MacDonald v. Grace Church Seattle

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SUZANNE MACDONALD, 
Plaintiff-Appellant,
v. No. 04-35984
GRACE CHURCH SEATTLE; PACIFIC  D.C. No.
CV-03-02955-RSL
NORTHWEST PRESBYTERY OF THE
PRESBYTERIAN CHURCH IN AMERICA; OPINION
PRESBYTERIAN CHURCH (U.S.A.),
Defendants-Appellees.

Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted
June 9, 2006—Seattle, Washington
Filed August 11, 2006
Before: David R. Thompson, A. Wallace Tashima, and
Consuelo M. Callahan, Circuit Judges.
Opinion by Judge Thompson
9419
MACDONALD v. GRACE CHURCH SEATTLE 9423
COUNSEL
Kathleen Phair Barnard, Seattle, Washington, for the plaintiff-
appellant.
Steven T. O’Ban, Seattle, Washington, for defendant-appellee
Grace Church Seattle.
Laurie L. Johnston, Seattle, Washington, for defendants-
appellees Pacific Northwest Presbytery of the Presbyterian
Church in America and Presbyterian Church (U.S.A.).
OPINION
THOMPSON, Senior Circuit Judge:
Plaintiff-Appellant Suzanne MacDonald (MacDonald)
appeals the district court’s dismissal of her Title VII claims
against the defendant nonprofit religious organizations for
sexual harassment and retaliation because she failed to file her
charges with the Equal Employment Opportunity Commission
(EEOC) within 180 days of the last alleged discriminatory act.
She asserts that the longer 300-day filing deadline (with
which she complied) applies because the Washington State
Human Rights Commission (Washington Commission) had
subject matter jurisdiction over her charges. She argues that
even though the Washington Law Against Discrimination
exempts nonprofit religious organizations from the definition
of “employer,” the Washington Commission had subject mat-
ter jurisdiction because it is designated as a Fair Employment
Practice (FEP) agency by the EEOC. She also contends that
the Washington Commission had subject matter jurisdiction
because the Washington Law Against Discrimination contains
9424 MACDONALD v. GRACE CHURCH SEATTLE
provisions that prohibit sex discrimination and retaliation by
parties other than “employers.”
MacDonald further argues, for the first time on appeal, that
the exemption of nonprofit religious organizations from
employment discrimination liability under the Washington
Law Against Discrimination violates the Establishment and
Equal Protection Clauses of the United States Constitution.
She contends that because the nonprofit religious organization
exemption is unconstitutional, the defendants were not
exempt from her charges, the Washington Commission had
subject matter jurisdiction to consider her charges, and there-
fore the 300-day filing deadline applies. Exercising our dis-
cretion, we decline to consider this constitutional argument
raised for the first time in these appellate proceedings.
We have jurisdiction under 28 U.S.C. § 1291 and affirm the
district court’s dismissal of MacDonald’s Title VII claims.
The Washington Commission did not have subject matter
jurisdiction over MacDonald’s charges and therefore the 180-
day deadline applies for the required filing with the EEOC.
MacDonald did not file her charges with the EEOC within the
180-day time limit, and as a result her Title VII claims were
properly dismissed.
I. BACKGROUND
On February 21, 2003, MacDonald filed a charge with the
Washington Commission and the EEOC, alleging gender dis-
crimination and retaliation under Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e, et seq., by defendants Grace
Church Seattle (Grace), The Pacific Northwest Presbytery of
the Presbyterian Church in America (PNWP), and The Pres-
byterian Church in America (PCA).1 MacDonald, an office
administrator for Grace, alleged that she had been sexually
1
Grace is a local church. The PNWP is a regional presbytery. The PCA
is the national body of the denomination.
MACDONALD v. GRACE CHURCH SEATTLE 9425
harassed by Grace’s pastor, who was her supervisor. Mac-
Donald alleged that the last discriminatory act occurred on
April 30, 2002, when she was allegedly terminated from her
employment by the defendants in retaliation for reporting the
pastor’s sexual harassment. She filed her charges with the
EEOC and with the Washington Commission more than 180
days, but less than 300 days, after the last act of alleged dis-
crimination. On July 2, 2003, the EEOC dismissed MacDon-
ald’s charges.
