Plaintiff was an English instructor at Clark College.?? In 2005 she applied for a tenure track position in the English Department. ?She was 55 years of age.?? Although she was fully qualified and one of the finalists, two applicants under the age of 40 were hired.???? ?She claimed age discrimination? under the Washington ?Law Against Discrimination (?WLAD?).? ?In support of the claim, she alleged 1) that the President of the College in 2006 stated in a ?State of the College? address that there was a ?glaring need? for younger talent within the college?s faculty, 2) that he advocated for requiring ?no experience? for the two positions, and 3) that only 44% of the tenure track faculty hires were within the protected class during the 2005-06 school year. Plaintiff?? also? ?presented? ?evidence?? that? ?the President of the College acted disrespectfully during her job interview. ?The college maintained that the hiring decision was unrelated to age; that the hiring authority was over 40 years of age; and the other candidates were better qualified.

A motion for summary judgment in favor of the College was granted, and the Court of Appeals affirmed.? ?The Court of Appeals ruled the substantial factor standard only applied where there existed ?direct evidence,? and there existed no such evidence in this case. ?In the absence of ?direct?? ?evidence??? ?the?? ?McDonnell?? ?Douglas?shifting burden standard should be applied.?? The Court of Appeals affirmed because Plaintiff failed to satisfy the pretext component of the McDonnell Douglas standard, which, as they defined it, required Plaintiff to disprove the employer?s articulated reasons. ?The Court of Appeals rejected the comments made by the President of the College as a ?stray remark.?? ?Scrivener v. Clark College,?176 ?Wn. ?App. ?405, ?309 ?P.3d ?613 ?(2013). ?The Supreme Court granted review and reversed. The Supreme Court ruled that summary judgment in favor of ?an employer is seldom appropriate in the WLAD cases because of the difficulty of proving a discriminatory motivation.??? The Court reaffirmed that at trial the WLAD plaintiff must ultimately prove that age was a “substantial factor” in an employer’s adverse employment action, and that ?both? the ??determining? factor? ?and ??only factor? standard had been rejected. Washington courts continue to follow the McDonnell Douglas standard in the absence of direct evidence.?? ?Because the Plaintiff had previously failed to argue that there existed ?direct evidence,? the Court applied the McDonnell Douglas ?shifting ?burden ?standard.???? The ?Court never addressed the federal law which allows Plaintiff?? to? ?choose?? between? ?the?? McDonnell Douglas standard and the more direct method of establishing ?substantial factor.? ?See McGinest v. GTE Service Corp., 360 F.3d 1103, 1122 (9th Cir.2004)(?[W]hen responding to a summary judgment motion, the plaintiff is presented with a choice regarding?? how? ?to? ?establish? ?his? ?or? ?her? ?case. [Plaintiff] ?may ?proceed ?by ?using ?the McDonnell Douglas framework, or alternatively, may simply produce direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated [the employer]?). On the issue of pretext, the Court ruled that ?[a]n 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.? ?The Court emphasized that ?[a]n employee does not need to disprove each of the employer’s articulated reasons to satisfy the pretext ?burden ?of? production. ?Our? 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. An employer ?may? be ?motivated ?by? multiple purposes, both legitimate and illegitimate, when making employment decisions and still be liable under the WLAD.??? (Emphasis original).? ?The Court of Appeals erred when it required Plaintiff to disprove all of the employer?s alleged reasons. Under the McDonnell Douglas standard, Plaintiff may satisfy the ?substantial factor? standard as an alternative to disproving the employer?s articulated reason.?? ?Significantly, the Court rejected the ?stray remark? doctrine.

Scrivener v. Clark County, — Wn.2d. —, 334 P.3d 541 (9/18/14)