Chen v. State

• Decision Date: 18 April 1997
• Docket Number: No. 18808-2-II,18808-2-II
• Citation: 86 Wn.App. 183,937 P.2d 612
• Court: Washington Court of Appeals
• Parties: Hsi H. CHEN, M.D., Appellant, v. The STATE of Washington, the Washington Department of Social and Health Services, and Western State Hospital, agencies of the State of Washington, Respondents.

Page 183

86 Wn.App. 183

937 P.2d 612

Hsi H. CHEN, M.D., Appellant, v. The STATE of Washington, the Washington Department of Social and Health Services, and Western State Hospital agencies of the State of Washington, Respondents.

No. 18808-2-II.

Court of Appeals of Washington,

Division 2.

April 18, 1997.

Publication Ordered May 16, 1997.

Reconsideration Denied May 20, 1997.

Ross Edwin Taylor, Tacoma, for Appellant.

Lisa Leann Sutton, Assistant Attorney General, Tort Claims Div., Olympia, for Respondents.

ARMSTRONG, Judge.

Western State Hospital dismissed Dr. Hsi Chen after a six-month probationary period, citing poor performance. Chen sued, alleging (1) fraud based on his reliance on the State's representations about the probationary employment period, and (2) discrimination. The trial court granted summary judgment for the State, and Chen appeals. Because the State did not misrepresent the conditions of probation, and because Chen failed to produce evidence that the State's reason for dismissing him was false or a mere pretext, we affirm.

FACTS

Hsi Chen was born in Taiwan in 1925 and received his medical degree there in 1948. He became board certified in psychiatry in the United States in November 1989. The following spring, Chen applied for a psychiatrist position at Western State Hospital. Because he then lived in Florida, Chen was concerned about the six-month probationary period and asked how difficult the probationary period was and how many psychiatrists had failed. Dr. Hamilton, the Director of Professional Services, responded that the probationary period was not difficult and that only one psychiatrist in the past 10 years had failed the probationary period. Hamilton explained that the psychiatrist had committed gross misconduct.

Chen started at Western State in July 1990, serving as a team leader in a very difficult ward. The treatment team consisted of Chen, a psychologist, a social worker, and the nursing staff. Chen's duties included supervising treatment and directing the psychiatric program.

Dr. Dennis, Chen's supervisor, evaluated Chen's performance after four months and solicited comments from staff and team members. Dennis found that Chen had met the minimum requirements in three evaluation areas, and failed to meet minimum requirements in two areas. Among the various comments, Dennis noted, for example, that some staff had requested transfers.

Chen meanwhile evaluated his own performance, concluding that he had exceeded the normal requirements in four areas, and met the normal requirements in the fifth area. Chen also explained specific criticisms, for example, noting that one staff member who had requested a transfer "has a reputation of being very difficult to deal with."

Dr. Dennis evaluated Chen's performance again after six months, soliciting further comments from the team members. They expressed concerns that Chen was rigid and inflexible in his treatment style, disregarded their input, and had problems communicating in spoken English. Dennis found that Chen had met the normal requirements in three evaluation areas, met the minimum requirement in one area, and failed to meet minimum requirements in one area. Dennis did not recommend Chen for permanent employment. Western State then notified Chen that his probationary period would terminate the following day, after six months' service.

Chen sued the State, DSHS, and Western State, alleging discrimination based on age, race, and national origin under RCW 49.60 and 49.44.090. He also alleged fraud because of Hamilton's representations about the standard to be met during probation. Finding that Chen had not established that the State's reason for terminating him was a pretext or unworthy of belief, the trial court granted summary judgment to the State.

Chen then moved for reconsideration, submitting an affidavit and a declaration signed by several former colleagues at Western State. The trial court granted the State's motion to strike the affidavit and the declaration and denied Chen's motion for reconsideration. Chen appeals.

ANALYSIS

In reviewing a summary judgment, we engage in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982). Summary judgment may be granted if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Weyerhaeuser Co. v. Aetna Cas. & Sur. Co., 123 Wash.2d 891, 897, 874 P.2d 142 (1994). A "material fact" is one upon which the outcome of the litigation depends. Clements v. Travelers Indem. Co., 121 Wash.2d 243, 249, 850 P.2d 1298 (1993). In ruling on the motion, we consider the facts in the light most favorable to the nonmoving party. Clements, 121 Wash.2d at 249, 850 P.2d 1298.

