Domingo v. BOEING EMPLOYEES'CREDIT UNION

• Decision Date: 07 September 2004
• Docket Number: No. 52982-0-I.,52982-0-I.
• Citation: 124 Wash. App. 71,98 P.3d 1222,124 Wn. App. 71
• Parties: Leticia DOMINGO, a single woman, Appellant, v. BOEING EMPLOYEES' CREDIT UNION, a Washington corporation, Respondent.
• Court: Washington Court of Appeals

98 P.3d 1222

124 Wn. App. 71

124 Wash. App. 71

Leticia DOMINGO, a single woman, Appellant, v. BOEING EMPLOYEES' CREDIT UNION, a Washington corporation, Respondent.

No. 52982-0-I.

Court of Appeals of Washington, Division 1.

September 7, 2004.

Publication Ordered October 7, 2004.

John R. Dudley, Attorney at Law, Redmond, WA, for Appellant.

Steven R. Peltin, Preston, Gates & Ellis, LLP, Seattle, WA, for Respondent.

AGID, J.

Leticia Domingo appeals a trial court's decision granting summary judgment in favor of Boeing Employees' Credit Union (BECU), dismissing her claims that she was wrongfully terminated on the basis of her race, national origin, sex, and age, and in violation of public policy. Because she failed to raise an issue of material fact sufficient to survive summary judgment for each claim, we affirm.

FACTS

Leticia Domingo began working for BECU in 1994 at age 52. In February 2001, BECU Director of Member Services Support Department, Melanie Walsh, received a complaint that Domingo was behaving violently toward her coworkers. One coworker, Jackie Jackson, complained that Domingo had placed her hands around her neck in a choking manner. When Walsh investigated the incident, she got a written statement from Jackson and watched a security video of the incident that corroborated Jackson's story. Walsh also got a written statement from coworker Shannon Koehler who stated that Domingo hit and pinched her on several occasions. BECU issued a written warning that Domingo's behavior was inappropriate and violated BECU's policy prohibiting harassment and workplace violence.¹ The warning stated that if she violated the policy again, BECU would terminate her employment. Walsh met with Domingo to explain the warning, and Domingo said she understood the consequences of violating the policy again. Domingo declined to submit a written statement of her version of events.

At some other point during Domingo's employment,² she filed a complaint against coworker Vicki Gunns. Domingo alleged that Gunns hit her in a violent and offensive manner with the back of her chair. One of her supervisors, Maureen Morgan, investigated the complaint. After viewing the security videotape of the incident, she concluded the act was unintentional.

Several weeks after Domingo had received the written warning for acting violently toward Jackson, Koehler again complained about Domingo. She reported that Domingo had poked her with the sharp end of her pen. This complaint prompted a second investigation. Domingo denied that the episode took place. While the second investigation was pending, Kohler and Gunns reported that on two separate occasions Domingo made a threatening gesture by raising her arm with a closed fist as if she was going to strike them. Koehler stated she felt violated and was "always on [her] guard wondering if [Domingo] will do it again." Walsh never interviewed Domingo about the incident. After the second investigation confirmed Domingo's continuing violent behavior, BECU terminated her employment on April 10, 2001. Several coworkers later revealed that Domingo harassed, abused, and threatened them, and others admitted they witnessed the behavior.³

Domingo sued BECU under chapter 49.60 RCW, the Washington Law against Discrimination (WLAD), alleging that she was wrongfully terminated on the basis of her race, national origin, sex, and age, and the termination violated public policy. She also claims BECU harassed her in violation of the WLAD. The trial court granted summary judgment in favor of BECU. Domingo appeals.

ANALYSIS

In cases involving employment discrimination under the WLAD, Washington courts use the burden shifting analysis established in McDonnell Douglas Corp. v. Green.⁴ Under this framework, the plaintiff has the initial burden of proving a prima facie case. Once the plaintiff establishes a prima facie case, an inference of discrimination arises. In order to rebut this inference, the defendant must present evidence that the plaintiff was terminated for a legitimate reason. The plaintiff must then show that the proffered reason is a pretext for discrimination. The plaintiff has the final burden of persuading the trier of fact that discrimination was a substantial factor in the termination decision.⁵ If a plaintiff cannot establish specific and material facts to support each element of the prima facie case, the defendant is entitled to judgment as a matter of law.⁶ If a plaintiff cannot present evidence that the defendant's reasons are untrue or mere pretext, summary judgment is proper. Even if both parties meet their requisite burdens, summary judgment is still proper if no rational trier of fact could conclude the action was discriminatory.

