Davis v. Department of Labor and Industries

• Decision Date: 07 August 1980
• Docket Number: No. 46256,46256
• Citation: 94 Wn.2d 119,615 P.2d 1279
• Parties: , 51 Fair Empl.Prac.Cas. (BNA) 924, 24 Empl. Prac. Dec. P 31,207 Susan S. DAVIS, Respondent, v. The DEPARTMENT OF LABOR AND INDUSTRIES, and Max M. Whittlesey, Petitioners.
• Court: Washington Supreme Court

Page 119

94 Wn.2d 119

615 P.2d 1279, 51 Fair Empl.Prac.Cas. (BNA) 924,

24 Empl. Prac. Dec. P 31,207

Susan S. DAVIS, Respondent, v. The DEPARTMENT OF LABOR AND INDUSTRIES, and Max M.

Whittlesey, Petitioners.

No. 46256.

Supreme Court of Washington, En Banc.

Aug. 7, 1980.

Slade Gorton, Atty. Gen., Richard L. Kirkby, Asst. Atty. Gen., Thornton A. Wilson, Olympia, for petitioners.

Lundin, Haley & Hansen, Donald D. Haley, Seattle, for respondent.

HICKS, Justice.

Susan S. Davis brought this action against the Department of Labor & Industries (Department) under RCW 49.60.030, which prohibits discrimination on the basis of sex. The trial court found discrimination against Davis, but denied her backpay on the ground that even absent the discrimination she would not have been promoted. The Court of Appeals reversed on the issue of backpay and required reassessment of the fee awarded her attorney. We granted discretionary review and we reverse the Court of Appeals.

Department employed Susan Davis in July 1972, as a Clerk-Typist II in the industrial insurance division. She sought promotion within the Department to Revenue Compliance Officer II in March 1973. Because of a "mix up", her application was not received in time for her to take the required civil service examination in order to qualify for the appointment list. That position was filled by a 24-year-old male with a 2-year law enforcement background.

In finding of fact No. 19, the trial court delineated the typical work of a Revenue Compliance Officer as:

(I)ssues emergency warrants and searches property of delinquent taxpayers for distraint proceedings, assist(s) in cases of seizure and sale; notes irregularities peculiar to departmental directories and reports same for subsequent investigation; locates delinquent taxpayers and attempts to collect revenue by correspondent, telephone, personal contact;

Serve tax warrants, negotiates deferred or partial payment agreements;

Receives and receipts tax monies in Field Office; assists taxpayer in filling out forms; calculates gross business and other tax due; write tax waivers; arranges for registration of new business;

Corresponds with taxpayers, explaining amounts due and department revenue procedures;

The minimum stated qualifications are two years experience in credit investigation, collection or closely allied field.

Training from an accredited college in business administration, accounting or closely allied field may be substituted, year for year, for experience.

Davis met the minimum qualifications, and she took the civil service examination for such a position on May 2, 1973, receiving a grade of 87.6. This qualified her to be placed on the selection list of three for an upcoming vacancy.

In July 1973, the names of Davis and two other females, Mary Foley, and Theodora Kendall, were certified to Department as qualified for the position of Revenue Compliance Officer II. Previous to this time, no woman had been employed as such an officer. Subsequently, Kendall withdrew her name from consideration and a male, Wayne Palmer, was certified in her place. He had a score of 83.4 on the examination, ranking him behind Davis.

July 2, 1973, Davis was interviewed by two Department supervisory personnel. During the interview she was questioned regarding her marital status, her family plans, and her age all improper areas of interrogation. Some concern was expressed to her about the rough type of places one occasionally had to enter in the performance of the job.

July 10, 1973, Davis was informed that Palmer had been selected for the position, allegedly because she was too young. July 12, she swore out a complaint with the Washington State Human Rights Commission (WSHRC). After an investigation, WSHRC concluded that there was probable cause to believe Davis was discriminated against because of sex. Davis also swore out a complaint with the Equal Employment Opportunity Commission and on September 6, 1974, its director concluded there was reasonable cause to believe she was discriminated against because of sex.

Under RCW 49.60.030, Davis filed the instant suit in King County Superior Court alleging sex discrimination and seeking injunctive relief, backpay, and costs including a reasonable attorney's fee. The trial court determined that the Department had "sexually discriminated against (Davis), within the meaning of the Washington State Law Against Discrimination, by its failure to fairly consider her application for promotion to the position of Revenue Compliance Officer II." It concluded, however, that she was not entitled to damages for the reason that she would not have been selected over the other two qualified persons. Costs were allowed in the amount of $365.52 and her attorney was awarded a fee of $6,000.

