Ellingson v. Spokane Mortg. Co.

• Decision Date: 11 January 1978
• Docket Number: No. 1667-III,1667-III
• Citation: 573 P.2d 389,19 Wn.App. 48
• Court: Washington Court of Appeals
• Parties: , 25 Fair Empl.Prac.Cas. (BNA) 90, 23 Wage & Hour Cas. (BNA) 900, 17 Empl. Prac. Dec. P 8365, 17 Empl. Prac. Dec. P 8491 Susan J. ELLINGSON, Respondent, v. SPOKANE MORTGAGE COMPANY, a corporation, and Metropolitan Mortgage and Securities Company, a corporation, Appellants.

Page 48

19 Wn.App. 48

573 P.2d 389, 25 Fair Empl.Prac.Cas. (BNA) 90,

23 Wage & Hour Cas. (BNA) 900,

17 Empl. Prac. Dec. P 8365,

17 Empl. Prac. Dec. P 8491

Susan J. ELLINGSON, Respondent, v. SPOKANE MORTGAGE COMPANY, a corporation, and Metropolitan Mortgage and Securities Company, a corporation, Appellants.

No. 1667-III.

Court of Appeals of Washington, Division III.

Jan. 11, 1978.

As Amended Jan. 26, 1978.

Raymond R. Tanksley, Jr., Tanksley, Richard, Padden, Derr & Carroll, Spokane, for appellants.

Thomas H. Brown, Clausen & Brown, Spokane, for respondent.

GREEN, Judge.

Plaintiff brought this action to recover damages for (1) discrimination in employment compensation based upon sex, and (2) an unfair practice resulting from her discharge following the filing of a discrimination complaint with the Human Rights Commission. From a judgment for plaintiff, defendants appeal. Plaintiff cross-appeals from the denial of damages for alleged mental anguish and emotional distress.

Two questions are presented: (1) Are the findings supported by substantial evidence and, if so, do they support the conclusions of law? and (2) Does the term "actual damages" contained in RCW 49.60.030(2) include damages for mental anguish and emotional distress? We answer each in the affirmative.

The first issue must be resolved in light of the evidence. On June 21, 1971, plaintiff was hired by Spokane Mortgage Co. as a clerk-typist in the loan closing department at a salary of $350 per month. At that time, the department consisted of Mrs. Manning, supervisor, $675 per month; Mr. McCarthy, a loan closer who was hired January 1, 1971, $550 per month; and two other loan closers, Mrs. Madison, $425 per month, and Mrs. Grigsby, $400 per month. Although Mrs. Grigsby had more time with the company as a loan closer, Mr. McCarthy was hired at a higher salary.

In September 1971, Mrs. Madison terminated and plaintiff began handling her duties, "FHA repos", and her pay was raised to $375 per month. At that time, the loan closing department consisted of Mrs. Manning, supervisor, $700 per month; Mrs. Grigsby, loan closer, $450 per month; Mr. McCarthy, loan closer, $600 per month; and plaintiff, $375 per month.

From November 1971 to January 1972, plaintiff filled in for Mr. McCarthy as he was ill, and she began doing all types of closings. Another clerk-typist was transferred to the department. When Mr. McCarthy returned, the substitute typist left and plaintiff reverted to her clerical duties while continuing to close loans on a more limited basis. In April 1972, the loan closing department consisted of Mrs. Manning, supervisor, $700 per month; Mrs. Grigsby, loan closer, $450 per month; Mr. McCarthy, loan closer, $650 per month; and plaintiff, $400 per month.

In early September 1972, when Mrs. Grigsby terminated, plaintiff assumed her duties and another clerk-typist was hired for the department but terminated 3 months later. By December 1972, the loan closing department consisted of Mrs. Manning, supervisor, $700 per month; Mr. McCarthy, loan closer, $650 per month; plaintiff, $450 per month; and a clerk-typist, $350 per month.

In the spring of 1973, another clerk-typist, Mrs. Mertens, was hired. Around the same time, Mrs. Manning, the supervisor, was discharged. The department then operated with plaintiff and Mr. McCarthy closing all of the loans, and Mrs. Mertens, clerk-typist. The relative salaries were: Mr. McCarthy, $650 per month; plaintiff, $500 per month; and Mrs. Mertens, $300 per month.

Mr. McCarthy testified that plaintiff began doing FHA closings 4 or 5 months after she was hired; and upon his return to work after his illness, she did all types of closings. After Mrs. Manning was discharged, Mr. McCarthy and plaintiff remained side-by-side at their desks, and plaintiff testified that he was not assigned the supervisory position, there was no change in the type of loans that they handled, and that it was just a matter of "Here, you take one and I take the next." Nancy West, another employee of defendants, testified that she observed no difference in the job functions between plaintiff and Mr. McCarthy; and that after Mrs. Manning's termination, she asked Mr. McCarthy whether he was the supervisor but he just "shrugged his shoulders." To the contrary, Mr. Robic, the executive vice president of Spokane Mortgage, testified that Mr. McCarthy became the supervisor when Mrs. Manning terminated, although the employees were not so informed.

