Cornwell v. Microsoft Corp. , 430 P.3d 229 ( 2018 )

this opinion was filed for record
FILE at^ ^- Od on"u
IN CLERKS OFFICE
•UHSE COURT. StKTE OF WASHINGTON
I o«7?_N0VJJJpi8 ,
SUSAN L^CARLSON
'^dA'AbAUA4 , C6- SUPREME COURT CLERK
IN THE SUPREME COURT OF THE STATE OF WASHINGTON
DAWN CORNWELL, No. 94846-1
Petitioner, En Banc
V.
Filed 2 9 2018
MICROSOFT CORPORATION,
A Delaware Corporation,
Respondent.
WIGGINS, J.—Dawn Cornwell asks us to reverse the grant of summary
judgment in her retaliation claim against her former employer, Microsoft Corporation.
At issue is whether she presented enough evidence to show that her supervisors had
sufficient knowledge that she had taken a protected action under the Washington Law
Against Discrimination (WLAD), RCW 49.60.030. Without establishing this
knowledge, Cornwell cannot demonstrate a potential causal link between the adverse
employment action taken against her and her protected activity. We hold that Cornwell
presented sufficient evidence to survive summary judgment on the issues of
knowledge and causation. The evidence tends to show that both of Cornwell's
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No. 94846-1
supervisors had actual knowledge that Cornwell had previously engaged in protected
activity before they subjected her to adverse employment action. As a result, we
reverse the Court of Appeals and remand the case to the trial court for further
proceedings.
FACTS AND PROCEDURAL HISTORY
I. Factual History
While working for Microsoft, Cornwell believed that her then-supervisor was
discriminating against her on the basis of sex, engaging in romantic favoritism, and
taking retaliatory action against her. She hired an attorney and settled the case with
Microsoft. The settlement was confidential, and Cornwell was no longer required to
work under her then-manager, Todd Parsons.
Seven years later, Cornwell's new manager, Mary Anne Blake, asked Cornwell
to mentor under another Microsoft employee. After learning that the employee
reported to Parsons, Cornwell told Blake that she could not mentor under the
employee. Blake asked Cornwell why, and Cornwell responded that it was because
she had filed a "lawsuit"^ against Microsoft and could not report to Parsons. Cornwell
also told Blake that the suit involved a review score issue and was confidential. Blake
sought more information about the lawsuit from human resources and her direct
supervisor, Nicole McKinley. Human resources did not have any information on file
about the lawsuit and promised to follow up on the issue.
^ Cornwell and Blake referred to CornweH's previous legal action against Microsoft as a
"lawsuit." We refer to that activity using the same terminology.
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No. 94846-1
Meanwhile, Blake told Cornwell that she had Inquired about the lawsuit with
human resources but that they did not have any further information. She also asked
Cornwell what would happen if her team needed to merge with Parsons' team.
Cornwell informed Blake that she was unable to discuss the lawsuit further because
of the confidentiality agreement and expressed dissatisfaction that Blake had
contacted human resources about the matter.
Shortly after Cornwell told her about the suit, Blake conducted a mandatory
performance review of Cornwell. During that year, Cornwell had received positive
reviews from her peers:
Dawn is [a] strong release manager able to pull all appropriate
stakeholders together, drive meetings forward and succinctly, keep
topics on point, and hold people to meeting deliverables.
. . . Dawn knows what me [sic] and my team need to be successful and
she provides those resources proactively in a timely manner. I never
have to wonder where a project stands when Dawn is leading the effort.
. . . She actively solicits feedback, is very receptive to any feedback
received and also follows up on it.
. . . Dawn partners extremely well with others and has established a
rapport and positive reputation with the many teams she works with.
Clerk's Papers (CP) at 163-64. During her previous years working for Microsoft,
Cornwell also had received good performance ratings and promotions. Despite this
positive employment history, Blake informed Cornwell that she was trending toward a
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No. 94846-1
rating of "4," the second lowest possible score. Cornwell told Blake that she disagreed
with that rating and was upset with this information. Blake followed up with human
resources and McKinley about CornweH's response. Human resources promised to
have Microsoft's legal department review Cornwell's performance rating.
Ultimately, Blake and McKinley recommended that Cornwell be rated "5," the
lowest possible score. Other managers disagreed with the rating, believing that
Cornwell was a higher performer. One manager did not have the "impression that Ms.
Blake was giving Ms. Cornwell a fair chance to succeed" and "didn't agree with her
[Blake's] assessment of [Cornwell's] performance." CP at 202. Another manager
involved in the performance rating process recalled being "very surprised as to how
[Cornwell] was evaluated" and that "several of the managers in the discussion
supported [Cornwell] as being a good performer, undeserving of a '5' rating definition."
