Washington State Law Update: Employment Cases – by Timothy Mitchell

As part of an ongoing series, Timothy Mitchell, managing partner of Cruser Mitchell’s Seattle office, provides monthly updates on the latest developments in Washington insurance defense law. These updates will contain brief summaries and key quotes from recent cases.

Please contact Tim at (253) 509-1874 or tmitchell@cmlawfirm.com if you would like to discuss these cases in greater detail, or have any questions on any other matters involving Washington state law.

EMPLOYMENT

 

CRABTREE v. JEFFERSON HEALTHCARE (12/14/2021)

Holding: Court of Appeals (Div. 3) reversed dismissal of claims of sex discrimination related to the termination of a pregnant employee, holding that there were disputed material facts regarding whether the employer’s stated reasons for the employee’s termination were pretext for discrimination, and (2) the employee’s pregnancy was a substantially motivating factor for her termination.

Key Quotes:

  • “The WLAD bars employers from discharging an employee because of certain characteristics, including sex. RCW 49.60.180(2). The ban on discrimination on the basis of sex includes discrimination on the basis of pregnancy. WAC 162-30-020. A violation of RCW 49.60.180(2) supports a discriminatory discharge claim.”
  • “Summary judgment for an employer is rarely appropriate in a discriminatory discharge case because of the difficulty of proving discriminatory motivation. When the record contains reasonable but competing inferences of both discrimination and nondiscrimination, the trier of fact must determine the true motivation. To avoid summary judgment, the employee must show only that a reasonable jury could find that discrimination was a substantial factor in the employer’s adverse employment action.”
  • “Employees may satisfy the pretext prong of the [burden shifting] framework by offering sufficient evidence to create a genuine issue of material fact . . . that the employer’s articulated reason for its action is pretextual. The ways in which an employee can show that a stated reason for termination was pretext for discrimination include, but are not limited to, that the reason has no basis in fact, it was not really a motivating factor for the decision [or] it lacks a temporal connection to the decision or was not a motivating factor in employment decisions for other employees in the same circumstances.  An employee does not need to disprove each of the employer’s articulated reasons to satisfy the pretext burden of production. Nor does an employee need to prove that discrimination was the only motivating factor in her termination. An employer may be motivated by multiple purposes, both legitimate and illegitimate, when making employment decisions and still be liable under the WLAD. Circumstantial, indirect, and inferential evidence is sufficient to discharge the plaintiff’s burden. If a plaintiff produces evidence at this [] stage to counter the employer’s reasons, the case must be submitted to the jury; if not, the employer is entitled to a dismissal. To overcome an employer’s summary judgment motion, the employee must do more than express an opinion or make conclusory statements. Instead, the facts must be specific and material.  An employee’s assertion of good performance to contradict the employer’s assertion of poor performance does not give rise to a reasonable inference of discrimination. The question is whether the alleged violations were the actual reason for her termination.”

KELLEY v. THE BOEING COMPANY (12/13/2021)
[Note: This is a summary of an unpublished opinion, which holds no precedential value]

Holding: Court of Appeals (Div. 1) affirmed dismissal of wrongful discharge claim when employee alleged termination was retaliation for reporting a supervisor and objections to unfair wage practices, holding employer provided evidence that employee was terminated on other grounds and employee failed to make a prima facie claim.

Key Quotes:

  • “Most employment agreements allow either the employer or employee to terminate the contract “at will.” However, Washington applies a “public policy” exception to the at will doctrine. An employee has a cause of action in tort for wrongful discharge if the discharge of the employee contravenes a clear mandate of public policy. To create a prima facie case for wrongful discharge, the plaintiff must show that they: (1) expressed or exercised a statutory right; (2) the employer fired the employee; and (3) there was a causal connection between the employee’s exercise of their rights and the discharge. Courts look to four situations in determining whether an employee expressed or exercised a statutory right. These four situations include whether an employee (1) refused to commit an illegal act; (2) performed a public duty; (3) exercised a legal right or privilege; or (4) was retaliated against for reporting employer misconduct, also referred to as “whistleblowing.” When an employee alleges a wrongful termination claim under one or more of these scenarios, they have the burden to establish a prima facie case. . . . If the employee shows a violation of public policy, the burden shifts to the employer to produce evidence showing a legitimate, nonpretextual and nonretaliatory reason for the discharge. If the employer shows sufficient evidence, the burden shifts back to the employee to show a pretextual reason for the firing, or, if the employer’s reason is legitimate, to show that the public policy conduct was a substantial factor in the employer discharging the worker.”
  • “RCW 49.46.100 prohibits employer retaliation against employees who assert wage claims, and we have held employers who engage in such retaliation liable in tort for violation of public policy under this provision. Courts have held contractual bonuses are wage claims.”
  • “Generally, an employee manual or handbook can alter at will employment. However, if the manual or handbook includes only general policy statements rather than specific circumstances or specific situations, it does not create an implied contract. Whether an employer has made a specific promise is a question of fact. But, if reasonable minds could not differ in resolving the issue, then a trial court may determine whether a contract promises specific performance as a matter of law.”

