Barker v. Advanced Silicon Materials, LLC

• Decision Date: 14 February 2006
• Docket Number: No. 23746-0-III.,23746-0-III.
• Court: Washington Court of Appeals
• Parties: Laurie L. BARKER, Appellant, v. ADVANCED SILICON MATERIALS, LLC, (ASIMI), Respondent.

128 P.3d 633

131 Wn. App. 616

Laurie L. BARKER, Appellant, v. ADVANCED SILICON MATERIALS, LLC, (ASIMI), Respondent.

No. 23746-0-III.

Court of Appeals of Washington, Division Three.

February 14, 2006.

COPYRIGHT MATERIAL OMITTED

Steven C. Lacy, East Wenatchee, for Appellant.

Kathryn L. Feldman, Stephen J. Kennedy, Seattle, for Respondent.

SWEENEY, J.

¶ 1 This appeal follows dismissal of claims of sexual discrimination (on summary judgment) and retaliatory discharge (following a bench trial). The question posed on the first claim is whether the employee has made a sufficient showing that the employer's explanation for promoting a man for a position for which she also applied was pretextual. We conclude that her showing on that issue is conclusory and speculative and therefore affirm the summary dismissal of the claim. We also conclude that substantial evidence supports the trial judge's finding of fact that retaliation was not a substantial motivating factor in the employer's decision to fire the employee here, despite the fact that the investigation leading to her discharge was inept. We therefore affirm the dismissal of the employee's complaint.

FACTS

SEX DISCRIMINATION

¶ 2 Advanced Silicon Materials, LLC (ASIMI, formerly Union Carbide), operates a plant with two industrial laboratories in Moses Lake, Washington. Laurie L. Barker started working there as a technician in 1984. She was promoted first to lead technician and then supervisor of one of the labs in 1999. The company made Gene Champion supervisor of the other lab.

¶ 3 ASIMI decided to eliminate the lab supervisor positions and put one lab manager in charge of both labs in December 2001. It planned to demote the other supervisor back to lead technician. The company promoted Mr. Champion and demoted Ms. Barker. Ms. Barker prepared a sex discrimination suit.

RETALIATORY DISCHARGE

¶ 4 Troy Vingom is ASIMI's information systems manager. He began investigating suspected leaks of confidential management information on March 7, 2002, a Thursday. The concern was that someone was tapping into management e-mails. Many employees had never changed their original, insecure e-mail passwords for more secure ones and so the e-mail system was vulnerable.

¶ 5 Ms. Barker served ASIMI with her lawsuit on Monday, March 11. Mr. Vingom was not aware of this. But other managers and the human resources department knew about her suit.

¶ 6 Mr. Vingom began his investigation of voicemail security on March 13. The system had been set up to "lock out" a mailbox extension if an invalid password was entered two or three times. Again, many employees were still using their three-digit telephone extension, the password provisionally created when the system was installed in 1996. And this was common knowledge among ASIMI employees, including Ms. Barker. Ms. Barker had reported the voicemail security problem to management in the mid 1990s, but nothing was done. And she admitted having made unauthorized intrusions into the voicemail of a former director of the human resources department in the past.

¶ 7 Mr. Vingom generated a report of every voicemail lockout since 1996. This report showed the extension from which each failed access attempt had been made. There were a total of 246. One hundred ninety-one originated at the desk of an authorized user. Of the remaining 55, Ms. Barker's extension was the source of 11. Ms. Barker's work area was easily accessible, and people frequently used her telephone.

¶ 8 On March 14, the voicemails of two human resources employees, including human resources director Dean Martinez, locked out following access attempts from Ms. Barker's extension. On March 20, at 3:31 P.M., the voicemail of the company's chief executive officer, Hideo Ueda, locked down from Ms. Barker's extension. This invasion was immediately reported to Mr. Vingom.

¶ 9 Forty-five minutes after the lock-out, Ms. Barker's supervisor, Joe Slanga, was sent to see if Ms. Barker was at her desk. He reported that she was. Ms. Barker claimed that she had arrived just minutes before Mr. Slanga and had been out of the building at 3:31 P.M. Ms. Barker was summarily terminated on March 21, 2002. She then added a claim of retaliatory discharge to her sex discrimination action.

PROCEDURE

¶ 10 ASIMI moved for summary judgment dismissal of both claims. It conceded Ms. Barker's prima facie case of both gender discrimination and retaliation. Ms. Barker conceded that ASIMI had produced an arguably plausible explanation on each claim. ASIMI then argued that Ms. Barker did not make a sufficient showing that the company's explanation for the termination was a pretext.

¶ 11 The trial court summarily dismissed the gender discrimination claim. On the retaliation claim, however, the court found grounds for an inference of pretext sufficient to preclude summary judgment and warrant a trial.

