Davis v. Department of Labor and Industries

• Decision Date: 22 January 1979
• Docket Number: No. 5886-I,5886-I
• Citation: 22 Wn.App. 487,589 P.2d 831
• Parties: , 39 Fair Empl.Prac.Cas. (BNA) 475, 19 Empl. Prac. Dec. P 9148 Susan S. DAVIS, Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES and Max M. Whittlesey, Respondents.
• Court: Washington Court of Appeals

Page 487

22 Wn.App. 487

589 P.2d 831, 39 Fair Empl.Prac.Cas. (BNA) 475,

19 Empl. Prac. Dec. P 9148

Susan S. DAVIS, Appellant, v. DEPARTMENT OF LABOR AND INDUSTRIES and Max M. Whittlesey, Respondents.

No. 5886-I.

Court of Appeals of Washington, Division 1.

Jan. 22, 1979.

Reconsideration Denied March 22, 1979.

Lundin, Estep, Sindell & Haley, Donald D. Haley, Seattle, for appellant.

Slade Gorton, Atty. Gen., Richard L. Kirkby, Asst. Atty. Gen., Olympia, for respondents.

WILLIAMS, Judge.

Following complaint to the Washington State Human Rights Commission and the Equal Opportunity Employment Commission, this action was brought by Susan S. Davis, pursuant to the state Law Against Discrimination, RCW 49.60, to recover damages from the State of Washington for discrimination against her in a promotion which arose in the Department of Labor and Industries. The trial court found that there was sex discrimination but refused to allow damages. Davis appeals, contending that she is entitled to back pay and a larger award by way of attorney's fees. We agree and reverse.

The facts are these: Davis, a Clerk-Typist II in the Department of Labor and Industries, applied for promotion to the position of Revenue Compliance Officer II. She was qualified for the position. Her civil service examination score of 87.6 placed her first for consideration in the Department and second in all state departments in the Seattle-Everett area.

In July, 1973, an opening for a Revenue Compliance Officer II occurred and Davis, together with Theodora Kendall and Mary E. Foley, was certified as qualifying for the position. The appointing authority, Max M. Whittlesey, expressing concern that all three were women, felt that the position was more suitable for a man, because a Revenue Compliance Officer was required to go into rough places such as woods and taverns and would hear rough language. Wayne E. Palmer replaced Theodora Kendall on the list when she withdrew, and Whittlesey then promoted Palmer to the position, telling Davis that she was not chosen because she was too young.

Davis's compliant was first heard by the Washington State Human Rights Commission and the Equal Opportunity Employment Commission, both of which concluded that there was discrimination. When the question was presented to the trial court, the same determination was made, but the trial court did not award damages, finding that regardless of the discrimination, the Department would not have hired Davis.

On appeal, the Department does not contest the trial court's finding of discrimination. The primary issue, then, is whether Davis should have been awarded actual damages as authorized by RCW 49.60.030(2). More specifically, Davis seeks the difference in pay which she would have received had she been promoted and an increase in attorney's fees.

An award of damages based upon back pay necessarily depends upon a finding that but for the discrimination Davis would have been promoted. Because proof of such a fact is difficult, a rule has evolved in federal courts requiring that an employer who has discriminated carries the burden of proving by clear, cogent and convincing evidence that in spite of the discrimination, the person would not have been promoted. As was said in Day v. Mathews, 174 U.S.App.D.C. 231, 233, 530 F.2d 1083, 1085-86, (1976):

And those courts which have given the most careful consideration to the burden of proof question have held that the employee must prevail unless the employer proves its case by "clear and convincing evidence."

The reason for this is straightforward. "Unquestionably, it is now impossible for an individual discriminatee to recreate the past with exactitude." Johnson v. Goodyear Tire & Rubber Co., supra, 491 F.2d (1364) at 1379. Such a showing is impossible precisely because of the employer's unlawful action; it is only equitable that any resulting uncertainty be resolved against the party whose action gave rise to the problem. Thus, once discrimination is shown, relief should not be narrowly denied.

(Footnotes and citations omitted.) Accord Baxter v. Savannah Sugar Refining Corp., 495 F.2d 437 (5th Cir. 1974), Cert. denied, 419 U.S. 1033, 95 S.Ct. 515, 42 L.Ed.2d 308 (1974); Peele v. Califano, 447 F.Supp. 160 (D.D.C.1978); Braswell v. Kobelinski, 428 F.Supp. 324 (D.D.C.1976). But see Richerson v. Jones, 551 F.2d 918 (3d Cir. 1977).

The rule should be applied to this case, not only because it is reasonable, See Albertson's v. Human Rights Commission, 14 Wash.App. 697, 544 P.2d 98 (1976), but because the statute, RCW 49.60.030(2), includes the remedies authorized in the United States Civil Rights Act of 1964, which permits back pay. 42 U.S.C. § 2000e-5(g) (1974). The trial judge applied this rule, but found that the Department had proved by clear, cogent and convincing evidence that Davis would not have been promoted. Critical findings of the court on this point are:

Mr. Whittlesey's cultural background was such that he felt that the position of Revenue Compliance Officer II was more suitable for a man than it was suitable for a woman because it required going into rough places such as the woods, or going into taverns, going out and listening to rough language.

Finding of fact No. 8.

When one of the females waived her right to be considered for promotion, 30 year old Wayne E. Palmer was placed on the list. His grade of 83.4 ranked him third behind plaintiff and Mary E. Foley. Mr. Whittlesey then selected Wayne E. Palmer to the position.

Finding of fact No. 9.

The education background of Wayne E. Palmer consisted of 61 quarter hours of general education at Western Washington State College, 73 quarter hours of business courses at Everett Jr. College, and 65 quarter hours in accounting at Renton College.

Finding of fact No. 10. The employment background of Wayne E. Palmer consisted of U. S. Naval duties October 1968 to May 1970, working as an accountant with the Department of Social and Health Services from September 1970 to March 1972, working as an accountant with the Department of Employment Security from April 1972 to July 1973.

Finding of fact No. 11.

The educational background of Mary...