NOLAN v. TEKOA OPERATIONS, LLC (12/7/2021)
[Note: This is a summary of an unpublished opinion, which holds no precedential value]

Holding: Court of Appeals (Div. 3) reversed dismissal of disability discrimination, retaliation, and wrongful termination claims brought by a nurse who suffered from PTSD and complained of failure to pay for work performed during scheduled lunch breaks, holding that there were material issues of fact that were disputed, and that a claim for disability under Social Security does not preclude a plaintiff from claiming she was qualified and capable to perform her job while pursuing a claim for disability discrimination.

Key Quotes:

  • “RCW 49.60.180 outlaws employment discrimination based on a disability in addition to employment discrimination based on age, sex, marital status, sexual orientation, race, creed, color, national origin, citizenship or immigration status, military status, and status as a discharged veteran. For purposes of handicap discrimination, RCW 49.60.180 declares: It is an unfair practice for any employer: . . . . (2) To discharge . . . any person from employment because of . . . the presence of any sensory, mental, or physical disability. . . . (3) To discriminate against any person in compensation or in other terms or conditions of employment because of . . . the presence of any sensory, mental, or physical disability.”
  • “RCW 49.60.180(3) demands that an employer reasonably and affirmatively accommodate an employee with a disability unless the accommodation would pose an undue hardship. An employee claiming his or her employer failed to accommodate a disability must prove that (1) the employee suffered from a disability, (2) the employee was qualified to do the job at issue, (3) the employee gave his or her employer notice of the disability, and (4) the employer failed to reasonably accommodate that disability.”
  • “[A]n avowal that one is disabled for purposes of SSDI benefits should not preclude one from denying she was capable of working at her earlier job at the time of her discharge. Nor should a court impose a rebuttable presumption that a claim for Social Security disability precludes an assertion that one can perform the essential functions of her recent employment with reasonable accommodation.”
  • “Summary judgment for an employer is seldom appropriate in employment discrimination cases because of the difficulty of proving discriminatory motivation. Because a smoking gun rarely surfaces in a discrimination case, a plaintiff must usually prove her case through circumstantial evidence.”

JOHNSON v. SILVER SHORES MHP, LLC (11/15/2021)
[Note: This is a summary of an unpublished opinion, which holds no precedential value]

Holding: Court of Appeals (Div. 1) affirmed dismissal of wage claim under Washington Minimum Wage Act (MWA) because plaintiff’s job required that he reside on the premises, but reversed a dismissal of retaliation, unpaid services, unjust enrichment, and quantum meruit claims, based on questions of disputed material fact.

Key Quotes:

  • “The MWA generally requires employers to pay a minimum wage and overtime wages to employees who work more than 40 hours per week. RCW 49.46.020(2).  An employee “includes any individual employed by an employer” with certain exemptions. One exemption applies to any individual whose duties require that he or she reside or sleep at the place of his or her employment or who otherwise spends a substantial portion of his or her work time subject to call, and not engaged in the performance of active duties.”
  • “Wrongful discharge in violation of public policy is a narrow exception to the at-will employment doctrine. The reason for labeling a discharge as “wrongful” arises out of the employer’s duty to conduct its affairs in compliance with public policy. The tort of wrongful discharge in violation of public policy is generally limited to four scenarios: (1) where employees are fired for refusing to commit an illegal act; (2) where employees are fired for performing a public duty or obligation; (3) where employees are fired for exercising a legal right; and (4) where employees are fired for whistleblowing. To establish wrongful discharge in violation of public policy for these scenarios, a plaintiff must show that the discharge may have been motivated by reasons that contravene a clear mandate of public policy. At that point, the burden shifts to the employer to prove that the dismissal was for reasons other than those alleged by the employee. The burden then shifts back to the plaintiff to show that the reasons for termination were pretextual or the public policy linked conduct was a substantial factor motivating the discharge.”
  • “RCW 49.46.100 contains a clear legislative expression condemning retaliation by an employer against an employee who asserts a claim for overtime pay as contrary to the public interest and may provide the basis for a discharge in violation of public policy claim. The language is not limited to successful or valid claims. Therefore, the ability to file an MWA claim is a public policy interest to be protected whether or not the claim proves successful.”
  • “The trial court relied upon the arbitration provision in the employment agreement and its one year limitation as a basis for summary judgment. That was error. We hold the arbitration provision and its one year limitation is void as against public policy to the extent it purports to cut off claims under the MWA and claims for retaliatory discharge for asserting rights under the MWA.”
  • “Basic statutory rights provided by the MWA may not be waived or altered by a collective bargaining agreement, and . . . employees are not required to arbitrate these ‘nonnegotiable’ claims.  Moreover, any agreement between such employee and the employer allowing the employee to receive less than what is due under this chapter shall be no defense to such action. Any agreement to reduce the statute of limitations would decrease an employee’s ability to enforce the wage provision of the MWA. This contravenes the legislative intent demonstrated by the strongly protective measures of the MWA. Therefore, the one year arbitration limitation in [plaintiff]’s employment agreement is void both as to any wage claims and as to a claim of retaliation based on assertion of rights under the MWA.”

WELLSPRING FAMILY SERVICES v. OWEN (10/11/2021)
[Note: This is a summary of an unpublished opinion, which holds no precedential value]

Holding: Court of Appeals (Div. 1) affirmed dismissal of counterclaim seeking to find former employee’s nonsolicitation clause void.

Key Quotes:

  • “RCW 42.62.020(1) provides that a noncompetition covenant is void and unenforceable against an employee unless the employer discloses the terms of the covenant to the employee no later than the time of the acceptance of employment or, if the covenant is entered into at a later date, the employer provides separate consideration for the covenant. A “noncompetition covenant” includes every written or oral covenant, agreement, or contract by which an employee or independent contractor is prohibited or restrained from engaging in a lawful profession, trade, or business of any kind. A “noncompetition covenant” does not include: (a) A nonsolicitation agreement. RCW 49.62.010(4). The statute unambiguously provides that a noncompetition covenant does not include a “nonsolicitation agreement.” A “nonsolicitation agreement” means: an agreement between an employer and employee that prohibits solicitation by an employee, upon termination of employment . . . of any customer of the employer to cease or reduce the extent to which it is doing business with the employer.”
  • “Under RCW 49.62.020 a noncompetition covenant is enforceable where: (1) the terms of the agreement were disclosed no later than when the offer was accepted; (2) the employee’s earnings exceed $100,000 per year; and (3) the employee was not laid off.”

MEYER v. KING COUNTY (7/19/21)
[Note: This is a summary of an unpublished opinion, which holds no precedential value]

Holding: Court of Appeals (Div. 1) affirmed grant of MSJ to former employer of plaintiff against claims that employer discriminated against plaintiff when it refused to consider his job applications, holding that prior settlement on retaliation and disability claims between plaintiff and employer made clear that the parties intended plaintiff not to be eligible for rehire.

CLARITY CAPITAL MANAGEMENT v. SALISH WEALTH MANAGEMENT (7/26/21)
[Note: This is a summary of an unpublished opinion, which holds no precedential value]

Holding: Court of Appeals (Div. 1) affirmed grant of MSJ on claims of breach of contract and tortious interference against former employees, holding that, after the sale of a business, the prior noncompete contracts were not specifically assigned to the purchasing company, and that the employee manual given to the employees was not a binding contract.

Key Quotes:

  • “ An employee seeking to enforce promises in an employee handbook [needs] to prove (1) whether any statements therein amounted to promises of specific treatment in specific situations; (2) if so, whether the employee justifiably relied on any of these promises; and, finally, (3) whether any promises of specific treatment were breached.”
  • “[E]mployers will not always be bound by statements in employment manuals. They can specifically state in a conspicuous manner that nothing contained therein is intended to be part of the employment relationship and are simply general statements of company policy.”

O’MEARA v. HAVE A HEART COMPASSION CARE, INC. (7/19/21)
[Note: This is a summary of an unpublished opinion, which holds no precedential value]

Holding: Court of Appeals (Div. 1) affirmed judgment against employer for claims of quid pro quo sexual harassment in violation of WLAD, retaliation in violation of WLAD, wrongful discharge, and willful withholding of wages.