CP at 212. Even Blake acknowledged that "in general Dawn received feedback that
she's a good team player. People found her personality to be enjoyable, and she
brought a positive and upbeat experience to teams." CP at 56.
Despite these disagreements, McKinley said that she and Blake would "take
the conversation 'off-line,'" meaning that Blake and McKinley would make the final
decision about Cornwell's performance rating without the involvement of the other
managers. CP at 212. Cornwell's final performance rating was assessed as a "5"—
the lowest possible score. Human resources told Blake to not inform Cornwell of her
review score "unless she asked about it." CP at 63. Cornwell was then laid off as part
of a larger reduction in force. Cornwell remembers being told that she would not
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receive a review score rating because of the layoff. As a result, Cornwell did not learn
about her low score until several years later when she was told that she could not be
rehired at Microsoft because her final performance rating was so poor.^
II. Procedural History
Based on these events, Cornwell filed suit against Microsoft, alleging retaliation
in violation of WLAD. Microsoft moved for summary judgment, arguing that Cornwell
had failed to present evidence showing a prima facie case of discrimination. The trial
court granted Microsoft's motion for summary judgment because the judge believed
that "there isn't evidence that Ms. Blake, who gave [Cornwell] the bad [review] score,
knew that there was a complaint under WLAD." Report of Proceedings at 40. As a
result, the judge believed that Cornwell had failed to show a causal link between the
adverse employment action taken against her and her prior lawsuit against Microsoft.
Cornwell appealed the trial court's ruling to the Court of Appeals. The Court of
Appeals affirmed the grant of summary judgment in an unpublished opinion. Cornwell
V. Microsoft Corp., No. 74919-6-1, slip op. at 1-2 (Wash. Ct. App. June 5, 2017)
(unpublished), https://www.courts.wa.gov/opinions/pdf/749196.pdf. The court agreed
that Cornwell had failed to present evidence to prove causation between her prior
lawsuit and the adverse employment actions taken against her. Id. at 9. But it declined
to address whether Cornwell's prior lawsuit was "protected activity" under WLAD. Id.
The court also declined to adopt Cornwell's proposed standards of review for the
claim. Id. at 13.
2 After she was terminated, Cornwell applied for 170 different positions at Microsoft.
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Cornwell appealed the Court of Appeals' adverse decision to this court, and we
accepted review of all issues.
STANDARD OF REVIEW
"We review a trial court's grant of summary judgment de novo." Scrivener v.
Clark Coll., 181 Wash. 2d 439, 444, 334 P.3d 541 (2014). "Summary judgment is
appropriate only when there is no genuine issue as to any material fact and the moving
party is entitled to judgment as a matter of law." Id. "[Bjecause of the difficulty of
proving a discriminatory motivation," id. at 445, "[sjummary judgment for an employer
is seldom appropriate" in the employment discrimination context, MIkkelsen v. Public
Utility District No. 1 of Kittltas County, 189 Wash. 2d 516, 527, 404 P.3d 464 (2017). We
must also "consider all facts and make all reasonable factual inferences in the light
most favorable to the nonmoving party." Scrivener, 181 Wash. 2d at 444.
ANALYSIS
We reverse the Court of Appeals. Cornwell has presented sufficient evidence
to make a prima facie case that Microsoft retaliated against her in violation of WLAD.
This evidence was adequate to create an issue of fact about whether there was a
causal link between her prior suit and Microsoft's decision to give her a poor review
rating and terminate her. Under either the "actual knowledge" standard or the "knew
or suspected" standard, Cornwell presented sufficient evidence of the employer
knowledge necessary to show causation. Ultimately, summary judgment was
Improper, and we remand the case to the trial court for further proceedings.
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I. Retaliation under WLAD
WI_AD proscribes discrimination in employment on the basis of sex, race,
sexuai orientation, and other protected characteristics. RCW 49.60.030. WLAD also
prohibits employers from retaliating against empioyees who oppose discriminatory
practices. RCW 49.60.210(1). To further these purposes, the legislature has directed
us to iiberaliy construe the provisions of WLAD. RCW 49.60.020.
When evaluating the merits of cases brought under WLAD, we employ the
McDonnell Douglas^ "evidentiary burden-shifting" framework. MIkkelsen, 189 Wash. 2d
at 526. This framework involves three steps, but we are concerned with only the first
step in this case—the plaintiff's burden to establish a prima facie case of
discrimination. Scrivener, 181 Wash. 2d at 446.'"Ordinarily the prima facie case must, in
the nature of things, be shown by circumstantial evidence, since the employer is not
apt to announce retaliation as his motive.'" Wllmot v. Kaiser Alum. & Chem. Corp.,
118 Wash. 2d 46, 69, 821 P.2d 18 (1991)(quoting 1 Lex K. Larson, Unjust Dismissal
§ 6.05[5], at 6-51 (1988)); see also Currier v. Northland Servs., Inc., 182 Wash. App.