In addition to closing loans, Mr. McCarthy signed checks and completion certificates, and ordered title insurance and surveys. However, these tasks were routine and simple, requiring no particular skill. In fact, plaintiff also ordered insurance and surveys. In an attempt to explain the difference in pay between plaintiff and Mr. McCarthy, defendants offered the testimony of Mr. Robic. He stated that due to Mr. McCarthy's former banking experience, he could be consulted regarding bank financing procedures. The record indicates this occurred once every 2 or 3 months. The trial court concluded in its oral decision that the use of Mr. McCarthy's prior experience was minimal.

There is substantial evidence from which the court could have found that from September 1971 to September 1972, plaintiff did almost all of the FHA repossession loan closings and some construction and regular closings; that during the same period, Mr. McCarthy processed all three types of loan closings; that from September 1972 to February 1973, plaintiff and Mr. McCarthy handled the same types of loan closings; and that plaintiff's work was and continued to be substantially the same as that performed by Mr. McCarthy.

In January 1974, plaintiff, and several other female employees of defendants, filed complaints ¹ with the Washington State Human Rights Commission alleging discrimination in employment compensation on the basis of sex. After plaintiff's complaint was filed, she was informed, for the first time, that Mr. McCarthy was the supervisor and would sign her time sheets. Defendants for the first time listed Mr. McCarthy as the supervisor and named all male employees as supervisors or executives on the payroll. In March, plaintiff was assigned additional clerical duties and did proportionately less closings than had been the pattern in the past. She was not given a salary increase in April, when the other employees got a raise, and on May 10, she was terminated. Mr. Robic stated the discharge was necessitated by a decrease in defendants' business. Although plaintiff had seniority and was qualified as a clerk- typist, defendants did not accord her that seniority by transferring her to another department, even though it was their general policy to transfer senior employees in the clerical field when layoffs occurred. In the brief investigation by the Commission, defendants answered interrogatories and denied that plaintiff was a "loan closer." After receiving unemployment compensation, plaintiff obtained another position doing loan closings, and within a few months her salary increased to $700 per month.

The trial court entered findings of fact, substantially as outlined above, detailing the relative positions and salaries within the loan closing department during the period of plaintiff's employment. It determined that defendants' actions constituted discrimination in employment and compensation on the basis of sex in violation of RCW 49.60.180. ² Through an evaluation of the work performed by Mr. McCarthy and plaintiff, the court arrived at wage differentials for the pertinent time periods and fixed the amount of damages at $3,118.75. It also determined that defendants' actions subsequent to the filing of plaintiff's complaint with the Commission constituted a retaliatory and unfair practice under RCW 49.60.210. ³ It awarded additional damages in the amount of $750 under the discretion authorized by RCW 19.86.090 ⁴ and the remedies allowed by the United States Civil Rights Act of 1964, and attorney's fees and costs to plaintiff. RCW 49.60.030(2); RCW 19.86.090; 42 U.S.C. § 2000e et seq.

THE APPEAL

First, defendants challenge many of the findings of fact which constitute the statement of facts recited above. They argue that the evidence only presents a difference in salary between plaintiff and Mr. McCarthy which is based on their comparative experience, seniority, quantity of production and worth to the company. They contend that plaintiff has failed to meet her burden of proof that the disparity in compensation was based on sex discrimination. We disagree.

Plaintiff commenced this action under the "law against discrimination", RCW 49.60, which prohibits discrimination in compensation because of sex and denotes such discrimination an unfair practice. ⁵ The basis of the action is disparate treatment between persons of the opposite sex who are otherwise similarly situated. It is, therefore, incumbent on the plaintiff to carry the initial burden of establishing a prima facie case of discrimination on the basis of sex. Here, the prima facie case was shown by evidence that the plaintiff, a member of one sex, received different treatment, i. e., less wages, than a person of the other sex where both are similarly situated, ⁶ doing substantially equal work. Once the prima facie case is shown, the burden of going forward then shifts to the employer to demonstrate that the difference in compensation is due to legitimate non-discriminatory reasons, i. e., factors other than sex. If the employer can overcome the prima facie case by showing a reasonable basis for the disparate treatment, then the burden shifts back to the plaintiff to demonstrate that the presumptively valid reasons were nonetheless a pretextual and discriminatory action. The ultimate burden of proof is on the plaintiff by a preponderance of the evidence. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973).

Here, plaintiff...