Certification from the U.S. Dist. Court for the W. Dist. of Wash. in Larry C. Ockletree v. Franciscan Health Sys., Corp.

Decision Date06 February 2014
Docket NumberNo. 88218–5.,88218–5.
Citation179 Wash.2d 769,317 P.3d 1009
CourtWashington Supreme Court
PartiesCertification from the United States District Court for the Western District of Washington in Larry C. OCKLETREE, individually, Plaintiff, v. FRANCISCAN HEALTH SYSTEM, a Washington Corporation, d/b/a St. Joseph Hospital, and John and Jane Doe(s) 1–10, Defendants.

OPINION TEXT STARTS HERE

Validity Called into Doubt

West's RCWA 49.60.040(11)Dwayne L. Christopher, Dwayne L. Christopher, PLLC, James Walter Beck, Stephanie Bloomfield, Gordon Thomas Honeywell, Tacoma, WA, for Plaintiff.

Christopher L. Johnson, Karen R. Glickstein, Polsinelli PC, Kansas City, MO, Sheryl D.J. Willert, Mary H. Spillane, Williams Kastner & Gibbs, Seattle, WA, for Defendants.

Steven T. O'Ban, Kristen Kellie Waggoner, Geoffrey Alan Enns, Ellis Li & McKinstry PLLC, Seattle, WA, amicus counsel for Religious Organizations.

Sarah A. Dunne, ACLU of Washington Foundation, Seattle, WA, Jennifer Lee, ACLU Foundation, New York, NY, Daniel Mach, ACLU Foundation, Washington, DC, amicus counsel for Aclu.

George M. Ahrend, Ahrend Albrecht PLLC, Ephrata, WA, Bryan Patrick Harnetiaux, Attorney at Law, Spokane, WA, amicus counsel for Washington State Association for Justice Foundation.

Karen Adell Kalzer, Helsell Fetterman, Seattle, WA, amicus counsel for Pacific Northwest Conference of the United Methodist Church.

Karen Adell Kalzer, Helsell Fetterman, Seattle, WA, amicus counsel for Olympia Diocese of the Episcopal Church.

Karen Adell Kalzer, Helsell Fetterman, Seattle, WA, amicus counsel for Presbytery of Seattle of the Presbyterian Church Usa.

Jeffrey Lowell Needle, Maynard Building, Jesse Andrew Wing, MacDonald Hoague & Bayless, Seattle, WA, amicus counsel for Washington Employment Lawyers Association.

Janet S. Chung, Legal Voice, Seattle, WA, amicus counsel for Legal Voice.

C. JOHNSON, J.

¶ 1 The certified questions in this case ask us to decide whether, the exemption of nonprofit religious organizations from the definition of “employer” under Washington's Law Against Discrimination (WLAD), chapter 49.60 RCW, violates article I, section 11 or article I, section 12 of the Washington Constitution. Larry Ockietree brought suit in state court against Franciscan Health System (FHS), challenging the termination of his employment following a stroke. Ockletree, who is African–American, claimed that his termination was the result of illegal discrimination on the basis of race and disability. FHS removed the suit to federal court and moved to dismiss Ockletree's claims. FHS argued that it was exempt from WLAD as a nonprofit religious organization. Ockletree challenged the validity of the religious employer exemption under the state and federal constitutions. The district court certified questions to this court asking whether the religious employer exemption violates Washington's article I, section 11 establishmentclause or its article I, section 12 privileges and immunities clause. We answer both questions in the negative.

Certified Questions
¶ 2

1. The Washington Law Against Discrimination excludes religious non-profit organizations from its definition of “employer” (Wash. Rev.Code § 49.60.040(11)). Such entities are therefore facially exempt from WLAD's prohibition of discrimination in the workplace. Does this exemption violate Wash. Const. Article I, § 11 or § 12?

2. If not, is Wash. Rev.Code § 49.60.040(11)'s exemption unconstitutional as applied to an employee claiming that the religious non-profit organization discriminated against him for reasons wholly unrelated to any religious purpose, practice, or activity?

Order Certifying Question to the Wash. Supreme Ct. (Certification) at 4.

Facts

¶ 3 Plaintiff Larry C. Ockletree was employed as a security guard by FHS in 2010. He staffed a desk in the emergency department at St. Joseph Hospital, where he checked visitors' identification and issued name tags. While employed by FHS, Ockletree suffered a stroke that impaired his nondominant arm. FHS determined he could not perform the essential functions of his job with or without accommodation, refused his requested accommodation, and terminated his employment.

¶ 4 Ockletree brought multiple causes of action in state court, including employment discrimination on the basis of race and disability in violation of federal law and WLAD. FHS removed the case to federal court and moved to dismiss four of Ockletree's claims, including his WLAD claim. Jurisdiction for Ockletree's federal employment discrimination claim under the Civil Rights Act of 1964, 42 U.S.C. § 2000e–5, depends upon whether he timely exhausted administrative remedies. The filing period in question depends upon whether he has a valid state law discrimination claim. If Ockletree's WLAD claim fails, his federal claim is time barred.