733, 746-47, 332 P.3d 1006 (2014)('"Because employers rarely will reveal they are
motivated by retaliation, plaintiffs ordinarily must resort to circumstantial evidence to
demonstrate retaliatory purpose.'"(internal quotation marks omitted)(quoting Estevez
V. Faculty Club of Univ. of Wash., 129 Wash. App. 774, 799, 120 P.3d 579 (2005))).
3 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 8. Ct. 1817, 36 L. Ed. 2d 668 (1973).
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To establish a prima facie case of retaliation, an employee must show three
things:(1)the employee took a statutorily protected action,(2)the employee suffered
an adverse employment action, and (3) a causal link between the employee's
protected activity and the adverse employment action. Currier, 182 Wash. App. at 742;
see also Wilmot, 118 Wash. 2d at 68 (establishing the retaliation test in the worker's
compensation context).
Here, Microsoft alleges that Cornwell has failed to produce sufficient evidence
for the first and third elements of her prima facie case.'' Because the Court of Appeals
declined to address whether Cornwell's lawsuit against Microsoft was a protected
activity, and because the parties did not brief the issue to us, we do not reach that
issue on appeal.® We instead address only whether Cornwell presented sufficient
evidence to show a potential causal link between her performance rating score, her
termination, and her prior lawsuit.
II. Causation
Microsoft argues that Cornwell failed to present sufficient evidence to create an
issue of material fact that there is a causal link between her prior lawsuit and the
adverse employment action taken against her. We disagree for the following reasons.
The second element of the prima facie test is not at issue. It is undisputed that Cornwell
received a poor performance evaluation rating and was terminated. CP at 144-45. The poor
rating prevented Cornwell from being considered for future rehlrlng. CP at 219-20. This
undoubtedly qualifies as an adverse employment action. See Jin Zhu v. N. Cent. Educ. Serv.
Dist.—ESD 171, 189 Wash. 2d 607, 619, 404 P.Sd 504 (2017) ('"An employment action Is
adverse If It Is harmful to the point that It would dissuade a reasonable employee from making
complaints of. . . retaliation.'" (Internal quotation marks omitted)(quoting Boyd v. State, 187
Wash. App. 1, 15, 349 P.Sd 864 (2015))).
5 Because the Issue Is not before us, for purposes of this appeal we assume that Cornwell's
prior legal action against Microsoft constituted protected activity under W1_AD.
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An employee proves causation "by showing that retaliation was a substantial
factor motivating the adverse employment decision." Allison v. Hous. Auth., 118
Wash. 2d 79, 96, 821 P.2d 34 (1991). At the summary judgment stage, the plaintiff's
burden is one of production, not persuasion. Scrivener, 181 Wash. 2d at 445. Thus, to
avoid summary judgment on causation, the employee must show only that a
reasonable jury could find that retaliation was a substantial factor in the adverse
employment decision. Id. Employees may rely on the following facts to show this: (1)
the employee took a protected action, (2) the employer had knowledge of the action,
and (3) the employee was subjected to an adverse employment action. Wllmot, 118
Wash. 2d at 69.
At issue here is the quantum of employer knowledge about the employee's prior
protected activity. We have yet to address this question in a case. The parties
advocate for three different standards to evaluate employer knowledge. Microsoft
urges us to adopt the actual knowledge standard used by the Court of Appeals and
several federal courts, while Cornwell advocates for either a "knew or suspected"
standard or a "general corporate knowledge" standard used by other federal courts.
Here, under either the actual knowledge standard or the "knew or suspected"
standard, Cornwell presented enough evidence to survive summary judgment. We
decline to address the "general corporate knowledge" standard in this case.®
® Cornwell asks us to adopt the "general corporate knowledge" standard, which requires a
plaintiff to show that the employer generally had knowledge of the plaintiff's protected activity.
Kesslerv. Westchester County Dep't of Soc. Servs., 461 F.3d 199, 210(2d Cir. 2006). Under
this standard, the jury can still find retaliation in circumstances where the particular decision-
maker denies actual knowledge of the plaintiff's protected activities, "so long as . . . the jury
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a. Actual Knowledge
Cornwell has presented sufficient evidence to survive summary judgment under
the actual knowledge standard.
