Wash. Court of Appeals published opinion — 857088.pdf

Citation: Wash. Court of Appeals published opinion — 857088.pdf
Jurisdiction: Washington (state)
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Original Source: https://www.courts.wa.gov/opinions/pdf/857088.pdf ↗

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because he or she has opposed any practices forbidden by this chapter, or

because he or she has filed a charge, testified, or assisted in any proceeding under

this chapter.” RCW 49.60.210(1). “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, 189 Wn.2d at 622-23 (quoting Allison v.

Housing Auth., 118 Wn.2d 79, 94, 821 P.2d 34 (1991)). A WLAD retaliation claim

has three elements: “(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.” Cornwell

v. Microsoft Corp., 192 Wn.2d 403, 411, 430 P.3d 229 (2018).

Courts have recognized two methods of proving these elements. The first

is the widely recognized three-step McDonnell Douglas burden-shifting framework.

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For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 85708-8-I

Mackey v. Home Depot USA, Inc., 12 Wn. App. 2d 557, 571, 459 P.3d 371 (2020). 5

“Because direct evidence of discriminatory intent is rare,” we employ the

McDonnell Douglas test where an employee can only produce “‘circumstantial,

indirect, and inferential evidence to establish discriminatory action.’” Id. (quoting

Mikkelsen v. Pub. Util. Dist. No. 1 of Kittias County, 189 Wn.2d 516, 526, 404 P.3d

464 (2017)). First, the employee must produce sufficient circumstantial evidence

to establish a prima facie case of retaliation. 6 Id. Second, if the employee makes

this showing, the burden shifts to the employer to articulate a legitimate,