Carle v. McChord Credit Union

• Decision Date: 15 April 1992
• Docket Number: No. 13386-5-II,13386-5-II
• Citation: 65 Wn.App. 93,827 P.2d 1070
• Court: Washington Court of Appeals
• Parties: , 66 Fair Empl.Prac.Cas. (BNA) 311 Barbara A. CARLE, Respondent, v. McCHORD CREDIT UNION, Appellant.

Page 93

65 Wn.App. 93

827 P.2d 1070, 66 Fair Empl.Prac.Cas. (BNA) 311

Barbara A. CARLE, Respondent, v. McCHORD CREDIT UNION, Appellant.

No. 13386-5-II.

Court of Appeals of Washington Division 2.

April 15, 1992.

Gilbert M. Stratton and Jacquelyn M. Aufderheide, Eisenhower Carlson Newlands Reha Henriot & Quinn; and Andrew R. Gala, Schwabe Williamson & Wyatt, Seattle, for appellant.

Patricia C. Fetterly, Davies Pearson, P.C., Tacoma, for respondent.

MORGAN, Acting Chief Judge.

McChord Credit Union discharged Barbara Carle from employment. She sued and obtained a jury verdict based on findings of age discrimination and negligent infliction of mental distress. McChord appeals; we affirm.

In 1981, McChord hired Carle to be the branch manager of its Lakewood office. She was hired as an at-will employee.

McChord had a written policy entitled, "Expectations for Employee Finances." Part of the policy stated:

A satisfactory consumer credit report must be maintained by all employees of the credit union. The credit union may periodically request written authorization to conduct a consumer credit report to verify an employee's financial status meets employment standards.

An unfavorable credit report may result in counseling to include transfer to another position, required consumer credit counseling, or further disciplinary action, which may include termination of employment.

Another part stated:

Employees of the credit union are expected to demonstrate the highest standards of financial responsibility and integrity in the management of their personal accounts at McChord Credit Union.

In late 1987, McChord reorganized and greatly expanded its Lakewood office. The new office was staffed by its president and five vice presidents. The reorganization resulted in the elimination of only one job, but it was Carle's branch manager position.

Notwithstanding the elimination of Carle's job, McChord's president assured her that she was doing high quality work and could remain with the credit union in another capacity. Thus, she commenced work as a new accounts supervisor on March 22, 1988. The salary range for branch manager had been $2240-$3360 per month; the salary range for new accounts supervisor was $1588-$2375 per month.

A month or so after Carle started work in the new job, McChord began to investigate her personal finances. In early June, it alleged that she was in violation of its financial policy for employees, and on June 10, 1988, it terminated her employment.

At the time of termination, Carle was 43 years old with 17 years experience in the financial industry. In addition to losing her job, she lost 30% of her pension account, which at that time contained $30,651.51. ¹ She was replaced by a person 31 years old with 5 years experience. Her salary as new accounts supervisor had been $2,352 per month; the new employee's salary was $1,650 per month.

Carle sued, alleging seven causes of action. Before trial, five were dismissed by an order granting partial summary judgment. The other two asserted age discrimination and negligent infliction of mental distress. At the conclusion of trial, the jury returned verdicts of $100,000 for age discrimination and $18,000 for negligent infliction of mental distress. The trial court later awarded Carle reasonable attorney's fees of $47,515 and costs of $6,749.29, but these amounts were only a portion of what she sought.

On appeal, McChord argues that there was insufficient evidence to support a finding of age discrimination; ² that the trial court incorrectly instructed the jury; that the trial court should not have allowed Carle to tardily challenge a juror for cause; and that the trial court should not have allowed Carle to call a certain expert witness in the rebuttal phase of her case. Carle cross appeals on the ground that the trial court improperly reduced her claim for attorney's fees and costs.

Age discrimination

When an employer discharges an employee between the age of forty and seventy years because of age, the employer engages in an unfair practice. RCW 49.60.180(2); RCW 49.44.090(1); RCW 49.60.205. Such a practice causes the employer to become liable for damages and reasonable attorney's fees. RCW 49.60.030(2). McChord says that Carle failed to produce evidence sufficient to show a violation of these statutes, and that the trial court erred by failing to grant a directed verdict at the close of all the evidence. ³

In every case, there is a burden of production and a burden of persuasion. In re Dependency of C.B., 61 Wash.App. 280, 282, 810P.2d 518 (1991); see Baldwin v. Sisters of Providence in Wash., Inc., 112 Wash.2d 127, 133-34, 769 P.2d 298 (1989); Grimwood v. University of Puget Sound, 110 Wash.2d 355, 362, 753 P.2d 517 (1988); E. Cleary, McCormick on Evidence, 946-52 (3d ed. 1984). The burden of production is applied by the judge, In re Dependency of C.B., 61 Wash.App. at 283, 810 P.2d 518, McCormick, at 952-56, who must take the evidence and the reasonable inferences therefrom in the light most favorable to the nonmoving party. Xieng v. Peoples Nat'l Bank, 63 Wash.App. 572, 581, 821 P.2d 520 (1991). The burden of persuasion is applied by the trier of fact. ⁴ In re Dependency of C.B., 61 Wash.App. at 282, 810 P.2d 518.

