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

 

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[Note: This is a summary of an unpublished opinion, which holds no precedential value]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.”