Both the Court of Appeals and several federal courts require that the employer
have actual knowledge of the employee's protected action in order to prove causation.
See, e.g., Mann v. King County, 194 Wash. App. 795, 813, 378 P.3d 203, review denied,
186 Wash. 2d 1028, 385 P.3d 124 (2016)("Marin failed to show that anyone . . . knew
about his protected activity . . . , precluding his claim that employees . . . retaliated for
that activity. He identifies no evidence that supports his bare assertion that the entire
'chain of command' knew [about his protected activity]."); Raney v. VInson Guard
Serv., Inc., 120 F.3d 1192, 1197 (11th Cir. 1997)("In order to satisfy the 'causal link'
prong of a prima facie retaliation case, a plaintiff must, at a minimum, generally
establish that the defendant was actually aware of the protected expression at the
time the defendant took the adverse employment action.").^ Because retaliation is an
concludes that an agent is acting explicitly or implicit[ly] upon the orders of a superior who
has the requisite knowledge." Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir.
2000). While the standard may be useful in situations where many individuals act collectively
in a large company, it is not applicable here where CornweH's two supervisors had actual
knowledge of her prior lawsuit. Thus, we decline to address the "general corporate
knowledge" standard in this case.
^ See a/so MIchkowskI v. Snohomlsh County, No. 71328-1-1, slip op. at 14 (Wash. Ct. App.
Feb. 17, 2015)(unpublished), https://www.courts.wa.gov/opinions/pdf/713281.pdf ("Without
evidence of actual knowledge, [an employee] fails to establish the causal connection
necessary to make out a prima facie case of retaliatory discharge."); Stephens v. Erickson,
569 F.3d 779, 788 (7th Cir. 2009)("Clearly, a superior cannot retaliate against an employee
for a protected activity about which he has no knowledge."); Raad v. Fairbanks N. Star
Borough Sch. DIst., 323 F.3d 1185, 1197 (9th Cir. 2003)("In addition, the plaintiff must make
some showing sufficient for a reasonable trier of fact to infer that the defendant was aware
that the plaintiff had engaged in protected activity.").
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intentional act, an employer cannot retaliate against an employee for an action of
which the employer is unaware. Marin, 194 Wn. App. at 818("WI_AD does not prohibit
an employer's actions without evidence of a causal link between the action and a
plaintiffs protected activity.").
Microsoft argues that Blake and McKinley did not have actual knowledge of
Cornwell's suit because they did not know the specific nature of the lawsuit—i.e., that
it involved an allegation of discrimination in violation of WLAD. CP at 55, 144.
However, Microsoft's focus on the managers' knowledge about the substance of the
suit is misplaced. A decision-maker need not have actual knowledge about the legal
significance of a protected action. Instead, the decision-maker need have actual
knowledge only that the employee took the action in order to prove a causal
connection. ROW 49.60.210(1) ("It is an unfair practice for any employer . . . to
discharge, expel, or otherwise discriminate against any person because he or she has
opposed any practices forbidden by [WLAD]."); see aiso Wilmot, 118 Wash. 2d at 69
(stating that an employee could prove causation by showing three facts, including
"that the employer had knowledge of the [action]"). "The proper inquiry is whether the
. . . evidence suggests a causai connection between the protected activity and the
subsequent adverse action sufficient to defeat summary judgment." Reich v. Hoy
Shoe Co., 32 F.3d 361, 367 (8th Cir. 1994). Cornwell has presented sufficient
evidence that Blake and McKinley knew Cornwell took prior legal action against
Microsoft.
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Here, Blake and McKinley actually knew about Cornwell's alleged protected
activity—the lawsuit. Regardless of whether they understood that the lawsuit was
protected activity under WLAD because of its substance, they still had knowledge that
the activity took place. It is undisputed that Blake and McKinley knew that Cornwell
had filed a lawsuit against Microsoft and her former supervisor. Blake learned that
Cornwell could not discuss the details of the lawsuit, but knew that the suit involved a
review score and male supervisor. Blake also knew that Cornwell "had a legal action
with Microsoft about a review score." CP at 55. Blake then followed up with human
resources about Cornwell's lawsuit with Microsoft. ®
Given Blake and McKinley's knowledge of the suit and the poor performance
rating and termination that followed shortly thereafter,® it is a reasonable inference
that these actions were in retaliation for Cornwell's previous lawsuit. See Raad, 323
F.3d at 1197 ('"That an employer's actions were caused by an employee's
engagement in protected activities may be inferred from proximity in time between the
protected action and the allegedly retaliatory employment decision.'" (internal
quotation marks omitted)(quoting Ray v. Henderson, 217 F.3d 1234, 1244 (9th Cir.
