Hill v. BCTI Income Fund-I

• Decision Date: 08 October 1999
• Docket Number: No. 23219-7-II.,23219-7-II.
• Citation: 97 Wash.App. 657,986 P.2d 137
• Court: Washington Court of Appeals
• Parties: Eleanor HILL, a single woman, Respondent/Cross Appellant, v. BCTI INCOME FUND-I, a Washington limited partnership, d/b/a/ Business Computer Training Institute, a Washington corporation; John Doe and Jane Doe I-X, d/b/a/ BCTI Associates; Business Computer Training Institute, Inc., a corporation, Appellants/Cross Respondents.

986 P.2d 137

97 Wash.App. 657

Eleanor HILL, a single woman, Respondent/Cross Appellant, v. BCTI INCOME FUND-I, a Washington limited partnership, d/b/a/ Business Computer Training Institute, a Washington corporation; John Doe and Jane Doe I-X, d/b/a/ BCTI Associates; Business Computer Training Institute, Inc., a corporation, Appellants/Cross Respondents.

No. 23219-7-II.

Court of Appeals of Washington, Division 2.

October 8, 1999.

Michael B. King, Lane Powell Spears Lubersky, Carolyn H. Ladd, Jackson Lewis Schnitzler & Krupman, Seattle, for Appellant BCTI Income Fund-I.

Thomas J. West, Thompson Krilich Laporte Tucci & West Ps, Tacoma, for Respondent.

ARMSTRONG, J.

BCTI appeals a jury verdict and judgment in favor of former employee Eleanor Hill for age discrimination. Hill cross-appeals the dismissal of her disability discrimination claim. BCTI raises various issues, but one disposes of BCTI's appeal: Is the evidence sufficient to support the verdict where Hill offered evidence that BCTI's reason for discharging her was a pretext, but she did not present evidence that the actual reason was her age? We hold that it is not; accordingly, Hill failed to prove an age discrimination claim because she did not prove that she was terminated because of her age. We reverse the age discrimination judgment for Hill and affirm the dismissal of her disability claims.

FACTS

BCTI trains students in office skills. In August 1993, 53-year-old Eleanor Hill was hired as a public relations representative in the Tacoma office. Hill's job was to recruit students; she became the top recruiter in her office. Hill was supervised by Randy Potter and Terry Clark. In January 1994, Hill expressed an interest to Potter in transferring to BCTI's Southcenter site. According to Hill, Potter and Clark told her they would help her transfer. Hill moved her residence to Seattle in February 1994.

When she was hired, Hill was receiving social security disability payments because of chronic asthma. Hill testified that the commute from Seattle to Tacoma aggravated her asthma and caused her to miss work, and that she had told Potter and Clark that the commute was "bothering [her] from a physical standpoint."

On May 3, 1994, Hill was hospitalized for three days for an asthma attack. Hill testified that while hospitalized, she told both Potter and Clark that she had been hospitalized because of her asthma, that she thought it was caused by her commute, and that she was still thinking of transferring to the Southcenter office. According to Hill, both again offered to help her transfer. Hill missed a month of work in May because of the asthma attack. While she was off work in May, Hill called Tammy Johnson, the public relations supervisor at the Southcenter office, and asked if there were any open positions. Johnson told her "[n]ot at this time" but to "[k]eep in touch." Hill testified that Johnson did not tell her that she should not be talking to Johnson.

Also in May, Hill and Johnson attended a three-day retreat in Port Townsend. Hill again talked to Johnson about a transfer to Southcenter. Hill testified that she told Johnson that if she went to Southcenter, she "would have to make $8 an hour," and "would have to have full time and benefits...." But Hill denied discussing with Johnson her actual salary or benefits at the Tacoma office. According to Johnson, however, Hill told her that she presently made $8.00 an hour, that her current supervisors had promised her free computer courses, and that she worked full time. BCTI claimed to have an unwritten policy forbidding employees from discussing a transfer with anyone other than the employee's immediate supervisor. Hill testified that no one ever told her of the policy.

