Bennett v. Hardy
| Decision Date | 18 January 1990 |
| Docket Number | No. 56118-4,56118-4 |
| Citation | 784 P.2d 1258,113 Wn.2d 912 |
| Parties | , 57 Fair Empl.Prac.Cas. (BNA) 771, 53 Empl. Prac. Dec. P 39,811, 117 Lab.Cas. P 56,526, 7 IER Cases 1709 Laura BENNETT and Wanda Bowden, Appellants, v. J. Michael HARDY and Ann Hardy, a marital community, Respondents. |
| Court | Washington Supreme Court |
Law Offices of Neil J. Hoff, Paul Lindenmuth, Tacoma, for appellants.
Foster, Pepper & Shefelman, Linda L. Foreman, Bruce A. Coffey, Seattle, for respondents.
Plaintiffs allege age discrimination by their employer but cannot bring a cause of action against him under RCW Ch. 49.60, the state Law Against Discrimination, because he employs fewer than eight employees and thus is not within that statute's definition of employer. The issue presented is whether we should imply a cause of action under a separate statute, RCW 49.44.090, which makes age discrimination an unfair employment practice but does not create a remedy.
Two plaintiffs sued their former employer and his wife 1 alleging age discrimination and wrongful discharge. The trial court granted defendant's motion for summary judgment and dismissed plaintiffs' claims. We note initially that this ruling was not based upon the usual summary judgment determination that there existed no issue of material fact but rather it was a ruling of law in which the court concluded that it lacked jurisdiction to hear plaintiffs' claims. We accepted certification of plaintiffs' appeal from the Court of Appeals. We reverse the trial court's dismissal of plaintiffs' action and remand for trial.
The plaintiffs, Laura Bennett and Wanda Bowden, are twin sisters who were employed as dental hygienists for defendant's predecessor and kept on by defendant when he purchased that dental practice in the late 1970's. Following several years of employment for defendant, plaintiffs allege that statements and conduct of defendant began to single them out, treating them differently from other employees, and in general creating an age-hostile work environment.
Included in plaintiffs' response to defendant's summary judgment motion are allegations that Dr. Hardy suggested to one of the plaintiffs on at least one occasion that she might be suffering from Alzheimer's disease, that Dr. Hardy suggested that perhaps the plaintiffs were too old to be trained in new techniques, and that Dr. Hardy called the cleaning compound used by plaintiffs "witches brew." Plaintiffs also allege that Dr. Hardy interfered with their work productivity by delaying seeing their patients and diverting their patients to other employees, and by refusing to replace their outdated equipment while doing so for other employees. Plaintiffs further allege that Dr. Hardy created a stressful work environment by making offensive comments, including telling plaintiffs that they should "go dance naked in the window." Clerk's Papers, at 104, 109.
In July 1985 defendant terminated plaintiff Bowden who was then 60 years old. Following her sister's discharge plaintiff Bennett contends that Dr. Hardy continued to sustain the hostile work environment. Plaintiffs hired an attorney who informed Dr. Hardy that his discharge of Ms. Bowden constituted age discrimination and wrongful discharge, and that any further action taken against Ms. Bennett would be considered retaliatory. In March 1986 defendant terminated plaintiff Bennett who was then 61 years old.
Plaintiffs allege that their terminations from defendant's employ were based upon their age as well as in retaliation for plaintiff Bennett's resistance to defendants' discriminatory practices. On defendant's motion for summary judgment, the trial court concluded that no statutory cause of action for age discrimination existed because RCW Ch. 49.60, Washington's Law Against Discrimination, applied only to firms employing eight or more persons. See RCW 49.60.040's employer definition. Because there existed no factual dispute that during the period of defendant's allegedly discriminatory practices he had never employed eight or more individuals, the trial court granted defendant's motion for summary judgment, dismissing plaintiffs' statutory age discrimination claims and their common law claims for wrongful discharge in violation of the public policy of the State of Washington. 2
We hold that a cause of action for age discrimination is implied under RCW 49.44.090. We reach the question of whether there exists a wrongful discharge tort based on Washington's public policy only in the context of plaintiff Bennett's retaliatory discharge claim. Further, because we hold that plaintiffs' causes of action are not limited by RCW 49.60.040's employer definition, we do not reach plaintiffs' claim that the statutory scheme treats employees of small firms in such a way as to offend the state constitution's privileges and immunities clause.