2000)); see also Wilmot, 118 Wash. 2d at 69 (stating, "'[pjroximity in time between the
® Contrary to the dissent's criticisms, it is because of all of the facts here discussed, not merely
because CornweN's prior suit involved a male supervisor, that her claim survives summary
judgment. Dissent at 2. Further, also despite the dissent's assertions, we know that Cornweirs
prior suit related to sex discrimination; we do not make (or need to make) the "over-inclusive"
assumption that all suits by a female employee against a male supervisor involve sex
discrimination. Accordingly, the dissent's list of hypothetical claims that might have been brought
is surplusage. Id. at 2-5.
9 Cornwell told Blake about the lawsuit in late 2011. In July 2012, Blake and McKinley rated
Cornwell as a "5," and Cornwell was laid off in September 2012.
12
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claim and the firing is a typical beginning point'" for proving retaliation (quoting 1
Larson, supra, § 6.05[5], at 6-51)).^° In addition, Cornwell had previously received
positive ratings and promotions during her employment at Microsoft. In the year that
she was terminated, "several" other managers disagreed with Blake's decision to rate
Cornwell poorly and thought that she should be rated higher based on her
performance. Again, McKinley and Blake knew about Cornwell's prior legal action,
and the circumstantial evidence supports the reasonable inference that Blake's
knowledge of Cornwell's lawsuit was a substantial factor in her poor rating and
eventual termination. That is all that is required to survive summary judgment. As a
result, Cornwell presented the necessary circumstantial evidence to show that her
lawsuit was a substantial motivating factor in her poor performance rating and
termination under the actual knowledge standard.
b. Knew or Suspected
Cornwell also asks us to adopt a "knew or suspected" standard for evaluating
retaliation claims. The "knew or suspected" standard incorporates the actual
knowledge standard and also encompasses cases in which the employer suspects
Microsoft argues that Cornwell lacks evidence of proximity because she filed her prior
lawsuit seven years before her poor evaluation and termination. However, this argument
focuses on the wrong event. Here, Blake and McKinley learned about CornweH's previous
lawsuit only months before Cornwell was terminated. To properly evaluate whether there is
sufficient circumstantial evidence of retaliation, we must focus on the proximity between when
Blake and McKinley learned of the lawsuit and the adverse employment actions that they
subsequently took. The time between those events is a few months—brief enough to give
rise to a reasonable inference of retaliatory motive.
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that an employee engaged in protected action.''^ It requires sufficient evidence to
reasonably infer "both that[a supervisor] either knew or suspected" that an employee
took a protected action "and that there was a causal connection between this
knowledge or suspicion and [the employee's] termination." Hernandez v. Spacelabs
Med. Inc., 343 F.3d 1107, 1113 (9th Cir. 2003). This standard applies, for example,
when a supervisor has actual knowledge that a complaint was made but has only a
suspicion regarding who made the complaint and subsequently takes an adverse
employment action based on that suspicion.
In Hernandez, the Ninth Circuit court held that a supervisor's suspicion that a
particular employee was the one who filed a sexual harassment report was enough to
survive summary judgment after the supervisor fired the suspected employee. Id. In
that case, an employee learned that his coworker was allegedly harassed by a
supervisor. Id. at 1110. Because his coworker was afraid to report the harassment,
the employee reported it to the human resources department. Id. Shortly thereafter,
the supervisor fired the employee, /c/. at 1111. After the employee sued for retaliation,
the supervisor denied that he knew which employee reported him for harassment and
stated that the employee's termination was for cause. Id. at 1113. The trial court
granted summary judgment in favor of the employer on this basis. Id.
"The "knew or suspected" standard has been applied by the United States Court of Appeals,
Ninth Circuit, as well as by other federal courts in the OSHA context. See, e.g., Hernandez v.
Spacelabs Med. Inc., 343 F.3d 1107 (9th Cir. 2003); Reich, 32 F.3d 361.
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The Ninth Circuit reversed summary judgment, holding that the employee had
presented "sufficient evidence from which a reasonable jury could infer both that [the
supervisor] either knew or suspected that [the employee] had reported the alleged
harassment to [human resources], and that there was a causal connection between
this knowledge or suspicion and [the employee's]termination." Id. The court reasoned
that "[i]t is frequently impossible for a plaintiff in [the employee's] position to discover
direct evidence contradicting someone's contention that he did not know something."