A. Fraud--Representations by the State Regarding the Probationary Employment Period

Chen first argues that the State is estopped from denying him permanent employment because it interpreted "satisfactory performance" in the probationary period to mean an absence of gross misconduct. Chen claims that he had a right to rely on this interpretation. To establish fraud, the plaintiff must demonstrate: (1) representation of an existing fact; (2) materiality; (3) falsity; (4) speaker's knowledge of its falsity; (5) speaker's intention that it shall be acted upon by the plaintiff; (6) plaintiff's ignorance of falsity; (7) reliance; (8) right to rely; and (9) damages. Hoffer v. State, 110 Wash.2d 415, 425, 755 P.2d 781 (1988), aff'd. on rehearing, 113 Wash.2d 148, 776 P.2d 963 (1989). Each element of fraud must be proven by clear, cogent, and convincing evidence. Douglas Northwest, Inc. v. Bill O'Brien & Sons Constr., Inc., 64 Wash.App. 661, 678, 828 P.2d 565 (1992).

Chen's argument, that Hamilton represented that gross misconduct was the only grounds for failing probation, is not correct. When asked by Chen about the probationary period, Hamilton responded that the probationary period was not difficult, and that only one psychiatrist in the past 10 years had failed the probationary period. That psychiatrist, according to Hamilton, had committed gross misconduct.

Hamilton did not make a false statement. The statement was simply an explanation of the reason one psychiatrist had failed to pass probation. It was not a representation that one can fail probation only by committing gross misconduct. Accordingly, the trial court properly dismissed the fraud claim. ¹

B. Age, Race, and National Origin Discrimination

Chen next argues that the trial court erred in dismissing his discrimination claims. RCW Chapter 49 prohibits employers from discriminating against persons based on age, race, creed, color, or national origin. See RCW 49.44.090; 49.60.180. To establish a prima facie case of termination for age, race, or national origin discrimination, an employee must demonstrate that he or she (1) belongs in a protected class; (2) was discharged; (3) was doing satisfactory work; and (4) was replaced by someone not in the protected class. Grimwood v. University of Puget Sound, Inc., 110 Wash.2d 355, 362-64, 753 P.2d 517 (1988); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973). Establishing these elements prevent dismissal at the end of the plaintiff's case, notwithstanding that the evidence does not yet show why the discharge occurred. Carle v. McChord Credit Union, 65 Wash.App. 93, 99 n. 6, 827 P.2d 1070 (1992).

Once a plaintiff has established this prima facie case the employer must articulate a legitimate, nondiscriminatory reason for the termination. Grimwood, 110 Wash.2d at 363-64, 753 P.2d 517. The employer's burden is not one of persuasion, but rather one of production. Grimwood, 110 Wash.2d at 364, 753 P.2d 517. If the employer fails to advance a legitimate reason for its action, there is no genuine issue of material fact. Carle, 65 Wash.App. at 100, 827 P.2d 1070. If an employer meets this burden, the plaintiff must then show that the employer's articulated reasons are unworthy of belief or are a mere pretext for what is, in fact, a discriminatory purpose. Grimwood, 110 Wash.2d at 364, 753 P.2d 517.

An employee can demonstrate that the employer's proffered reasons are unworthy of belief with evidence that: (1) the employer's reasons have no basis in fact; or (2) even if the reasons are based on fact, the employer was not motivated by the reasons; or (3) the reasons are insufficient to motivate the adverse employment decision. Kuyper v. State, 79 Wash.App. 732, 738-39, 904 P.2d 793 (1995), review denied, 129 Wash.2d 1011, 917 P.2d 130 (1996). To meet this burden, an employee is not required to produce direct or "smoking gun" evidence. Sellsted v. Washington Mut. Sav. Bank, 69 Wash.App. 852, 860, 851 P.2d 716 (1993). Circumstantial, indirect, and inferential evidence is sufficient to discharge the plaintiff's burden. Sellsted, 69 Wash.App. at 860, 851 P.2d 716. If a plaintiff produces evidence at this third stage to counter the employer's reasons, the case must be submitted to the jury; if not, the employer is entitled to a dismissal. Carle, 65 Wash.App. at 102, 827 P.2d 1070.

But to overcome an employer's summary judgment motion, the employee must do more than express an opinion or make conclusory statements. Hiatt v. Walker Chevrolet Co., 120 Wash.2d 57, 66, 837 P.2d 618 (1992). The employee has the burden of establishing specific and material facts to support each element of his or her prima facie case. Hiatt, 120 Wash.2d at 66, 837 P.2d 618 (emphasis present). Subjective judgments by employers are not per se illegal, nor do they always lack legitimacy. MACK A. PLAYER, EMPLOYMENT DISCRIMINATION LAW 336 (1988). Subjective evaluations of performance are legitimate when the job requires the employee to exercise professional judgment. PLAYER, supra, at 336. An employee's assertion of good performance to contradict the employer's assertion of poor performance does not give...