Key Quotes:

  • “Supervisory authority applies to an individual who employers cloak with apparent authority to affect terms and conditions of their employee’s jobs. Apparent authority exists when [a] principal knowingly permits [an] agent to perform certain acts, or where he holds him out as possessing certain authority.  Additionally, apparent authority exists when [a] principal has placed [an] agent in such position that persons of ordinary prudence are led to believe and assume that the agent is possessed of certain authority, and to deal with him on reliance of such assumption.”
  • “In employment cases, plaintiffs are entitled to recover damages for emotional distress, humiliation, and pain and suffering. Evidence supports an award of noneconomic damages where a plaintiff presents “proof of actual anguish or distress.  Evidence can be provided by the plaintiff’s own testimony, healthcare professionals, or individuals close to the plaintiff.   It is the role of the factfinder to weigh the credibility of the plaintiff as a witness and determine if she in fact suffered mental anguish.”

CAHAN v. FRANCISCAN HEALTH SYSTEM (6/1/21)
[Note: This is a summary of an unpublished opinion, which holds no precedential value]

Holding: Court of Appeals (Div. 1) affirmed dismissal of wrongful termination claims where plaintiff nurse, who was terminated for refusal to meet with management regarding a history of bullying and confrontational behavior, failed to establish that her termination was retaliation for reporting noncompliance with hospital’s policies or motivated by reasons that contravene a clear mandate of public policy (juxtaposing public policy v. internal hospital policies).

Key Quotes:

  • “Absent a contract to the contrary, employees are generally terminable “at will,” i.e. for any reason. In Thompson v. St. Regis Paper Co., our Supreme Court adopted an exception to this general rule by recognizing a cause of action in tort for wrongful discharge if the discharge of the employee contravenes a clear mandate of public policy. We construe the public policy exception narrowly to guard against frivolous lawsuits. Accordingly, claims of termination in violation of public policy have generally been limited to four scenarios: (1) where employees are fired for refusing to commit an illegal act; (2) where employees are fired for performing a public duty or obligation, such as serving jury duty; (3) where employees are fired for exercising a legal right or privilege, such as filing workers’ compensation claims; and (4) where employees are fired in retaliation for reporting employer misconduct, i.e., whistleblowing.”
  • “A plaintiff alleging termination in violation of public policy bears the initial burden to show that his or her discharge may have been motivated by reasons that contravene a clear mandate of public policy.  The plaintiff must also produce evidence that the public-policy-linked conduct was a cause of the firing, and may do so by circumstantial evidence.  If the plaintiff succeeds in presenting a prima facie case, the burden then shifts to the employer to articulate a legitimate nonpretextual nonretaliatory reason for the discharge. If the employer articulates such a reason, the burden shifts back to the plaintiff either to show that the reason is pretextual, or by showing that although the employer’s stated reason is legitimate, the [public-policy-linked conduct] was nevertheless a substantial factor motivating the employer to discharge the worker.”
  • “To determine whether a clear public policy exists, the court asks whether the policy is demonstrated in a constitutional, statutory, or regulatory provision or scheme. Although judicial decisions may establish public policy, courts should proceed cautiously if called upon to declare public policy absent some prior legislative or judicial expression on the subject.  To qualify as a public policy for purposes of the wrongful discharge tort, a policy must be ‘truly public’ and sufficiently clear.  This is because the tort of wrongful discharge is not designed to protect an employee’s purely private interest in his or her continued employment; rather, the tort operates to vindicate the public interest in prohibiting employers from acting in a manner contrary to fundamental public policy.”

 

PETERSON v. NUANCE COMMUNICATIONS, INC. AND VOICEBOX TECHNOLOGIES CORP. (6/28/21)
[Note: This is a summary of an unpublished opinion, which holds no precedential value]

Holding: Court of Appeals (Div. 1) affirmed grant of summary judgment to employer on plaintiff’s severance claims over alleged miscalculation of commissions. Fact specific case.

 

ROBERTSON v. VALLEY COMMUNICATIONS CENTER (6/28/21)
[Note: This is a summary of an unpublished opinion, which holds no precedential value]

Holding: Court of Appeals (Div. 1) affirmed grant of summary judgment to employer on employees claims of Violations of the Washington wage payment and collection law (WPCL), chapter 49.48 RCW, and Washington Minimum Wage Act (MWA), chapter 49.46 RCW.  The court held that Washington had not adopted federal de minimis standards, but that the employees could not prove their damages due to a flawed and therefore inadmissible survey that served as the employees only calculation of alleged damages.