"For instance, an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employers decision, or if the plaintiff created only a weak issue of fact as to whether the employers reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred...."[⁷]

We review summary judgments de novo and conduct the same inquiry as the trial court,⁸ considering all facts submitted and all reasonable inferences in the light most favorable to the nonmoving party.⁹ But before we review the trial court's decision granting summary judgment, we must determine whether the trial court erred by considering an affidavit that Domingo claims violates Civil Rule 56(e).

I. Melanie Walsh's Declaration

Domingo argues that the trial court erroneously considered her supervisor Melanie Walsh's declaration as evidence.¹⁰ She claims that much of the affidavit is inadmissible under CR 56(e)¹¹ because it contains hearsay references to videotape evidence that BECU was unable to produce at trial. We disagree for three reasons.

First, Walsh's description of what she saw on the videotape is not hearsay. Hearsay is an out-of-court statement offered for the truth of the matter asserted, and it is generally inadmissible absent an applicable exception.¹² In this case, Walsh's testimony is not offered for the truth of the matter asserted. Rather, it was offered to show Walsh's motivation for the decision to reprimand and eventually terminate Domingo's employment.¹³

Second, the videotape was unavailable and thus other evidence of its contents—in this case, Walsh's testimony about what it contained—is admissible under ER 1004. ER 1004 states that other evidence of the contents of a writing, recording, or photograph is admissible if the originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith. There is no evidence that BECU taped over the evidence in bad faith. Rather, the record suggests that they taped over it in the ordinary course of business.

Third, the authority Domingo cites to support her argument that Rule 56(e) prohibits Walsh from testifying about a videotape that is not in the record does not stand for that proposition. In Melville v. State,¹⁴ the court refused to consider an affidavit from the plaintiff's lawyer in which he asserted facts based on evidence that was not in the record. But in that case, the statements were not based on his personal knowledge and therefore did not comply with CR 56(e) requirements. In this case, Walsh viewed the videotapes herself. Therefore, her statements about what they contained are based on her personal knowledge and properly considered under CR 56(e).

Because the trial court properly considered this affidavit, we also consider it when we review the trial court's decision dismissing Domingo's discrimination claims on summary judgment.

II. Sex Discrimination

To establish a prima facie sex discrimination case, a plaintiff must show that she: (1) is a member of a protected class; (2) was discharged; (3) was doing satisfactory work; and (4) was replaced by a person of the opposite sex or otherwise outside the protected group.¹⁵ In any sex discrimination action based on disparate treatment, the plaintiff must demonstrate that she or he was treated differently from persons of the opposite sex who are otherwise similarly situated.¹⁶ Domingo argues she has presented adequate evidence under both theories to survive summary judgment. We disagree for two reasons.

First, although Domingo has shown she is a woman, was discharged, and was doing satisfactory work, she cannot show that she was replaced by a member outside the protected class, i.e., a man. We reject Domingos argument that under Kuest v. Regent Assisted Living, Inc.,¹⁷ she does not have the burden of showing she was replaced by a man because Kuest does not stand for that proposition. That case involved a pregnant woman who was replaced by a woman who was not pregnant. Accordingly, though not a man, her replacement was outside the protected class. In this case, Domingo was not replaced by a person outside of the protected class—in fact, she was replaced by a woman.

Second, Domingos own declaration indicates she cannot demonstrate that she was treated differently from persons of the opposite sex who are otherwise similarly situated. Although she states she believes she was treated differently from others based on her gender, her own declaration suggests that is not true. Domingo states, "No other man or woman that I am aware of made a complaint about being hit by a co-worker at BECU and had this complaint dismissed"¹⁸ and "[n]o other man or woman that I am aware of was dismissed by BECU on trumped up charges of violence."¹⁹ Because Domingo presents no evidence that she was treated differently from a similarly situated man, summary judgment on Domingos disparate treatment claim was proper.

III. National Origin and Race Discrimination

To establish a prima facie case of racial discrimination based on disparate treatment, a plaintiff must show that his or her employer treats some people less favorably than others because of his/her...