MacDonald then filed this action alleging gender discrimi-
nation and retaliation under Title VII, wrongful discharge in
violation of the public policy of the State of Washington, and
invasion of privacy under the common law of the State of
Washington. MacDonald alleged that the defendants Grace,
PNWP and PCA were all her “employer” as defined in Title
VII. MacDonald did not plead any claims under the Washing-
ton Law Against Discrimination.
The district court granted the defendants’ motions to dis-
miss, holding that MacDonald’s Title VII claims were
untimely because she failed to file her charge with the EEOC
within 180 days of the last alleged discriminatory employ-
ment practice.2 The district court held that the longer 300-day
filing period was not available to MacDonald because the
Washington Commission, the relevant FEP agency, did not
have subject matter jurisdiction over her charges because non-
profit religious organizations are exempt from the Washing-
ton Law Against Discrimination’s employment discrimination
provisions.
MacDonald filed a motion for reconsideration, which the
district court denied. MacDonald argued that the Washington
2
The district court also dismissed with prejudice MacDonald’s invasion
of privacy claim and dismissed without prejudice her discharge in viola-
tion of public policy claim. MacDonald does not appeal the dismissal of
those claims.
9426 MACDONALD v. GRACE CHURCH SEATTLE
Commission had jurisdiction over her claims and thus she was
entitled to the 300-day filing period because the EEOC regu-
lations designated the Washington Commission as a FEP
agency to hear her discrimination claims without any excep-
tion for charges against a nonprofit religious organization.
She also argued that the Washington Commission had subject
matter jurisdiction over her retaliatory discharge claim on the
ground that the defendants were “persons,” in addition to
being her “employers,” under the retaliation provision of the
Washington Law Against Discrimination. The district court
disagreed, denied MacDonald’s motion for reconsideration,
and this appeal followed.
II. STANDARD OF REVIEW
In dismissing MacDonald’s complaint, the district court
mistakenly applied Federal Rule of Civil Procedure 12(b)(6).
See Elvig v. Calvin Presbyterian Church, 375 F.3d 951, 954
(9th Cir. 2004). “A Rule 12(b)(6) motion must be made
before the responsive pleading.” Id. (citing Fed. R. Civ. P.
12(b)(6)). “Here, the [d]efendants filed their motion to dis-
miss after filing their answer.” Id. “Thus, the motion should
have been treated as a motion for judgment on the pleadings,
pursuant to Rule 12(c) or 12(h)(2).” Id. Accordingly, we treat
the district court’s dismissal of MacDonald’s Title VII claims
as a grant of a motion for judgment on the pleadings. See id.
at 954-55.
“We review de novo a district court’s dismissal of a com-
plaint [by] judgment on the pleadings.” See id. at 955. We
accept as true all allegations in MacDonald’s complaint and
treat as false those allegations in the answer that contradict
MacDonald’s allegations. See id. We review a district court’s
denial of a motion for reconsideration for an abuse of discre-
tion. See Smith v. Pacific Props. & Dev. Corp., 358 F.3d
1097, 1100 (9th Cir. 2004).
MACDONALD v. GRACE CHURCH SEATTLE 9427
III. DISCUSSION
A. Title VII Time Limits for Filing Charges with the
EEOC
[1] Title VII establishes two potential time limitations peri-
ods within which a plaintiff must file an administrative charge
with the EEOC. See 42 U.S.C. § 2000e-5(e)(1).3 Generally, a
Title VII plaintiff must file an administrative charge with the
EEOC within 180 days of the last act of discrimination. See
id. However, the limitations period is extended to 300 days if
the plaintiff first institutes proceedings with a “State or local
agency with authority to grant or seek relief from such prac-
tice.” Id.