Key Quotes:

  • “The MWA requires employees to be compensated for all hours worked. RCW 49.46.020, .130. Hours worked includes any time an employee is “authorized or required by the employer to be on duty on the employers premises or at a prescribed work place.” WAC 296-126-002(8). Time spent conducting preparatory tasks is considered hours worked.  Compensable preparatory tasks are those which are “integral or necessary to the performance of the job.  When an employee does not have control over when and where preparatory activities can be made, the activities are considered hours worked.”
  • The MWA requires employees to be compensated for all hours worked. RCW 49.46.020; .130. Its federal counterpart, the Fair Labor Standards Act (FLSA) contains a similar requirement. 29 U.S.C. § 206. But, federal courts have adopted the de minimis rule, which makes otherwise compensable work time outside of a scheduled shift noncompensable. To determine when the doctrine applies, courts consider (1) the practical administrative difficulty of recording the additional time; (2) the aggregate amount of compensable time; and (3) the regularity of additional work.   VCC has cited to no substantive state authority that adopts the de minimis doctrine to the MWA. We are aware of one instance where this court has been asked to so apply the de minimis doctrine. We declined the invitation: [W]e are aware of no state authority that applies the de minimis rule, and the State has shown no compelling reason to apply such a rule.
  • “Because the MWA is based upon the FLSA, federal authority under the FLSA often provides helpful guidance. However, the MWA and FLSA are not identical and we are not bound by such authority.  The MWA is to be liberally construed in favor of employees to effectuate the legislative intent to protect wages and assure payment.  If federal case law does not advance this intent, there is no requirement to apply that case law simply because the MWA does not “expressly” differ. Adoption of the de minimis doctrine, which allows otherwise compensable work to be uncompensated, would not advance the legislature’s intent to protect employee wages and assure payment.”

 

CARROLL v. RENTON SCHOOL DISTRICT (6/28/21)
[Note: This is a summary of an unpublished opinion, which holds no precedential value]

Holding: Court of Appeals (Div. 1) affirmed dismissal of employee’s claims for discrimination, harassment, constructive discharge, and retaliation on the basis of race and pregnancy, holding

Key Quotes:

  • “WLAD prohibits employers from discharging or discriminating against any employee on the basis of a protected characteristic, including race and gender. RCW 49.60.180(2)-(3). WLAD is to be construed liberally to accomplish its purpose of preventing practices of discrimination . . . [Plaintiff’s] claims require her to establish discriminatory or retaliatory intent.   Summary judgment is often inappropriate in discrimination cases brought under WLAD, as the evidence will generally contain reasonable but competing inferences of both discrimination and nondiscrimination that must be resolved by a jury. Direct, smoking gun evidence of discriminatory animus is rare, since there will seldom be eyewitness testimony as to the employer’s mental processes. Accordingly, plaintiffs may rely on circumstantial, indirect, and inferential evidence to establish discriminatory action. However, the plaintiff must do more than express an opinion or make conclusory statements to overcome a motion for summary judgment. They must establish specific and material facts to support each element of their prima facie case. When the plaintiff fails to raise an issue of material fact on one or more prima facie element of the claim, summary judgment remains appropriate.”
  • “A plaintiff may establish a prima facie case of discrimination by either offering direct evidence of an employer’s discriminatory intent, or by satisfying the burden-shifting test announced in McDonnell Douglas that gives rise to an inference of discrimination. First, the plaintiff must make a prima facie case of discrimination. If the plaintiff establishes a prima facie case, it creates a rebuttable presumption of discrimination. Second, the burden shifts to the defendant, who must articulate a legitimate, nondiscriminatory reason for the adverse employment action. Third, if the defendant meets this burden, the plaintiff must produce sufficient evidence showing that the defendant’s proffered reason is pretextual.  The plaintiff may demonstrate this 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.”
  • “To establish a prima facie case of hostile work environment, [Plaintiff] must produce evidence that she was subjected to harassing conduct that (1) was unwelcome, (2) was due to her membership in a protected class, (3) affected the terms and conditions of her employment, and (4) is imputable to the employer.”
  • “Constructive discharge occurs where an employer deliberately makes an employee’s working conditions intolerable, thereby forcing the employee to resign.  The court asks whether working conditions would have been so difficult or unpleasant that a reasonable person in the employee’s shoes would have felt compelled to resign.”
  • “To raise a retaliation claim, [Plaintiff] must show (1) she engaged in statutorily protected activity, (2) she suffered an adverse employment action, and (3) there was a causal link between her activity and the other person’s adverse action. Proximity in time between the adverse action and the protected activity, along with evidence of satisfactory work performance, suggests an improper motive. A viable retaliation claim requires a causal connection between the protected activity and the alleged retaliatory action.”