Id. at 1114. Thus, "[w]hat-did-he-know-and-when-did-he-know-it questions are often
difficult to answer, and for that reason are often inappropriate for resolution on
summary judgment. . . . But [the employee] has introduced substantial circumstantial
evidence. . . . He has produced sufficient evidence which, if credited by the jury, would
satisfy [the] burden of establishing a prima facie case." Id. at 1113-14. So long as an
employee produces evidence from which a reasonable jury could infer that retaliation
had taken place, this is sufficient to survive summary judgment, /c/. at 1114. And while,
a jury could believe the supervisor's version of events rather than the employee's, the
jury must be permitted to consider and weigh evidence. Id.
Here, Cornwell had to prove that Microsoft knew or suspected that she had
taken a prior iegal action. As previously discussed, Cornwell produced sufficient
evidence showing that both Blake and McKinley had actual knowledge that Cornwell
had filed a previous lawsuit against Microsoft. Thus, Cornwell easily meets the "knew
or suspected" standard to survive summary judgment on her retaliation claim.
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Although Cornwell satisfies the "knew or suspected" standard, the broader
question remains of whether we should adopt this standard. We adopt the standard
because it furthers WLAD's purpose to protect employees from retaliation.
The purpose behind the "knew or suspected" test is to protect employees from
retaliation to the fullest extent possible:
It seems clear to this Court that an employer that retaliates against
an employee because of the employer's suspicion or belief that the
employee filed a[ ]. . . complaint has as surely committed a violation of
[the statute] as an employer that fires an employee because the
employer knows that the employee filed a[ ] . . . complaint. Such
construction most definitely furthers the purposes of the Act generally
and the anti-retaliation provision specifically.
Reich, 32 F.3d at 368. "It is well recognized that WLAD . . . relies heavily on private
individuals for its enforcement. This reliance would be unrealistic, to say the least, 'if
this court does not provide them some measure of protection against retaliation.'" Jin
Zhu V. N. Gen. Educ. Sen/. Dist.—BSD 171, 189 Wash. 2d 607, 622-23, 404 P.3d 504
(2017)(citation omitted)(quoting Allison, 118 Wash. 2d at 94). Restricting the application
of WI-AD's antiretaliation provisions to instances of actual knowledge results in
inconsistent protection of employees:
It would be a strange rule, indeed, that would protect an employee
discharged because the employer actually knew he or she had engaged
in protected activity but would not protect an employee discharged
because the employer merely believed or suspected he or she had
engaged in protected activity.
Reich, 32 F.3d at 368. Employers are not limited to retaliation decisions based on
information they actually know to be true. Id. Instead,"common sense and experience
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No. 94846-1
establish that employers also make employment decisions on what they suspect or
believe to be true." Id.
Thus, construing WLAD "to protect employees from adverse employment
actions because they are suspected of having engaged in protected activity is
consistent with the general purposes of the Act and the specific purposes of the anti-
retaliation provisions." Id.(emphasis added); see also Brady v. Autozone Stores, Inc.,
188 Wash. 2d 576, 583, 397 P.3d 120 (2017) (recognizing that because a policy
"ultimately provides greater protection for workers, it is more in tune with other
Washington case law addressing employee rights"). As a result, as long as an
employee presents evidence "suggest[ing] a causal connection between the protected
activity and the subsequent adverse action sufficient to defeat summary judgment,"
that employee has made a prima facie case of retaliation under WLAD. Reich, 32 F.3d
at 367.
Microsoft and amid curiae the Association of Washington Business and the
Chamber of Commerce of the United States of America contest adoption of the "knew
or suspected" standard. They argue that adopting the standard leads to strict liability
for employers, eliminates the causation element of a retaliation prima facie case, and
invites speculation into the summary judgment phase. Of these arguments, none is
persuasive.
The "knew or suspected" test does not lead to strict liability or eliminate the
requirement that a retaliation be intentional. Instead, the test eliminates the right of
employers to intentionally retaliate against employees that they suspect but do not
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No. 94846-1
actually know to have taken protected action. An employee must still produce
sufficient evidence that his or her protected activity was a substantial factor in the
employer's decision to take adverse action against the employee. Allison, 118 Wash. 2d
at 96.
In addition, the standard requires the production of evidence] mere speculation
will not suffice to defeat summary judgment. Grimwood v. Univ. of Puget Sound, Inc.,
110 Wash. 2d 355, 359-60, 753 P.2d 517 (1988)("The 'facts' required by CR 56(e) to
defeat a summary judgment motion are evidentiary in nature. Ultimate facts or
conclusions are insufficient. Likewise, conclusory statements of fact will not suffice."
(citation omitted)). "It is frequently impossible for a plaintiff . . . to discover direct
evidence contradicting someone's contention that he did not know something."
