Fulton v. State, Dep't of Soc. & Health Servs.

• Decision Date: 26 June 2012
• Docket Number: No. 41499–6–II.,41499–6–II.
• Citation: 115 Fair Empl.Prac.Cas. (BNA) 635,279 P.3d 500,169 Wash.App. 137
• Court: Washington Court of Appeals
• Parties: Jo–Ann FULTON, Appellant, v. STATE, DEPARTMENT OF SOCIAL & HEALTH SERVICES, Respondent.

169 Wash.App. 137

279 P.3d 500

115 Fair Empl.Prac.Cas. (BNA) 635

Jo–Ann FULTON, Appellant,

v.STATE, DEPARTMENT OF SOCIAL & HEALTH SERVICES, Respondent.

No. 41499–6–II.

Court of Appeals of Washington,

Division 2.

June 26, 2012.

Larry James King, Attorney at Law, Olympia, WA, Frederick Henry Gautschi, III, Gautschi Law Firm, LLC, Seattle, WA, for Appellant.

Christopher Lanese, Office of the Attorney General, Olympia, WA, for Respondent.

HUNT, J.

[169 Wash.App. 140]¶ 1 Jo–Ann Fulton appeals the superior court's grant of summary judgment to the Department of Social and Health Services (DSHS) and dismissal of her gender discrimination claim under the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW. She argues that the superior court erred in ruling that she had failed to establish a prima facie case because (1) under analogous federal law, DSHS's failure to post or to accept applications for the Operations Manager position relieved her of the duty to “apply for” promotion to the position; (2) she introduced evidence that she was “qualified for” the position; and (3) DSHS used an informal selection process to appoint a male candidate instead. Fulton also argues that she sufficiently demonstrated that DSHS's reasons for not promoting her were pretext for gender discrimination.¹

¶ 2 Adopting the relaxed federal standards for failure-to-promote cases where an employer does not formally post or accept applications for a job opening, we hold that Fulton did not need to show that she had “applied for” the Operations Manager position to meet her threshold burden under McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), for establishing a prima facie case under the unique facts here. Nevertheless, we affirm the superior court's summary judgment dismissal of Fulton's action because she has not shown that DSHS's reasons for hiring a man, instead of promoting her to the Operations Manager position, were pretext for gender discrimination.

FACTS

I. Alleged Gender Discrimination

¶ 3 Fulton worked for DSHS for approximately 26 years (1984 to 2010) until May 31, 2010, when she retired from her position in the Division of Program Support. She had been working as a Medical Assistance Specialist 5 when, on October 17, 2005, Office Chief Kathy Eberle temporarily appointed Fulton “Acting” Operations Manager,² without specifying an end date.³ Clerk's Papers (CP) at 6. Fulton held this temporary Acting Operations Manager position until March 27, 2006, when the Director of the Division of Program Support, Maryanne Lindeblad, temporarily appointed Fulton Acting Office Chief after Eberle left DSHS for another job.⁴

[169 Wash.App. 142]¶ 4 Before leaving DSHS, Eberle asked Fulton if she would hold the Acting Office Chief position until DSHS could “recruit” and “fill” the position. CP at 6. According to Fulton, (1) she initially expressed “reluctance” to become the Acting Office Chief; (2) she finally agreed to hold the position after she received assurances that she would return to the Acting Operations Manager position after DSHS found a permanent Office Chief; and (3) she expressed interest in being appointed as the permanent Operations Manager when she indicated to Eberle that she “liked” the Operations Manager position and that she “wanted to return” to the position after her time as Acting Office Chief expired. CP at 7, 124. According to DSHS, neither Eberle (before she left) nor Lindeblad promised Fulton that she would become the permanent Operations Manager, and Fulton's “return rights” ⁵ always remained to her previous Medical Assistance Specialist 5 position. CP at 75–76.

¶ 5 During the next few months, DSHS underwent a reorganization. On August 1, Fulton began reporting to Robert Covington ⁶ (DSHS Division of Systems and Monitoring), who had assumed the responsibility for filling the Office Chief and Operations Manager positions on a permanent basis.⁷ DSHS first posted a job opening for the permanent Office Chief position, accepted applications, and interviewed top candidates based on their resumes and cover letters. Consistent with her earlier expressions to Eberle, Fulton did not apply for the Office Chief position. A panel of three managers, including Covington and Lindeblad, interviewed the candidates and unanimously ranked Karen De Leon, a woman, as the top candidate and Milton Haire, a man, as the runner up. On August 22, Covington appointed the top candidate, De Leon, as permanent Office Chief.