[2] The EEOC’s regulations provide that the 180-day time
limit applies if the State or local FEP agency4 lacks subject
matter jurisdiction over a charge:
A jurisdiction having a FEP agency without subject
matter jurisdiction over a charge (e.g., an agency
which does not cover sex discrimination or does not
cover nonprofit organizations) is equivalent to a
3
42 U.S.C. § 2000e-5(e)(1) provides that:
A charge under this section shall be filed within one hundred and
eighty days after the alleged unlawful employment practice
occurred . . . except that in a case of an unlawful employment
practice with respect to which the person aggrieved has initially
instituted proceedings with a State or local agency with authority
to grant or seek relief from such practice or to institute criminal
proceedings with respect thereto upon receiving notice thereof,
such charge shall be filed by or on behalf of the person aggrieved
within three hundred days after the alleged unlawful employment
practice occurred . . . .
4
FEP agency means “a State or local agency which the [EEOC] has
determined satisfies the criteria stated in section 706(c) of title VII [42
U.S.C. § 2000e-5(c)].” 29 C.F.R. § 1601.3(a); see also 29 C.F.R.
§ 1601.70.
9428 MACDONALD v. GRACE CHURCH SEATTLE
jurisdiction having no FEP agency. Charges over
which a FEP agency has no subject matter jurisdic-
tion are filed with the Commission upon receipt and
are timely filed if received by the Commission
within 180 days from the date of the alleged viola-
tion.
29 C.F.R. § 1601.13(a)(2).
MacDonald filed her administrative charge with the EEOC
more than 180 days, but less than 300 days, after the last
alleged discriminatory act. She simultaneously filed an
administrative charge with the Washington Commission, the
relevant FEP agency.
The parties dispute whether the 180-day or the 300-day
time limit applies. MacDonald contends that the 300-day time
limit applies because the Washington Commission is a FEP
agency with subject matter jurisdiction over her charges. The
defendants argue, and the district court held, that the 180-day
time limit applies because the Washington Commission did
not have subject matter jurisdiction over MacDonald’s
charges because the defendants, as nonprofit religious organi-
zations, are exempt from employment discrimination charges
under the Washington Law Against Discrimination. See
Wash. Rev. Code § 49.60.040(3).
B. The Washington Commission’s Designation as a FEP
Agency without Exception
[3] MacDonald contends that the Washington Commission
is a FEP agency with subject matter jurisdiction over all dis-
crimination charges because of its designation as such an
agency by the EEOC. Pursuant to 29 C.F.R. § 1601.70(a), the
EEOC may designate state and local agencies as “FEP agen-
cies.” If the EEOC determines that a state or local agency
does not come within the definition of a FEP agency for pur-
poses of a particular ground of discrimination, the agency is
MACDONALD v. GRACE CHURCH SEATTLE 9429
deemed a “Notice Agency” as opposed to a FEP agency. See
29 C.F.R. § 1601.71(b). The EEOC lists designate FEP agen-
cies at 29 C.F.R. § 1601.74(a).5 For some charges, the EEOC
has explicitly footnoted exceptions to an agency’s designation
as a FEP agency and has instead deemed it a Notice Agency
for those types of charges.6 See, e.g., 29 C.F.R. § 1601.74(a)
n.2 (“The Arlington Human Rights Commission has been des-
ignated as a FEP agency for all charges except those alleging
a violation of Title VII by a government, government agency,
or political subdivision of the State of Virginia. For these
types of charges it shall be deemed a ‘Notice agency,’ pursu-
ant to 29 C.F.R. § 1601.71(b).”). The Washington Commis-
sion is designated as a FEP agency without any exception for
any particular charge. See 29 C.F.R. § 1601.74(a). MacDon-
ald argues that because the EEOC has explicitly footnoted
exceptions for certain charges for other agencies, but not for
the Washington Commission, the Washington Commission
has subject matter jurisdiction over all discrimination charges.
We disagree.