¶ 5 FHS asserts that as a nonprofit religious organization, it is exempt from WLAD's definition of “employer” and therefore exempt from WLAD's private cause of action. RCW 49.60.040(11); Certification at 2–3. Ockletree challenges the exemption's validity under the state and federal constitutions. The United States District Court certified questions to this court asking whether the religious employer exemption violates article I, section 11 or article I, section 12 of the Washington Constitution.1

Analysis

¶ 6 The certified questions ask us to determine the constitutionality of the exemption of religious nonprofit organizations from WLAD.2 WLAD was enacted in 1949 with the purpose of ending discrimination by employers “on the basis of race, creed, color, or national origin.” Griffin v. Eller, 130 Wash.2d 58, 63, 922 P.2d 788 (1996). WLAD has expanded over the years to bar discrimination on the basis of age, sex, sexual orientation, and disability, and to incorporate a private right of action for employees and persons who use public accommodations. SeeRCW 49.60.040.

¶ 7 As enacted, the law exempted from the definition of “employer” “any religious, charitable, educational, social or fraternal association or corporation, not organized for private profit.” Laws of 1949, ch. 183, § 3(b). In 1957, the legislature rewrote the definition of “employer” to its present form, bringing secular nonprofit organizations within the statute's ambit and exempting only small employers and religious nonprofits. SeeLaws of 1957, ch. 37. The definition of “employer” for purposes of WLAD is currently found in RCW 49.60.040(11), which provides, ‘Employer’ includes any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons, and does not include any religious or sectarian organization not organized for private profit.”

¶ 8 The WLAD religious employer exemption has been examined in two earlier cases raising arguments under the state constitution, but in neither case did we expressly reach the state constitutional issue. The first came in 1991, when Nancy Farnam, an employee of a religious nursing home, challenged her dismissal for reporting the removal of a patient's gastric tube. Farnam v. CRISTA Ministries, 116 Wash.2d 659, 662–66, 807 P.2d 830 (1991). Farnam argued that the WLAD exemption was invalid under article I, section 11 and article I, section 12 of the Washington Constitution. We noted that the arguments were presented to us without sufficient briefing analyzing the state constitutional claims, and we declined to address their merits. However, we noted that we rejected a similar challenge to the federal exemption under the equal protection clause, in American Network, Inc. v. Utilities & Transportation Commission, 113 Wash.2d 59, 77, 776 P.2d 950 (1989). Farnam, 116 Wash.2d at 681, 807 P.2d 830.

¶ 9 A second state constitutional challenge to the religious employer exemption came in 2010, when Angela Erdman, a church elder employed in a secular position, was dismissed on the recommendation of the church tribunal. Erdman v. Chapel Hill Presbyterian Church, 156 Wash.App. 827, 234 P.3d 299 (2010)( Erdman I),rev'd on other grounds by Erdman, 175 Wash.2d 659, 286 P.3d 357 (2012)( Erdman II). Erdman challenged the dismissal, asserting several causes of action, including a violation of WLAD. Moving for summary judgment dismissal of Erdman's WLAD claim, the church asserted the religious employer exemption. Erdman countered that the exemption was an unconstitutional privilege or immunity under article I, section 12 because it interfered with her fundamental right to pursue an occupation. Just as in Farnam, the Court of Appeals found that Erdman had cited “no relevant authority” to support her state constitutional claim and declined to examine the merits. Erdman I, 156 Wash.App. at 849, 234 P.3d 299. We did not take review of Erdman's article I, section 12 claim and resolved the case on other grounds. See Erdman II, 175 Wash.2d at 683, 286 P.3d 357.

¶ 10 Here, we are asked to confront the question of whether the religious employer exemption violates article I, section 11 or article I, section 12 of the Washington Constitution.

a. Article I, section 12

¶ 11 Article I, section 12 provides, “No law shall be passed granting to any citizen, class of citizens, or corporation other than municipal, privileges or immunities which upon the same terms shall not equally belong to all citizens, or corporations.” Passed during a period of distrust toward laws that served special interests, the purpose of article I, section 12 is to limit the sort of favoritism that ran rampant during the territorial period. Robert F. Utter & Hugh D. Spitzer, The Washington State Constitution: A Reference Guide 26–27 (G. Alan Tarr ed., 2002). Although the text of clause was modeled after a similar provision in Oregon's 1859 Constitution, Washington's framers explicitly broadened the reach of the clause by including “corporations” in the language of article I, section 12. See State v. Smith, 117 Wash.2d 263, 285, 814 P.2d 652 (1991) (Utter, J., concurring). Our cases have...

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