Wash. Court of Appeals published opinion — D2 52293-4-II Published Opinion.pdf

Citation: Wash. Court of Appeals published opinion — D2 52293-4-II Published Opinion.pdf
Jurisdiction: Washington (state)
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Original Source: https://www.courts.wa.gov/opinions/pdf/D2%2052293-4-II%20Published%20Opinion.pdf ↗

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presumption language. Id. However, the court did so only in determining whether the employee

had established a prima facie case. Id. at 799-800. When addressing the pretext step, the court

did not mention temporal proximity. Id. at 800-02. Instead, the court required additional

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For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 52293-4-II

evidence that the employer’s legitimate, nondiscriminatory reasons for the termination were

pretextual. Id.5

Further, limiting the rule that temporal proximity between protected activity and

termination can create an inference of discrimination to the employee’s burden to show a prima

facie case makes sense. Showing a prima facie case is merely the first step in the McDonnell

Douglas framework and often can be a fairly low bar. But in the pretext step, the employee has

the burden of establishing a question of fact as to motivation regardless of the employer’s

evidence that there was a legitimate, nondiscriminatory reason for the termination. That burden

necessarily must involve more than mere temporal proximity. Otherwise, the legitimate,

nondiscriminatory reason step and the pretext step would be meaningless any time there was

temporal proximity between protected activity and termination.

We conclude that the mere fact that Home Depot terminated Mackey 12 days after she

complained about Krall’s conduct is not sufficient to create an inference that discrimination,

retaliation, or violation of public policy was a substantial motivating factor for Mackey’s

termination.

Without that inference, Mackey cannot sustain her burden of establishing a question of

fact as to pretext. Home Depot’s stated reasons for terminating Mackey were that (1) she