[4] The EEOC footnotes in 29 C.F.R. § 1601.74(a) are not
the exclusive list of exceptions to a FEP agency’s subject mat-
ter jurisdiction over particular charges. If they were, the dis-
tinction between FEP agencies with and without subject
matter jurisdiction in 29 C.F.R. § 1601.13(a)(2) would be super-
fluous.7 In addition, none of the FEP agency exceptions foot-
5
Approximately 120 state and local agencies are designated as FEP
agencies in 29 C.F.R. § 1601.74(a).
6
There are ten exceptions footnoted, deeming certain agencies as Notice
agencies rather than FEP agencies for particular types of charges. See 29
C.F.R. § 1601.74(a).
7
29 C.F.R. § 1601.13(a)(2) provides that:
A jurisdiction having a FEP agency without subject matter juris-
diction over a charge (e.g., an agency which does not cover sex
discrimination or does not cover nonprofit organizations) is
equivalent to a jurisdiction having no FEP agency. Charges over
which a FEP agency has no subject matter jurisdiction are filed
9430 MACDONALD v. GRACE CHURCH SEATTLE
noted in 29 C.F.R. § 1601.74(a) resembles the additional two
examples of FEP agencies without subject matter jurisdiction
provided in 29 C.F.R. § 1601.13(a)(2): “e.g., an agency which
does not cover sex discrimination or does not cover nonprofit
organizations.”8 See 29 C.F.R. § 1601.74(a). Although the
Washington Commission is not included in the footnotes in
29 C.F.R. § 1601.74(a), the exception for nonprofit religious
organizations set forth in the Washington Law Against Dis-
crimination is similar to the example of a FEP agency’s lack
of subject matter jurisdiction over a nonprofit organization set
forth in 29 C.F.R. § 1601.13(a)(2). Further, decisions by other
with the Commission upon receipt and are timely filed if received
by the Commission within 180 days from the date of the alleged
violation.
If, as MacDonald contends, the EEOC footnotes in 29 C.F.R. § 1601.74(a)
are the exclusive list of exceptions to a FEP agency’s subject matter juris-
diction over particular charges, then there would be no need in 29
C.F.R.§ 1601.13(a)(2) to refer to “a FEP agency without subject matter
jurisdiction over a charge.” Instead, 29 C.F.R.§ 1601.13(a)(2) would refer
to a “Notice Agency.” This provides some indication that a FEP agency’s
lack of subject matter jurisdiction over a charge is not limited solely to
those charges for which it is deemed a Notice Agency (i.e., the EEOC
footnotes in 29 C.F.R. § 1601.74(a)).
8
Two generic examples of “a FEP agency without subject matter juris-
diction” over particular charges are set forth in 29 C.F.R. § 1601.13(a)(2).
One example is “an agency which does not cover sex discrimination”
charges; the other example is an agency which “does not cover [charges
against] nonprofit organizations.” 29 C.F.R. § 1601.13(a)(2). MacDonald
argues that the EEOC footnotes in 29 C.F.R. § 1601.74(a) are the exclu-
sive list of exceptions to a FEP agency’s subject matter jurisdiction over
particular charges. That argument fails, however, because none of the
allegedly exclusive exceptions involves the two generic examples of non-
jurisdiction provided in 29 C.F.R. § 1601.13(a)(2). It would be bizarre for
the regulations to, on the one hand, set forth a specific and exclusive list
of exceptions and then, on the other hand, give two generic examples of
additional exceptions that do not appear in the supposed “exclusive” list.
This supports the view that there are charges over which a FEP agency
may lack subject matter jurisdiction in addition to those listed in the
EEOC footnotes in 29 C.F.R. § 1601.74(a).
MACDONALD v. GRACE CHURCH SEATTLE 9431
courts support the view that the footnotes in 29 C.F.R.
§ 1601.74(a) do not provide the exclusive exceptions to a FEP
agency’s subject matter jurisdiction. See Dezaio v. Port Auth.,
205 F.3d 62, 65-66 (2d Cir. 2000) (determining that the New
York State Division on Human Rights lacked subject matter
jurisdiction over charge against Port Authority even though it
is designated in 29 C.F.R. § 1601.74(a) as a FEP agency with-
out exception); Vitug v. Multistate Tax Comm’n, 860 F. Supp.