Davis appealed. Department did not contest the finding that it had failed to fairly consider her application for promotion. Thus, discrimination becomes an established fact. The sole question to be decided on appeal is whether Davis was entitled to damages. ¹

The Court of Appeals held that the record and the other findings do not support the trial court's finding of fact No. 26 that Department proved by clear, cogent and convincing evidence that Davis would not have been promoted absent discrimination. The appellate court affirmed the finding of discrimination, but remanded the case for entry of judgment in favor of Davis for damages in the amount of $18,498.19 ² and for reassessment of the fee awarded her attorney. Department petitioned for discretionary review, which we granted.

Initially, Department contends that the Court of Appeals erred in failing to apply the substantial evidence test to the trial court's findings of fact. See Holland v. Boeing Co., 90 Wash.2d 384, 390, 583 P.2d 621 (1978) (substantial evidence test applies to findings under RCW 49.60). The trial court found "clear and convincing evidence" that even absent sex discrimination, Davis would not have been promoted over the other two persons on the list.

On appellate review, this court is firmly committed to the rule that a trial court's findings of fact will not be disturbed if they are supported by "substantial evidence." See, e. g., Sylvester v. Imhoff, 81 Wash.2d 637, 503 P.2d 734 (1972). As a corollary to this rule, we note that unchallenged findings of fact become verities on appeal. As such, it is unnecessary for us to search the record to determine whether there is substantial evidence to support them. They are the facts of the case. Goodman v. Bethel School Dist. 403, 84 Wash.2d 120, 124, 524 P.2d 918 (1974). Here Davis has assigned no error to any finding of fact except No. 26. Thus, we have no concern with the remaining 26 findings of fact, other than to ascertain that they support the conclusions of law and the judgment.

In this case, much of the Court of Appeals' opinion is concerned with the weight to be accorded the qualifications of the respective applicants:

On balance, the findings are that Davis is more qualified for promotion than Palmer. Possibly Palmer has an edge in accounting, but the evidence is not clear on that.

Davis v. Department of Labor & Indus., 22 Wash.App. 487, 493, 589 P.2d 831 (1979).

Davis apparently does not dispute that the Court of Appeals reevaluated the evidence. She contends, however, that this is permissible under an exception to the substantial evidence rule invoked when the trial court's findings are based on written, graphic material and not oral testimony. See, e. g., Carlson v. Bellevue, 73 Wash.2d 41, 435 P.2d 957 (1968); Smith v. Skagit County, 75 Wash.2d 715, 453 P.2d 832 (1969). The exception to the general rule that it is the sole province of the trial court to resolve factual conflicts, however, is applicable only when no witnesses testify at trial. Here, four witnesses testified. Testimony of one, the personnel analyst, could well have provided the basis for the trial court's finding that Davis would not have been selected even absent discrimination.

As to the findings of fact, it is not the function of an appellate court to substitute its judgment for that of the trial court or to weigh the evidence or the credibility of witnesses. Beeson v. Atlantic-Richfield Co., 88 Wash.2d 499, 563 P.2d 822 (1977). In this case, we hold that the trial court's unchallenged findings of fact may not be reweighed on appeal. Rather, as amplified by the court's memorandum opinion, when appropriate, they may be challenged only as not supporting the conclusions of law made by the court.

Under the Washington law against discrimination, broad remedial authority is set forth in RCW 49.60.030(2):

Any person deeming himself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, to recover the actual damages sustained by him, or both, together with the cost of suit including a reasonable attorney's fees or any other remedy authorized by this chapter or the United States Civil Rights Act of 1964; . . .

RCW 49.60.250 delineates the remedies available to the WSHRC upon finding an unfair practice as: "affirmative action, including, (but not limited to) hiring, reinstatement or upgrading of employees, with or without back pay, . . ."

In construing RCW 49.60, we have looked to interpretations under § 2000e-2 of the Civil Rights Act of 1964, tit. VII, § 703 (as amended), 86 Stat. 103 (codified in scattered sections of 2000, 42 U.S.C. (1976)), for assistance. Stieler v. Spokane School Dist. 81, 88 Wash.2d 68, 558 P.2d 198 (1977). In Albemarle Paper Co. v. Moody, 422 U.S. 405, 421, 95 S.Ct. 2362, 2373, 45 L.Ed.2d 280 (1975), the United States Supreme Court addressed the issue of backpay in a title VII action:

It follows that, given a finding of unlawful discrimination, backpay should be denied only for reasons which, if applied generally, would not frustrate the central statutory purposes of eradicating...