Plaintiff was a part time English teacher for Clark College, who signed annual contracts beginning in 1994.?? In 2005, the College sought applications for two tenure track positions, and received ?156 ?applications ?including? Plaintiff?s, who was approximately 55 years old.?? ?The President of the College was the final decision maker.?? In his ?State of the College? address in January 2006, in the midst of the hiring process for the?? two? ?tenure?? track? ?openings,? ?the?? College President asserted that the College had a ?glaring need? for ?younger talent? under forty on the faculty. In a public forum discussing the posting for the two tenure track openings in the College?s English Department, the President stated that he opposed having any minimum experience requirement for applicants for the positions. Although plaintiff was a finalist, the College hired two substantially younger applicants who plaintiff claimed had less experience.???? Plaintiff filed suit alleging age discrimination. The College moved for summary judgment. The College presented statistical evidence and the declaration ?from ?those ?involved ?in ?the ?decision?Income Fund, 144 Wn. 2d. 172, 181, 23 P.3d 440 (2001).???? In ?particular, ?the ?Court ?ruled ?that plaintiff had the burden of establishing a prima facie case, and then the burden of production shifts to the employer to articulate a legitimate reason for the adverse action.?? The burden then shifts back to the employee to prove that the articulated reason ?was mere pretext for discrimination.??? ?The ?Court ?of? Appeals ?ruled: ?To show pretext, a plaintiff must show that the defendant’s articulated reasons (1) had no basis in fact, (2) were not really motivating factors for its decision, (3) were not temporally connected to the adverse employment action, or (4) were not motivating factors in employment decisions for other employees in the same circumstances.?

The parties agreed that plaintiff had established a prima facie case, and that the College had proffered legitimate reasons.?? The only?? remaining? ?issue? ?to? ?be? ?decided? ?was ?pretext.? ?In that regard, the plaintiff argued that she need only demonstrate that age was a ?substantial factor? in the decision making process.?? The Court rejected this argument, and ruled that the substantial factor standard ?does not apply to the burden shifting scheme . . . ,? and only applies to satisfying plaintiff?s burden of persuasion at trial. ?According to the Court of Appeals, the ?substantial factor? standard does not apply at the summary judgment stage of the proceeding, and instead she must prove ?pretext? as described above. ?The Court recognized a split with Division I of the Court of Appeals. ?See Rice v. Offshore Sys., Inc., 167 Wn. App. 77, 272 P.3d 865, review denied, 174 Wn.2d 1016 (2012).

In support of pretext, plaintiff offered statistical evidence; that she was better qualified that those younger employees who received the position; and the comments of the College President.? ?The Court found that the comments needed to be considered in the context that the President ?was ?seeking ?greater? diversity: ?[P]erhaps the most glaring need for increased diversity is in our need for younger talent. ?74% of Clark College’s workforce is over forty.? ?And though I have a great affinity for people in this age group, employing people who bring different perspectives will only benefit our college and community.? ?The Court described the comment as a ?stray remark.? ?Despite the offered justification of promoting diversity, the College continued to deny that age played any part in the decision making process. Summary judgment was affirmed.?? ?A Petition for Review is pending.

Scrivener v. Clark County, ???????Wn. App.????? , 309 P.3d 613 (Div. II 9/4/2013) (Johanson, Quinn- Brintnall, Dalton (Pro Tem.))