546, 550-51 (N.D. Ill. 1994) (determining that the Illinois
Department of Human Rights lacked subject matter jurisdic-
tion over charge against small employer even though it is des-
ignated in 29 C.F.R. § 1601.74(a) as a FEP agency without
exception).
[5] As a result, the EEOC’s designation in 29 C.F.R.
§ 1601.74(a) of the Washington Commission as a FEP agency
without exception as to any charge is not determinative of
whether the Washington Commission had subject matter
jurisdiction over MacDonald’s charges. To decide that ques-
tion, we must examine Washington State law to determine
whether the Washington Law Against Discrimination pre-
cluded the Washington Commission’s consideration of Mac-
Donald’s charges.
C. Permissibility of Looking to State Law to Determine a
FEP Agency’s Subject Matter Jurisdiction
MacDonald argues that EEOC v. Commercial Office Prod.
Co., 486 U.S. 107 (1988), prohibits engaging in an analysis
of state law to determine whether the Washington Commis-
sion had subject matter jurisdiction over her charges. In Com-
mercial Office, the Supreme Court held that a plaintiff who
filed an administrative discrimination charge that was
untimely under state law was nonetheless entitled to the 300-
day time limit for filing with the EEOC. See id. at 123. The
defendant employer had argued that the 300-day federal filing
time limit was inapplicable in the absence of a timely filing
under state law because the state agency lacked the requisite
9432 MACDONALD v. GRACE CHURCH SEATTLE
“authority to grant or seek relief.” See id. at 122-23. The
Supreme Court rejected this argument, stating that “the words
‘authority to grant or seek relief’ refer merely to enabling leg-
islation that establishes state or local agencies, not to state
limitations requirements.” Id. at 123. In holding that “state
time limits for filing discrimination claims do not determine
the applicable federal time limit,” the Supreme Court rea-
soned that:
Title VII also is a remedial scheme in which lay per-
sons, rather than lawyers, are expected to initiate the
process. The importation of state limitations periods
into § 706(e) [42 U.S.C. § 2000e-5(e)] not only
would confuse lay complainants, but also would
embroil the EEOC in complicated issues of state
law. In order for the EEOC to determine the timeli-
ness of a charge filed with it between 180 and 300
days, it first would have to determine whether the
charge had been timely filed under state law,
because the answer to the latter question would
establish which of the two federal limitations periods
should apply. This state-law determination is not a
simple matter. The EEOC first would have to deter-
mine whether a state limitations period was jurisdic-
tional or nonjurisdictional. And if the limitations
period was nonjurisdictional, like Colorado’s in this
case, the EEOC would have to decide whether it was
waived or equitably tolled. The EEOC has neither
the time nor the expertise to make such determina-
tions under the varying laws of the many deferral
States and has accordingly construed the extended
300-day period to be available regardless of the state
filing.
Id. at 123-24.
[6] Contrary to the position asserted by MacDonald, the
Supreme Court in Commercial Office indicated that it is per-
MACDONALD v. GRACE CHURCH SEATTLE 9433
missible to look to “enabling legislation that establishes state
or local agencies” to determine whether an agency has the
“authority to grant or seek relief.” Id. at 123. In the present
case, the State of Washington’s enabling statute is the Wash-
ington Law Against Discrimination and it specifies whether
the Washington Commission has the “authority to grant or
seek relief” regarding MacDonald’s charges. The Washington
Law Against Discrimination limits the jurisdiction of the
Washington Commission “[t]o receive, impartially investi-
gate, and pass upon complaints alleging unfair practices as
defined in this chapter.” Wash. Rev. Code § 49.60.120(4)
(emphasis added). Further, under Wash. Rev. Code
§ 49.60.120(7), the Washington Commission’s jurisdiction is
expressly limited to claims that would constitute an unfair
practice under the Washington Law Against Discrimination:
“[T]he powers which may be exercised by the commission
under this subsection permit investigations and complaint dis-
positions only if the investigations are designed to reveal, or
the complaint deals only with, allegations which, if proven,
would constitute unfair practices under this chapter.” Wash.