¶ 12 The parties tried the case to a judge, sitting without a jury. The court found that Ms. Barker had not carried her burden of proving by a preponderance that ASIMI retaliated against her. The court believed that the ASIMI managers were inept but sincere in their handling of the voicemail investigation. The court was persuaded that ASIMI sincerely, if misguidedly, believed that Ms. Barker was responsible for the recent attempts to access the voicemails of the human resources director and the chief executive officer. The court entered corresponding written findings of fact and conclusions of law.

¶ 13 Ms. Barker appeals both the summary dismissal of her sex discrimination claim and the judgment dismissing her retaliation claim.

DISCUSSION

SEX DISCRIMINATION CLAIM—SUFFICIENCY OF EVIDENCE

¶ 14 The parties do not dispute the prima facie showing here. Ms. Barker was a qualified woman who was passed over in favor of a man. ASIMI responded that the promotion decision was based on performance. The sole question for us is whether Ms. Barker produced enough evidence of pretext to survive summary judgment.

¶ 15 Ms. Barker first contends that ASIMI's case for nondiscrimination depends entirely on the credibility of Mr. Slanga. She argues that Mr. Slanga supervised both Mr. Champion and Ms. Barker. He prepared the performance evaluations on which ASIMI relied. Ms. Barker suggests that Mr. Slanga single-handedly engineered Mr. Champion's promotion despite Ms. Barker's superiority. As evidence of this, she points to deposition testimony that another employee thought Mr. Slanga was a liar. Ms. Barker also alleged that Mr. Slanga is a homosexual. She believed he was attracted to Mr. Champion.

¶ 16 Ms. Barker produced deposition testimony from several witnesses that she had been a particular favorite of Mr. Slanga's and that Mr. Slanga was believed to be "grooming" her to succeed him. She nevertheless contends that in 1999 Mr. Slanga promoted her from lead technician to lab supervisor from a mixed-gender field, solely because other managers were involved in that decision. She offered opinions by other employees that Mr. Champion's evaluations did not reflect his shortcomings.

¶ 17 Ms. Barker concedes that the disputed promotion decision was largely based on an evaluation of employees' management potential conducted by a panel of managers in 2001. From all of this she asserts that a trier of fact could infer that ASIMI deliberately manipulated this process "to hide a discriminatory animus beneath a layer of deceit." Appellant's Br. at 24-25.

¶ 18 ASIMI responds with the performance evaluations underlying the promotion. They are in this record. ASIMI argues that Mr. Champion was clearly the stronger management candidate. Even if a trier of fact were to find that Ms. Barker was marginally more qualified, ASIMI contends, she could not show disparities "`of such weight and significance that no reasonable person, in the exercise of impartial judgment,'" could have promoted Mr. Champion. See, e.g., Lee v. GTE Fla., Inc., 226 F.3d 1249, 1254 (11th Cir.2000) (quoting Deines v. Tex. Dep't of Protective & Regulatory Servs., 164 F.3d 277, 280-81 (5th Cir.1999)).

¶ 19 Moreover, ASIMI argues that the fact that Mr. Slanga promoted Ms. Barker to lab supervisor over male applicants only two years before (Clerk's Papers (CP) at 32) creates a strong inference that he did not discriminate against her on this occasion. Hill v. BCTI Income Fund-I, 144 Wash.2d 172, 189, 23 P.3d 440 (2001).

¶ 20 In sum, ASIMI argues that the court correctly ruled that Ms. Barker had produced no evidence of gender discrimination, but merely speculation based solely on the fact that a man was chosen.

¶ 21 We review summary judgments de novo; we engage in the same inquiry as the trial court. Pulcino v. Fed. Express Corp., 141 Wash.2d 629, 639, 9 P.3d 787 (2000). The summary judgment order here, unfortunately, does not designate the evidence relied on as required by CR 56(h). We will nonetheless view all facts in this record and their inferences in a light most favorable to the nonmoving party, Ms. Barker. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment should be granted where reasonable minds can reach only one conclusion based on the admissible facts in evidence. Smith v. Safeco Ins. Co., 150 Wash.2d 478, 78 P.3d 1274 (2003).

¶ 22 This is an action for sex discrimination in employment. And so we follow the burden-shifting protocol of McDonnell Douglas Corp. v. Green.¹ Ms. Barker must first show that (1) she is a woman; (2) she applied and was qualified for an available promotion; (3) she was not offered the position; and (4) the promotion went to a male. Kuyper v. Dep't of Wildlife, 79 Wash.App. 732, 735, 904 P.2d 793 (1995). This creates an inference of discrimination which the employer may then rebut by articulating a plausible nondiscriminatory explanation. Hill, 144 Wash.2d at 181, 23 P.3d 440. Ms. Barker made the necessary prima facie showing. And ASIMI rebutted it with evidence that the promotion decision was...