Preliminarily, defendant contends that plaintiffs did not properly preserve certain issues in their appeal. See RAP 2.5(a). These issues include plaintiff Bennett's claim of retaliatory discharge and plaintiffs' argument that RCW 49.44.090 and RCW Ch. 49.60 create separate and distinct causes of action.
A review of the record reveals that the first of these issues, plaintiff Bennett's retaliatory discharge, was in fact raised in plaintiffs' complaint and their memorandum in opposition to summary judgment. Clerk's Papers, at 3, 92. Plaintiffs may have framed their argument more clearly at this stage, but so long as they advanced the issue below, thus giving the trial court an opportunity to consider and rule on the relevant authority, the purpose of RAP 2.5(a) is served and the issue is properly before this court. East Gig Harbor Imp. Ass'n v. Pierce Cy., 106 Wash.2d 707, 709 n. 1 724 P.2d 1009 (1986) (citing Osborn v. Public Hosp. Dist. 1, 80 Wash.2d 201, 492 P.2d 1025 (1972)).
The other issue which defendant maintains was not raised below and therefore is not properly before this court is plaintiffs' argument that RCW 49.44.090 and RCW Ch. 49.60 create separate and distinct causes of action. The record does not reveal any specific request by plaintiffs that the trial court consider these statutes independently from one another. In fact, no mention of RCW 49.44.090 is found in plaintiffs' memorandum opposing summary judgment. However, a statute not addressed below but pertinent to the substantive issues which were raised below may be considered for the first time on appeal. State v. Fagalde, 85 Wash.2d 730, 732, 539 P.2d 86 (1975). Both RCW 49.44.090 and RCW Ch. 49.60 relate to discriminatory practices in employment. Therefore it is both appropriate and necessary for this court to consider these two obviously related statutes in determining whether plaintiffs' cause of action exists.
Moreover, we have recognized another exception to the general rule and have considered issues not raised below "when the question raised affects the right to maintain the action." Maynard Inv. Co. Inc. v. McCann, 77 Wash.2d 616, 621, 465 P.2d 657 (1970). New Meadows Holding Co. v. Washington Water Power Co., 102 Wash.2d 495, 498, 687 P.2d 212 (1984). The central issue of this case is plaintiffs' right to maintain their action. Under this exception consideration of RCW 49.44.090 is appropriate.
Finally, we note that the application of RAP 2.5(a) is ultimately a matter of the reviewing court's discretion. Obert v. Environmental Research & Dev. Corp., 112 Wash.2d 323, 333, 771 P.2d 340 (1989). Even if there was a question regarding the application of one of the above discussed exceptions, in this instance we would exercise our discretion and consider whether RCW 49.44.090 supplies a basis independent from RCW Ch. 49.60 for plaintiffs' cause of action because it is necessary to our rendering a proper decision. Falk v. Keene Corp., 113 Wash.2d 645, 659, 782 P.2d 974 (1989) ().
Defendant also claims that plaintiffs failed in their evidentiary burdens when opposing defendant's motion for summary judgment. However, the record demonstrates that the trial court did not reach any factual issues but instead based its ruling solely upon a determination that the law precluded plaintiffs' causes of action. Report of Proceedings, at 2, 7. Questions regarding the sufficiency of plaintiffs' evidence are for the trial court's future determination on remand. We emphasize that by recognizing a cause of action under which plaintiffs may advance their claims, we do not make any judgments regarding their ability to sustain their burdens of proving age discrimination as set forth in Grimwood v. University of Puget Sound, Inc., 110 Wash.2d 355, 363-64, 753 P.2d 517 (1988).
RCW 49.44.090 makes it an unfair employment practice
(1) For an employer ..., because an individual is between the ages of forty and seventy, to refuse to hire or employ or license or to bar or to terminate from employment such individual, or to discriminate against such individual in promotion, compensation or in terms, conditions or privileges of employment....
RCW Ch. 49.44 is silent regarding remedies against an employer engaged in this "unfair practice"; the chapter also does not define "employer."
"It has long been recognized that a legislative enactment may be the foundation of a right of action." McNeal v. Allen, 95 Wash.2d 265, 274, 621 P.2d 1285 (1980) (Brachtenbach, J., dissenting). Further,
we can assume that the legislature is aware of the doctrine of implied statutory causes of action and also assume that the legislature would not enact a remedial statute granting rights to an identifiable class without enabling members of that class to enforce those rights. Without an implicit creation of a remedy, the statute is meaningless.
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