Rev. Code § 49.60.120(7) (emphasis added). Because the
Washington Law Against Discrimination, which is the
enabling statute, limits the Washington Commission’s subject
matter jurisdiction, we must analyze the scope of that state
law.
[7] In addition, 29 C.F.R. § 1601.13(a)(2) indicates that it
is permissible to look to state law to determine whether a FEP
agency has subject matter jurisdiction over a charge. This reg-
ulation explicitly requires ascertaining whether or not a FEP
agency has subject matter jurisdiction in order to determine
whether the 180-day or 300-day time limit applies. See 29
C.F.R. § 1601.13(a)(2). Commercial Office did not consider
29 C.F.R. § 1601.13(a)(2) because it concerned state time
limits as opposed to a state agency’s subject matter jurisdic-
tion.
[8] Subsequent to Commercial Office, other courts have
looked to state law to ascertain whether a state or local agency
9434 MACDONALD v. GRACE CHURCH SEATTLE
had subject matter jurisdiction over a discrimination charge to
determine whether the 180-day or 300-day time limit applies.
See Dezaio, 205 F.3d at 65-66 (looking to New York anti-
discrimination laws and bi-state Compact creating Port
Authority to determine that the New York State Division on
Human Rights lacked subject matter jurisdiction over charge
against Port Authority); Vitug, 860 F. Supp. at 550-51 (looking
to Illinois Human Rights Act to determine that the Illinois
Department of Human Rights lacked subject matter jurisdic-
tion over employer with less than fifteen employees).
[9] We conclude that it is appropriate to look to the Wash-
ington Law Against Discrimination to determine whether the
Washington Commission had subject matter jurisdiction over
MacDonald’s charges.
D. The Washington Commission’s Subject Matter
Jurisdiction Over MacDonald’s Charges
The Washington Law Against Discrimination exempts
nonprofit religious organizations, such as the defendants,
from the definition of “employer.” See Wash. Rev. Code
§ 49.60.040(3) (“ ‘Employer’ . . . does not include any reli-
gious or sectarian organization not organized for private prof-
it.”). Because MacDonald alleges that the defendants were her
“employer,” her charges against them as employers are
exempt from the Washington Commission’s subject matter
jurisdiction, and thus the 300-day time limit does not apply.
To avoid this result, MacDonald argues for the first time on
appeal that such an exemption violates the Establishment and
Equal Protection Clauses of the United States Constitution.
She also argues that the Washington Law Against Discrimina-
tion contains provisions that prohibit sex discrimination and
retaliation by parties other than “employers” and therefore
applies to the defendants. We first turn to her constitutional
claims.
MACDONALD v. GRACE CHURCH SEATTLE 9435
1. Constitutional Issues
For the first time on appeal, MacDonald argues that the
exemption of nonprofit religious organizations from employ-
ment discrimination charges under the Washington Law
Against Discrimination violates the Establishment and Equal
Protection Clauses of the United States Constitution. She con-
tends that because the Washington state law exemption for
nonprofit religious organizations is unconstitutional, the
Washington Commission had subject matter jurisdiction over
her charges against the defendants and the 300-day filing
deadline applies.
[10] “We will review an issue that has been raised for the
first time on appeal under certain narrow circumstances . . .
[:] (1) to prevent a miscarriage of justice; (2) when a change
in law raises a new issue while an appeal is pending; and (3)
when the issue is purely one of law.” Kimes v. Stone, 84 F.3d
1121, 1126 (9th Cir. 1996) (internal citations omitted). “The
decision to consider an issue not raised below is discretionary,
and such an issue should not be decided if it would prejudice
the other party.” Id.