 

THORP v. NEW LIFE CHURCH ON THE PENINSULA (2/23/2021)
[Note: This is a summary of an unpublished opinion, which holds no precedential value]

Holding: Court of Appeals (Div. 2) examined a “superior court’s summary judgment dismissal of . . . claims for wrongful termination in violation of public policy under Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 685 P.2d 1081 (1984) and in violation of the Washington Law Against Discrimination (WLAD).  The claimant held that her employer had terminated her after learning of her romantic involvement with an individual who was not her husband who she was living with in her home under a residential lease.  The employer requested that she no longer reside with this individual, and asked her to break the lease with the individual or move out of her home.

The Court of Appeals held that, while demanding that the employee break the lease would have been an illegal act that violated public policy, the employer gave her an option that was not illegal – moving out of her home while maintaining the lease and allowing the romantic partner to remain there alone.

The Court of Appeals also held that the employer did not terminate her due to her marital status in violation of the WLAD.  The Court held that “Under the WLAD, “marital status” means “the legal status of being married, single, separated, divorced, or widowed.”but the church was exempt from the WLAD because it is a religious organization not organized for private profit. RCW 49.60.040(11). Moreover, “cohabitating or dating relationships are not aspects of ‘marital status’ as these terms are used in the [WLAD].”

Key Quote: “A common law claim of wrongful discharge in violation of public policy is a narrow exception to the at-will employment doctrine. . . . Generally, wrongful discharge claims are limited to four categories: (1) where employees are fired for refusing to commit an illegal act; (2) where employees are fired for performing a public duty or obligation, such as serving jury duty; (3) where employees are fired for exercising a legal right or privilege, such as filing workers’ compensation claims; and (4) where employees are fired in retaliation for reporting employer misconduct, i.e., whistle-blowing.”

 

TALLEY v. SEATTLE PUBLIC SCHOOLS (4/22/21)
[Note: This is a summary of an unpublished opinion, which holds no precedential value]

Holding: Court of Appeals (Div. 1) affirmed grant of MSJ for employment discrimination and retaliation claims, holding that specific facts failed to provide disputed material facts that could support plaintiff’s claims.

Key Quotes:

  • “To overcome summary judgment on a discrimination claim, a plaintiff needs to show only that a reasonable jury could find that the plaintiff’s protected trait was a substantial factor motivating the employer’s adverse actions. To accomplish this, the employee “must do more than express an opinion or make conclusory statements. The employee has the burden of establishing specific and material facts to support each element of his or her prima facie case.  If the plaintiff fails to meet this burden, the defendant is entitled to judgment as a matter of law.”
  • “To establish a claim for hostile work environment, an employee must show that “the harassment (1) was unwelcome, (2) was because of a protected characteristic, (3) affected the terms or conditions of employment, and (4) is imputable to the employer. The harassment must be pervasive enough to alter the conditions of employment and create an abusive working environment. In assessing a claim for hostile work environment, we consider the frequency and severity of the discriminatory conduct; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance. Casual, isolated or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law.”
  • “A prima facie case of disparate treatment requires a showing that the plaintiff (1) is in a protected class, (2) suffered an adverse employment action, (3) was doing satisfactory work, and (4) was treated differently from someone not in the protected class. The adverse employment action must be “tangible,” meaning a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits. It must be more than an inconvenience or alteration of job responsibilities.  And the adverse employment action must occur under circumstances that raise a reasonable inference of unlawful discrimination. A hostile work environment may amount to an adverse employment action. If an employee establishes a prima facie case of disparate treatment, the burden shifts to the employer to show a legitimate, nondiscriminatory reason for the adverse employment action. The burden then shifts back to the employee to show that the employer’s reasons for the adverse action are pretextual, meaning they “(1) have no basis in fact; (2) were not really motivating factors for the decision; or (3) were not motivating factors in employment decisions for other employees in the same circumstances.”