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

“supported by direct, as opposed to circumstantial, evidence . . . . is not to be

analyzed under the three-step protocol from McDonnell Douglas”) (internal citation

omitted). Direct evidence includes “discriminatory statements by a decision maker

and other ‘smoking gun’ evidence of discriminatory motive.” Fulton v. Dep’t of Soc.

and Health Servs., 169 Wn. App. 137, 148 n.17, 279 P.3d 500 (2012) (quoting Hill

v. BCTI Income Fund-I, 144 Wn.2d 172, 179, 23 P.3d 440 (2001)). Under the

direct evidence test, the employee must produce “direct evidence that the

defendant acted with a discriminatory motive and that the discriminatory motivation

was a ‘significant or substantial factor in an employment decision.’” Kastanis v.

Educ. Emps. Credit Union, 122 Wn.2d 483, 491-92, 859 P.2d 26 (1993) (quoting

Buckley v. Hosp. Corp. of Am., Inc., 758 F.2d 1525, 1529 (11th Cir. 1985)). If the

employee makes this showing, the employer must “show, by a preponderance of

the evidence, that the same decision would have been reached absent the

discriminatory factor.” Id. “In the face of such evidence, the case goes to the

jury.” 7 Id. While this test requires direct evidence, it allows an employee to avoid

the distinct burden of showing pretext.