[11] We decline to consider the constitutionality of the non-
profit religious organization exemption set forth in the Wash-
ington Law Against Discrimination for “employers”
discriminating on the basis of sex. None of the three narrow
circumstances which must exist for us to consider an issue
raised for the first time on appeal is present in this case. Pri-
marily, MacDonald’s constitutional challenge is not a pure
question of law, but rather depends on a determination of fac-
tual matters including whether the Washington Law Against
Discrimination’s nonprofit religious organization exemption
prevents “potentially serious encroachments on protected reli-
gious freedoms.” Texas Monthly, Inc. v. Bullock, 489 U.S. 1,
18 n.8 (1989); cf. Elvig v. Ackles, 98 P.3d 524, 525 (Wash. Ct.
App. 2004) (affirming the dismissal of a minister’s sexual
harassment claims because adjudicating the case “would
9436 MACDONALD v. GRACE CHURCH SEATTLE
require a civil court to impermissibly examine decisions made
by a church tribunal”). Accordingly, we exercise our discre-
tionary power not to review MacDonald’s constitutional
claims which she raises for the first time in this appeal.
2. MacDonald’s Charges Under the Washington Law
Against Discrimination
Apart from her constitutional claims, which we do not con-
sider, MacDonald does not contend that her sexual harass-
ment charge survives under Wash. Rev. Code § 40.60.180,
which exempts nonprofit religious organizations from dis-
crimination by “employers” on the basis of sex. See also
Wash. Rev. Code § 49.60.040(3). However, MacDonald con-
tends that other provisions of the Washington Law Against
Discrimination, namely Wash. Rev. Code §§ 49.60.010,9
49.60.030,10 and 49.60.210(1),11 prohibit sex discrimination
9
Wash. Rev. Code § 49.60.010 provides:
This chapter shall be known as the “law against discrimination”.
It is an exercise of the police power of the state for the protection
of the public welfare, health, and peace of the people of this state,
and in fulfillment of the provisions of the Constitution of this
state concerning civil rights. The legislature hereby finds and
declares that practices of discrimination against any of its inhabi-
tants because of race, creed, color, national origin, families with
children, sex, marital status, age, or the presence of any sensory,
mental, or physical disability . . . are a matter of state concern,
that such discrimination threatens not only the rights and proper
privileges of its inhabitants but menaces the institutions and foun-
dation of a free democratic state. A state agency is herein created
with powers with respect to elimination and prevention of dis-
crimination in employment, in credit and insurance transactions,
in places of public resort, accommodation, or amusement, and in
real property transactions because of race, creed, color, national
origin, families with children, sex, marital status, age, or the pres-
ence of any sensory, mental, or physical disability . . . ; and the
commission established hereunder is hereby given general juris-
diction and power for such purposes.
10
Wash. Rev. Code § 49.60.030 provides in relevant part:
MACDONALD v. GRACE CHURCH SEATTLE 9437
and retaliation by parties other than “employers” and there-
fore apply to the defendants.
[12] MacDonald’s arguments fail because the Washington
Supreme Court broadly held in Farnam v. CRISTA Ministries,
807 P.2d 830, 837 (Wash. 1991), that nonprofit religious
employers are exempt from all provisions of the Washington
Law Against Discrimination. See also City of Tacoma v.
Franciscan Found., 972 Pd. 566, 569 (Wash. Ct. App. 1999)
(stating that the Washington Law Against Discrimination
authorizes the exemption of nonprofit religious employers
from “the law’s reach”). This view is also supported by the
Washington Supreme Court’s decision in Griffin v. Eller, 922
P.2d 788, 789-90 (Wash. 1996). In Griffin, the Washington
Supreme Court relied on Farnam to hold that small employers
are statutorily exempt from all provisions of the Washington
(1) The right to be free from discrimination because of race,
creed, color, national origin, sex, or the presence of any sensory,
mental, or physical disability or the use of a trained dog guide or
service animal by a disabled person is recognized as and declared
to be a civil right. This right shall include, but not be limited to:
(a) The right to obtain and hold employment without discrimina-
tion;
...
(2) Any person deeming himself or herself injured by any act in
violation of this chapter shall have a civil action in a court of
competent jurisdiction to enjoin further violations, or to recover
the actual damages sustained by the person, or both, together with
the cost of suit including reasonable attorneys’ fees or any other
appropriate remedy authorized by this chapter or the United
States Civil Rights Act of 1964 . . . .