Hernandez, 343 F.3d at 1114. Instead, as long as "[a] reasonable jury could infer from
[a plaintiff's] evidence" that the plaintiff's protected activity was a substantial factor in
the adverse employment decision, that plaintiff has satisfied his or her burden of
establishing a prima facie case of retaliation. Id.
For these reasons, we adopt the "knew or suspected" standard because it
furthers WLAD's purpose of protecting employees from retaliation.
CONCLUSION
In conclusion, we reverse the Court of Appeals. We adopt the "knew or
suspected" standard and hold that Cornwell presented sufficient evidence to create a
dispute of fact about whether there was a causal link between her poor performance
rating and termination and the previous lawsuit she filed against Microsoft. Both Blake
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and McKinley had actual knowledge that Cornwell filed the prior lawsuit against
Microsoft. Shortly after learning this, and over the objection of other managers, they
gave Cornwell the lowest possible review rating, and Cornwell was laid off. In light of
this evidence, the trial court erroneously granted summary judgment to Microsoft.
We reverse and remand the case to the trial court for further proceedings consistent
with this opinion.
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WE CONCUR.
'7%U fiwA
7
20
Cornwell(Dawn) v. Microsoft Corp., No. 94846-1
(Gordon McCloud, J., dissenting)
No. 94846-1
GORDON McCLOUD, J. (dissenting)—I agree with the majority's
main conclusion that a plaintiff can show retaliatory discharge in violation of the
Washington Law Against Discrimination (WLAD), ROW 49.60.030, without
showing that the employer had actual knowledge of the plaintiffs prior protected
activity. A plaintiffs showing that the employer suspected that the plaintiff had
previously engaged in WLAD-protected activity is enough to establish the
causation requirement of a WLAD retaliatory discharge claim. Majority at 13-16.
But I disagree with the majority's application of that legal standard to
the facts of this case. The majority identifies nothing in the record showing that
Dawn Comwell's current supervisors knew or suspected that her prior lawsuit
involved the WLAD-prohibited activity of sex discrimination.
I say that because the majority holds that the following facts, alone,
suffice to satisfy the knowledge or suspicion element of WLAD causation:
(1) Comwell's supervisors knew that she had previously brought a lawsuit against
Cornwell(Dawn) v. Microsoft Corp., No. 94846-1
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Microsoft Corporation^,(2)those supervisors knew that the lawsuit had involved a
male supervisor, and (3)those supervisors knew that the lawsuit had involved a
review score. Id. at 2. Indeed, the majority accepts Microsoft's assertion that
Comwell's supervisors "did not know the specific nature of the lawsuit—i.e., that
it involved an allegation of discrimination in violation of WLAD." Id. at 11
(emphasis added). Thus, the majority ends up holding that because Comwell's
supervisor knew that her prior lawsuit had "involved a review score and male
supervisor," her present claim was entitled to survive Microsoft's motion for
summary judgment. Id. at 12(emphasis added).
I disagree. That analysis creates a standard that is both significantly
over-inclusive in certain respects and significantly under-inclusive in other respects.
The majority's analysis is over-inclusive because it assumes that a
female employee's lawsuit about a male supervisor and a review score could not
have alleged anything but sex discrimination. But that is incorrect. A female
employee could bring a lawsuit related to her review score and her male supervisor
that sounds in tort. Depending on the explanation that the male supervisor provided
for the review score that he gave his female employee,such a lawsuit might advance
' Like the majority, I use the parties' terminology. See majority at 2 n.1.
2
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claims for negligent infliction of emotional distress, intentional infliction of
emotional distress, or defamation.
Besides common law torts, such a lawsuit could allege any number of
statutory retaliation claims that do not implicate the WLAD. For example, a male
supervisor could give a female employee a poor review score because she submitted
a safety complaint, in violation of RCW 49.17.160. Or a male supervisor might
give a female employee a poor review score because she told her coworkers that
she thinks they should form a union, in violation of 29 U.S.C. § 158(a)(3). A male
supervisor could give a female employee a poor review score because he thought
that she was insufficiently committed to the company after she spent two weeks
serving on a jury trial—in violation of RCW 2.36.165(2). As yet another example,
a male supervisor might give a female employee a poor review score because she
blew the whistle under the Sarbanes-Oxley Act of 2002, an 18 U.S.C. § 1514A
violation. Or a male supervisor could give a female employee a poor review score
because she refused to disclose her login information to her personal social
networking account, access her personal social networking account in the
supervisor's presence, add a contact of the supervisor's selection to her personal
social networking account, or alter the view settings of her personal social
networking account—all in violation of RCW 49.44.200(1)(e). A female
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employee's refusal to take a 23andMe DNA (deoxyribonucleic acid) test, even
though everybody else in the department was doing so and thought that looking at
the results was great fun, might also generate a poor review score from a male
supervisor, violating 42 U.S.C. § 2000ff-l(b). A male supervisor might also give a
female employee a poor review score because she declined to support the
company's—or her supervisor's—^preferred candidate or political party,
implicating RCW 42.17A.495(2). A male supervisor could also give a female
employee a poor review score because he thought that her invocation of federal
bankruptcy protections in her personal life made her unreliable and untrustworthy,
in violation of 11 U.S.C. § 525(b). Annoyed at the increased paper work in his life,
a male supervisor could also give a female employee a poor review score because
she filed a workers' compensation claim—rurming afoul of RCW 51.48.025(1).
