WELA ALERT: WASHINGTON COURT OF APPEALS
While Proof of Replacement by Someone Outside Protected Class is Not Required Element of Prima Facie Case under RCW 49.60, it is a Relevant Fact on Summary Judgment
Plaintiff was a part-time manager of accounting for the PUD for 27 years. Upon the termination of the General Manager, she was promoted to Interim General Manager, helped organize the search for a permanent replacement, and retained an executive search firm. The search firm selected Mr. Ward as the new General Manager. Mr. Ward and plaintiff did not get along, and she didn?t approve of his management style. The personality disputes went from bad to worse, and plaintiff complained to a PUD commissioner. Plaintiff suggested a survey of employees, and, as requested by the Commissioner, drafted a survey and distributed it to the other Commissioners for their approval. When Ward learned of the survey he concluded that plaintiff went behind his back and was ?out to get him.? Ward terminated plaintiff?s employment ?without cause.? Plaintiff was 57 years old. She was replaced in her position by a 51 year old woman.
Plaintiff filed suit alleging that age and gender discrimination were a substantial factor in the decision making process in violation of RCW 49.60 (?WLAD?). In support of the WLAD violation, Plaintiff claimed disparate treatment as compared to male employees and various alleged sexist comments and behaviors. Plaintiff also alleged negligent hiring, negligent retention, intentional infliction of emotional distress, and a violation of the defendant?s employment policies.
All claims were dismissed at summary judgment. In reference to the WLAD claims, the trial court relied on the McDonnell Douglas shifting burden protocol. The trial court ruled that as part of the prima facie case plaintiff is required to show that she was replaced by someone outside the protected group, or, in reference to age discrimination, by someone ?significantly younger.? Plaintiff appealed.
The Court of Appeals mostly relied upon federal law and concluded that as part of the prima facie case it wasn?t necessary to show that plaintiff was replaced by someone outside the protected class. Nevertheless, such evidence is still relevant to the McDonnell Douglas analysis:
Where a discharged employee is replaced by someone within the protected class, it will not be overlooked in the McDonnell Douglas analysis. It is relevant evidence, helpful to the employer, that will bear on the step three determination of whether a plaintiff claiming discrimination has established that the employer’s proffered reason was pretext or that discrimination was a substantially motivating factor in the employment decision.
The Court ruled that plaintiff had satisfied a prima facie case notwithstanding that she was not replaced by someone outside the protected class. The defendant then articulated legitimate business reasons for plaintiff?s termination. The burden then shifted back to the plaintiff to demonstrate pretext or that age or gender was a substantial factor in the decision making process. As part of this third stage of the McDonnell Douglas shifting protocol, the Court relied inter alia upon the fact that plaintiff was replaced by a 51 year old woman ?undercutting any inference that her sex or age were motivating factors in her termination.? Her subjective belief ?cannot be the basis for judicial relief.? The Court found the allegedly sexist remarks and other proposed evidence to be ?insufficient to permit a rational finder of fact to infer that the termination of her employment by Mr. Ward was more likely than not substantially motivated by discrimination.?
In a published decision the Court affirmed summary judgment in reference to claims under the WLAD. Plaintiff?s remaining claims were dismissed in an unpublished opinion.
Mikkelsen v. Public Utility Dist. #1 of Kittitas County, 195 Wn. App. 922, 380 P.3d 1260 (Div. III 9/13/16) (Siddoway, J., Korsmo , Lawrence-Berrey).