11
Wash. Rev. Code § 49.60.210(1) provides that “[i]t is an unfair prac-
tice for any employer . . . or other person to discharge, expel, or otherwise
discriminate against any person because he or she has opposed any prac-
tices forbidden by this chapter . . . .” See also Wash. Rev. Code
§ 49.60.040(1) (expansively defining “person” as including “corpora-
tions”).
9438 MACDONALD v. GRACE CHURCH SEATTLE
Law Against Discrimination.12 See id. at 790 (“Having previ-
ously determined in Farnam that [the Washington Law
Against Discrimination] does not support a private cause of
action against an exempt employer, we are controlled by that
precedent.”). In Griffin, the Washington Supreme Court
affirmed the dismissal of the plaintiff employee’s sexual
harassment and retaliation claims under the Washington Law
Against Discrimination.13 See id. at 789.
[13] Based on the Washington Supreme Court’s decisions
in Farnam and Griffin, we read Washington State case law as
exempting nonprofit religious employers, such as the defen-
dants, from sexual harassment and retaliation charges under
the Washington Law Against Discrimination.14 Thus, the
Washington Commission did not have subject matter jurisdic-
tion over MacDonald’s charges. Accordingly, the 180-day
time limit applies. See 29 C.F.R. § 1601.13(a)(2); see also
12
The Washington Law Against Discrimination exempts employers with
fewer than eight employees, in addition to nonprofit religious organiza-
tions, from the definition of “employer.” See Wash. Rev. Code
§ 49.60.40(3).
13
For her argument that provisions of the Washington Law Against Dis-
crimination other than Wash. Rev. Code § 49.60.180 cover her charges,
MacDonald relies primarily on Marquis v. City of Spokane, 922 P.2d 43,
51 (Wash. 1996), in which the Washington Supreme Court held that an
independent contractor could bring a sex discrimination claim under
Wash. Rev. Code § 49.60.030, even though she was not protected by
Wash. Rev. Code § 49.60.180. However, in Griffin, the Washington
Supreme Court distinguished between the expanded protections found in
Marquis and the statutory employer exemptions of Wash. Rev. Code
§ 49.60.40(3). See 922 P.2d at 789-90. The Washington Supreme Court
stated that “[u]nlike Marquis . . . we are here addressing the issue of a stat-
utory exemption for small employers rather than statutory silence as to
independent contractors.” Id. at 790. Accordingly, Marquis does not alter
our reading of the Washington Supreme Court’s interpretation of the
Washington Law Against Discrimination as exempting nonprofit religious
employers.
14
When interpreting state law, a federal court is bound by decisions of
the state’s highest court. See Nelson v. City of Irvine, 143 F.3d 1196, 1206
(9th Cir. 1998).
MACDONALD v. GRACE CHURCH SEATTLE 9439
Dezaio, 205 F.3d at 65-66 (holding that because the New
York State Division on Human Rights lacked subject matter
jurisdiction over discrimination claim against Port Authority,
plaintiff was subject to 180-day, not 300-day, time limit for
filing EEOC charge); Vitug, 860 F. Supp. at 550-51 (holding
that because the Illinois Department of Human Rights lacked
subject matter jurisdiction over discrimination claim against
employer with less than fifteen employees, plaintiff was sub-
ject to 180-day, not 300-day, time limit for filing EEOC
charge).
IV. CONCLUSION
[14] Although the Washington Commission is generally
considered a FEP agency, it does not have subject matter
jurisdiction over charges against nonprofit religious employ-
ers. See Wash. Rev. Code § 49.60.040(3). We conclude that
federal law recognizes such a limitation on a FEP, see 29
C.F.R. § 1601.13(a)(2), Title VII’s 180-day time limit applies
here, and MacDonald is not entitled to the longer 300-day fil-
ing deadline. We affirm the district court’s dismissal of Mac-
Donald’s Title VII claims and its denial of her motion for
reconsideration.
AFFIRMED.