectly stated that it was bound to follow McDonnell Douglas Burdine in analyzing the sex discrimination case. The court found there was insufficient evidence of pretext regarding the company?s reasons for promoting the male co-worker, who was at least as qualified. The court unfortunately relied on the same-actor inference because the decisionmaker had previously promoted the plaintiff.?? There was no evidence that the prior promotions involved competition against a male employee. ?On the retaliation claim, the court of appeals ?deferred ?to? the ?trial ?judge?s determination that the plaintiff?s manager sincerely believed she had leaked confidential information when they terminated and that they were not motivated in any respect by retaliation. The?? court?? of?? appeals?? correctly?? held?? that retaliation is a pure question of fact. ?In troubling language, the court held that an employee must overcome a strong inference that her supervisor?s conduct and attitude had not changed over the previous year to prove a retaliation case. Apparently this is another reference to the same actor inference.? ?Filing a discrimination lawsuit would seem a pretty easy way to change your supervisor?s conduct and attitude and should eviscerate any application of the same-actor inference.?? Baker v. Advanced Silicon Materials Inc., No. 23746-0-III (Feb. 14, 2006; Sweeney; Kato; Thompson).