Likewise, a male supervisor might give a female employee a poor review score
because she took action to stop her employer from defrauding the federal
government, implicating 31 U.S.C. § 3730(h)(1).
All of these supervisory actions would be illegal—but none would
violate the WLAD. They would violate other statutes. For this reason, the
majority's conclusion that a female employee's review-score lawsuit against a male
employer must have been gender-based is impermissibly overbroad. It includes
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within the WLAD's scope even claims in which the employee fails to show that the
employer knew or suspected that the employee engaged in WLAD-^xotQoXQd
activity.
The majority justifies its analysis by asserting that the supervisors'
"knowledge about the substance of the suit is" immaterial. Majority at 11.
According to the majority, "the decision-maker need have actual knowledge only
that the employee took the action in order to prove a causal connection." Id. The
majority cites Wilmotv. Kaiser Aluminum and Chemical Corp. for that proposition.
Id.; see 118 Wash. 2d 46, 69, 821 P.2d 18 (1991). But that is not what Wilmot held.
Wilmot involved claims for wrongful termination in violation of public policy. 118
Wash. 2d at 51-52. The plaintiffs alleged that their employers fired them because they
had filed workers' compensation claims. Id. We held "that a plaintiff may establish
the required case by showing that the worker filed a workers' compensation claim,
that the employer had knowledge of the claim, and that the employee was
discharged." Id. at 69. But that"knowledge ofthe claim" language was a reference
to the fact that in Wilmot, the substance of the claims—^that is, that they were
workers' compensation claims—was well known to the employers when they fired
the employees. Id. at 51; Moran v. Wash. Fruit & Produce,60 Wn. App. 548, 550,
804 P.2d 1287(1991), rev'dby Wilmot, 118 Wash. 2d at 79. Wilmot did not involve a
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mysterious prior claim that inspired "detective work," as this case does. Clerk's
Papers at 156. Moreover, Wilmot concluded that a plaintiff must show that at least
part of the employer's ''motivation for the discharge was the employee's exercise
of or intent to exercise the statutory rights." 118 Wash. 2d at 68-69(emphasis added);
see also id. at 67 (requiring a showing of the employer's "'motivat[ion]'"(quoting
Thompson v. St. Regis Paper Co., 102 Wash. 2d 219, 232, 685 P.2d 1081 (1984))).
Here, contrary to the WLAD and contrary to Wilmot, the majority discards the
requirement that knowledge or suspicion of IfX^D-protected activity was a
substantial factor in the adverse employment action. Once again, the majority's
analysis is over-inclusive.
But the majority's approach is also under-inclusive in a different
respect. There is no doubt that the history ofgender discrimination in the workplace
is basically a history of gender discrimination against women. See generally Cal.
Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 286, 107 S. Ct. 683,93 L. Ed. 2d
613(1987)(purpose of antidiscrimination legislation at issue was to "provide relief
for working women and to end discrimination against pregnant workers"); Muller
V. Oregon, 208 U.S. 412, 28 S. Ct. 324, 52 L. Ed. 551 (1908) (detailing and
justifying history of limitations on women in the workplace). But there is also no
doubt that male supervisors can violate their male employees' rights to be free of
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sex discrimination in the workplace and so too can female supervisors vis-a-vis
female or male employees. See, e.g., Oncale v. Sundowner Offshore Servs., 523
U.S. 75, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998)(sex discrimination includes
sexual harassment by male supervisor against male employee); Nichols v. Azteca
Rest. Enters., Inc., 256 F.3d 864 (9th Cir. 2001)(male coworkers' type of verbal
abuse of male employee constituted sexual harassment). I fear that the majority's
standard fails to take account of those discrimination claims.
In sum, the majority has not identified any facts showing that the
supervisors in this case knew or suspected that Cornwell previously engaged in
WLAD-protected activity. For that reason, I respectfully dissent.
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