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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nonretaliatory reason for the employment decision. Id. Third, if the employer

meets their burden, the employee must produce sufficient circumstantial evidence

showing that the employer’s stated reason for the decision was pretextual. Id.

While this test allows the employee to survive a motion for summary judgment or

half-time motion based on circumstantial evidence, it also permits an employer to

prevail if the employee is unable to show pretext.

Alternatively, if an employee has direct evidence of their employer’s

retaliatory motivation, the direct evidence test applies. Hegwine v. Longview Fibre

Co., Inc., 162 Wn.2d 340, 359, 172 P.3d 688 (2007) (noting that a WLAD claim

5 The McDonnell Douglas burden-shifting framework originated in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and Washington courts have largely
adopted this framework for evaluating discrimination cases “where the plaintiff lacks direct evidence
of discriminatory animus,” see Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 180, 23 P.3d 440 (2001),
overruled on other grounds by Mikkelsen v. Pub. Util. Dist. No. 1 of Kittias County, 189 Wn.2d 516,
529-32, 404 P.3d 464 (2017).
6 Although Washington courts frequently refer to a plaintiff establishing the elements of a WLAD

claim as having established a “prima facie case,” that terminology is inapplicable where, as here,
an employee seeks to prove a WLAD claim under the direct evidence test instead of the McDonnell
Douglas framework. See Wright v. Southland Corp., 187 F.3d 1287, 1292 (11th Cir. 1999) (“The
phrase ‘prima facie case’” . . . has a meaning under the traditional framework very different from its
meaning under McDonnell Douglas—in the former case it means a case strong enough to go to a
jury.”).