Hill v. BCTI Income Fund-I

Talmadge, J.^*

(concurring in part, dissenting in part) — While I agree with the majority’s disposition of Eleanor Hill’s disability claim under chapter 49.60 RCW, the Washington Law Against Discrimination (WLAD), I cannot so readily agree with the handling of her age-based discrimination claim. I would affirm the jury’s $116,000 verdict for Hill because the “pretext-only” standard applies to claims under WLAD, making the issue of age discrimination in this case one for the jury.

The majority clearly articulates the facts of this case and describes the nature of the evidentiary burden-shifting protocol we have adopted for discrimination claims under WLAD. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973); Kastanis v. Educ. Employees Credit Union, 122 Wn.2d 483, 859 P.2d 26, 865 P.2d 507 (1993). The majority chooses to adopt the United State Supreme Court’s most recent refinement of the protocol on the question of pretext. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000).

But we are dealing today with the interpretation of Washington law, chapter 49.60 RCW, not federal law. While the federal case law is persuasive authority for our interpretation of Washington’s antidiscrimination law, it is not controlling. Martini v. Boeing Co., 137 Wn.2d 357, 363, 971 P.2d 45 (1999); MacKay v. Acorn Custom Cabinetry, Inc., 127 Wn.2d 302, 310, 898 P.2d 284 (1995). This is particularly true where Washington case law has adopted the pretext-only standard and the Legislature has not seen fit to change that interpretation. Soproni v. Polygon Apartment Partners, 137 Wn.2d 319, 327, 971 P.2d 500 (1999) (legislative acquiescence in judicial interpretation of statute).

We adopted the pretext-only standard in Fell v. Spokane Transit Authority, 128 Wn.2d 618, 911 P.2d 1319 (1996), where we noted a plaintiff may establish pretext either by showing the termination decision more likely than not was motivated by discrimination or “the employer’s reasons for the allegedly discriminatory action are unworthy of credence.” Id. at 643 n.32. We further stated: “The question of pretext is generally a question for the trier of fact when there are competing inferences of discrimination in a case.” Id. at 642.

Similarly, in Sellsted v. Washington Mutual Savings Bank, 69 Wn. App. 852, 851 P.2d 716, review denied, 122 Wn.2d 1018 (1993), a case we cited with approval in Fell, the Court of Appeals reversed and remanded the trial court’s summary judgment for the defendant because, once a plaintiff in a discrimination case presents evidence of a prima facie case and the employer proffers nondiscriminatory reasons for the discharge, the plaintiff may survive summary judgment by providing evidence that the employer’s reasons are unworthy of belief or are otherwise a pretext for a discriminatory purpose; to meet this burden, the plaintiff “is not required to produce evidence beyond that already offered to establish a prima facie case.” Sellsted, 69 Wn. App. at 859-60. The court determined the plaintiff’s “evidence establishing a prima facie case and his evidence of pretext together were sufficient to create a genuine issue of material fact as to the reason for his discharge.” Id. at 861. As the court explained, where “the record contains ‘reasonable but competing inferences of. . . discrimination’ because the employer’s reasons have been called into question both by the conflicts among the reasons themselves and by evidence rebutting their accuracy or believability, ‘it is the jury’s task to choose between such inferences.’ ” Id. at 862-63 (quoting Carle v. McChord Credit Union, 65 Wn. App. 93, 102, 827 P.2d 1070 (1992)). “If the factfinder determines that the proffered reasons . . . are not credible, the presumption of an impermissible consideration . . . would permit the conclusion that age was a determining factor.” Sellsted, 69 Wn. App. at 864. Sellsted’s rationale is still compelling.

A final reason for retaining the pretext-only standard is rooted in public policy. The WLAD must be liberally construed to eliminate unlawful discrimination. RCW 49.60.020; Franklin County Sheriff’s Office v. Sellers, 97 Wn.2d 317, 335, 646 P.2d 113 (1982). The pretext-only standard better effectuates the statutory purpose. When all is said and done, if an employee presents a prima facie case of discrimination and there is evidence the employer’s allegedly legitimate reason for its conduct was mere pretext for a discriminatory purpose, the trier of fact should decide, as it did here, if age or any other statutorily protected characteristic was a substantial factor in the employer’s adverse actions against the employee.

I would affirm the jury’s verdict for age discrimination under the WLAD.

Johnson, J., concurs with Talmadge, J. Pro Tern.

Reconsideration denied July 17, 2001.

* Justice Philip Talmadge is serving as a justice pro tempore of the Supreme Court pursuant to Const, art. IV, § 2(a).