¶ 6 Covington considered the remaining candidates for the Office Chief position so “outstanding” that he asked DSHS's Human Resources Office if he could offer the permanent Operations Manager position to the runner-up, Haire, because he did not want to spend additional time and resources on another competitive recruitment process. CP at 139. Haire exceeded the qualifications of the Operations Manager position: He had over 2.5 years of experience in claims management, over 12 years experience as a manager, extensive knowledge of the Washington State Medicaid Information System, and a working knowledge of federal and state Medicaid laws and regulations. After receiving confirmation from the Human Resources Office that he could fill the position without a formal recruitment process, Covington offered Haire the Operations Manager position.⁸ Haire accepted, and on August 31, Covington appointed Haire permanent Operations Manager.

¶ 7 As was the case with the Office Chief position, Fulton did not apply for the Operations Manager position because, after choosing to select from the existing Office–Chief applicant pool, DSHS did not post the job opening. And neither Fulton nor anyone on her behalf had told Covington that she had previously expressed to Eberle an “interest” in filling the Operations Manager position on a permanent basis or that she had an “expectation” that she would fill the position long-term.⁹ CP at 138. Because Fulton had not applied and was not part of the Office–Chief applicant pool, Covington never considered her as a candidate for the permanent Operations Manager position. Like Fulton, Richard Fisher, a male employee who had also formerly served as the “Acting” Operations Manager for two years in the past, was not considered for the permanent Operations Manager position because he, too, had not applied for the Office Chief position.

¶ 8 After De Leon's and Haire's appointments, Fulton returned to her former position as Medical Assistance Specialist 5. She then began reporting to Haire, whom she had previously supervised.

II. Procedure

¶ 9 Nearly three years later, on July 16, 2009, Fulton sued DSHS for gender discrimination ¹⁰ for failing to consider her for the permanent Operations Manager position. She sought back pay, front pay, ¹¹ and reasonable attorney fees. DSHS denied that it had discriminated against Fulton based on gender or any other unlawful basis and asserted that Fulton had failed to state a claim upon which relief may be granted.¹²

¶ 10 DSHS then moved for summary judgment on grounds that (1) Fulton could not establish a prima facie case of gender discrimination because she had not shown that she had “applied for” and was “qualified for” an available position or that such position went to a person outside of her “protected group” (i.e., women) ¹³; (2) Fulton failed to show that DSHS's reasons for not promoting her were “pretext” for gender discrimination; (3) although Fulton claimed she was unfairly denied the opportunity to apply and to compete for the Operations Manager position, she was not treated any differently than any other employee (male or female) who did not apply for the Office Chief position; and (4) even if Fulton had applied for the Office Chief position, Covington would not have hired her as either the permanent Office Chief or Operations Manager because he “lacked confidence” in her managerial abilities.¹⁴ CP at 27–28.

¶ 11 Fulton responded that (1) she could establish a prima facie case under the relaxed standards for failure-to-promotecases, which federal courts have adopted and which do not require a person to “apply for” a job position if an employer does not give notice of the position's availability; and (2) she could prove that DSHS's reasons for not promoting her were pretextual because DSHS's reliance on the Office Chief candidate pool to fill the Operations Manager position was not a “legitimate” nondiscriminatory reason and Covington's appraisal of her managerial capabilities was “not worthy of belief.” CP at 114–16, 120–21.

¶ 12 After hearing oral argument on DSHS's summary judgment motion, the superior court orally ruled that Fulton had failed to demonstrate a “prima facie case” of gender discrimination. Verbatim Report of Proceedings (VRP) at 18. The superior court then entered an order granting DSHS summary judgment and dismissing Fulton's gender discrimination claim with prejudice. Fulton appeals.

ANALYSIS

¶ 13 Fulton argues that the superior court erred in granting summary judgment to DSHS because (1) she did not need to show that she had “applied for” the Operations Manager position under the relaxed standards that federal courts have used in failure-to-promote cases and, therefore, established a prima facie case of gender discrimination; and (2) she sufficiently showed that DSHS's reasons for not promoting her were pretext for gender discrimination.

¶ 14 We agree with Fulton that, under the facts of this case and under the relaxed federal standards for failure-to-promote cases, she did not need to show that she had “applied for” the Operations Manager position in order to meet her initial burden of establishing a prima facie gender discrimination case under the McDonnell Douglas burden-shifting scheme. Nevertheless, we affirm summary judgment because she later failed to demonstrate that DSHS's reasons for not promoting her were pretext for gender discrimination.

I. Standard of Review; McDonnell Douglas...