To question the sufficiency of evidence is to question whether the burden of production has been met. The burden of production is met when the plaintiff produces evidence sufficient to support a finding of each element of the cause of action. In re Dependency of C.B., 61 Wash.App. at 285-86, 810 P.2d 518. When it is met, it is said that the evidence is "sufficient" or "substantial." In re Dependency of C.B., 61 Wash.App. at 286, 810 P.2d 518.

Usually, the burden of production must be met by the plaintiff in his or her case in chief. However, when an employment discrimination case is patterned after McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668, (1973), ⁵ the burden of production is divided into three facets, two resting on plaintiff and one on defendant. This uncommon allocation of the burden recognizes that the employer is usually the one who knows why employment was terminated and "helps an alleged victim ofdiscrimination identify the reasons he must show did not in fact lead to his discharge or rejection...." Grimwood v. University of Puget Sound, 110 Wash.2d at 362, 753 P.2d 517, quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1014-15 (1st Cir.1979).

The first facet of the burden of production must be met by plaintiff in his or her case in chief. It requires that plaintiff produce evidence sufficient to support findings (1) that he or she was discharged from employment; (2) that at the time of discharge he or she was an employee between 40 and 70 years of age; (3) that at the time of discharge he or she was doing satisfactory work; and (4) that he or she was replaced by a younger person. Grimwood, 110 Wash.2d at 362, 753 P.2d 517; Brady v. Daily World, 105 Wash.2d 770, 776, 718 P.2d 785 (1986); Roberts v. ARCO, 88 Wash.2d 887, 568 P.2d 764 (1977). Because they are derived from McDonnell Douglas, these four elements will be referred to as the McDonnell Douglas elements.

The McDonnell Douglas elements depart from the usual rules on burden of production in that they require a response from the defendant before the plaintiff has made a case sufficient to go to the jury. Even though they have been referred to as plaintiff's "prima facie case," e.g., Grimwood, 110 Wash.2d at 362, 753 P.2d 517, Stork, 54 Wash.App. at 278, 774 P.2d 22 they do not make a case sufficient for submission to the jury. See Grimwood v. University of Puget Sound, supra; Jones v. Kitsap Cy. Sanitary Landfill, Inc., 60 Wash.App. 369, 371, 803 P.2d 841 (1991). Rather, they only create a rebuttable presumption of discrimination sufficient to require that the defendant come forward with evidence of a legitimate, nondiscriminatory reason for the discharge. ⁶ As the United States Supreme Court ⁷ has said The phrase "prima facie case" may denote not only the establishment of a legally mandatory, rebuttable presumption, but also may be used by courts to describe the plaintiff's burden of producing enough evidence to permit the trier of fact to infer the fact at issue. McDonnell Douglas should have made it apparent that in the Title VII context we use "prima facie case" in the former sense. ⁸

Texas Dept. of Comm'ty Affairs v. Burdine, 450 U.S. 248, 254 n. 7, 101 S.Ct. 1089, 1094 n. 7, 67 L.Ed.2d 207, 216 n. 7, (1981) (citations omitted).

The second facet of the burden of production provides the defendant with the opportunity to rebut the presumption raised by the McDonnell Douglas elements. It requires that defendant in its case in chief produce or adopt ⁹ evidence sufficient to support a finding that plaintiff was discharged for a nondiscriminatory reason. Texas Dept. of Comm'ty Affairs v. Burdine, 450 U.S. at 255, 101 S.Ct. at 1094-95, 67 L.Ed.2d at 216. If defendant fails to do that, the record will show (1) the four McDonnell Douglas elements and (2) defendant's failure to advance a legitimate reason for its action after being afforded an opportunity to do so. On such a record, there is no genuine issue of fact, Texas Dept. of Comm'ty Affairs v. Burdine, 450 U.S. at 254, 101 S.Ct. at 1094, 67 L.Ed.2d at 216, and plaintiff will be entitled to an order establishing liability as a matter of law. Grimwood, 110 Wash.2d at 363, 753 P.2d 517 (quoting Loeb v. Textron, Inc., 600 F.2d at 1014-15), 364, 753 P.2d 517; Burdine, 450 U.S. at 254, 101 S.Ct. at 1094, 67 L.Ed.2d at 216; Lewis v. Doll, 53 Wash.App. 203, 211-212, 765 P.2d 1341, review denied, 112 Wash.2d 1027 (1989). However, if defendant produces or adopts evidence of a legitimate, nondiscriminatory reason, the presumption raised by the McDonnell Douglas elements is rebutted, Burdine, 450 U.S. at 255, 101 S.Ct. at 1094-95, 67 L.Ed.2d at 216, and plaintiff "must then have an...