When Hill approached Johnson again on June 3 about a transfer, Johnson referred her to Potter. Several days later, Hill told Potter that she needed to transfer to Southcenter because of her asthma. On June 7, Potter met with Hill to ask about her conversations with Johnson during the retreat. Potter testified that Hill denied talking with Johnson about her current salary and benefits. Hill maintained that she had told Johnson only what she would have to receive in the future in order to transfer. On June 8 or 9, Potter and Clark both met with Hill. Hill testified that they told her that they were "gonna have to let you go ... [b]ecause you lied to us." They also told her that Johnson had said that Hill discussed her current salary and benefits at the retreat.

According to Potter, if Hill had "take[n] ownership" of the allegations that she had discussed her salary and benefits with Johnson, she would have been disciplined and given her transfer, rather than fired. Clark and Potter maintained that Hill was fired because she was "dishonest" in telling Johnson her salary and benefits and then in not "owning up" to that conversation. Both denied firing Hill because of her age or race. Hill was replaced by a younger employee who handled the Tacoma area, an African-American male who was under 40, and by a white female who handled the Lacey area.

Hill sued, alleging that she was fired because of her race (African-American), her age, and her handicap (asthma). The disability claim alleged both disparate treatment (termination) and failure to accommodate (refusing to transfer). At the close of Hill's case, the trial court directed a verdict for BCTI on the handicap discrimination claim, ruling that Hill had not shown that the transfer was medically necessary because of her asthma.

The jury found that BCTI discriminated against Hill on the basis of her age and awarded her $119,000 in damages. The trial court awarded Hill her attorney's fees and costs. BCTI's motion for a judgment as a matter of law was denied.

ANALYSIS

A. Beyond Pretext

Under the "McDonnell Douglas"¹ burden-shifting scheme, the plaintiff in an age discrimination claim must produce evidence that (1) she was discharged from employment; (2) at the time of discharge she was between 40 and 70 years of age; (3) she was doing satisfactory work; and (4) she was replaced by a younger person. Carle v. McChord Credit Union, 65 Wash.App. 93, 99, 827 P.2d 1070 (1992) (citing Grimwood v. University of Puget Sound, Inc., 110 Wash.2d 355, 362, 753 P.2d 517 (1988)). To avoid a directed verdict, the employer must then produce evidence of a nondiscriminatory reason for the discharge. Carle, 65 Wash. App. at 100, 827 P.2d 1070 (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 255, 101 S.Ct. 1089, 1094-95, 67 L.Ed.2d 207 (1981)). If the employer does so, the burden shifts back to the employee to produce "rebuttal" evidence that the defendant's alleged reason for discharge is a "pretext for what, in fact, is a discriminatory purpose." Grimwood, 110 Wash.2d at 364, 753 P.2d 517. But if the employer produces evidence of a non-discriminatory reason, the McDonnell Douglas framework of presumptions and burdens is no longer relevant. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407 (1993). Rather, "[t]he presumption, having fulfilled its role of forcing the defendant to come forward with some response, simply drops out of the picture." St. Mary's, 509 U.S. at 510-11, 113 S.Ct. 2742 (citing Burdine, 450 U.S. at 255, 101 S.Ct. 1089).

The issue here is: does an employee meet the "pretext" stage by producing evidence only that the employer's reason is unworthy of belief? Or must the employee go further and produce evidence that the real reason was the discriminatory purpose? Tailored to this case, the question is whether Hill's verdict can stand when she produced evidence that BCTI did not fire her for dishonesty in handling the transfer, but she did not produce evidence that BCTI fired her because of her age.

The United States Supreme Court has created some confusion on this issue. In St. Mary's, the Supreme Court held that an employee who proves the employer's reason for the discharge is a pretext is not entitled to judgment as a matter of law. Rather, the employee still has the ultimate "burden of persuasion" that discrimination occurred. St. Mary's, 509 U.S. at 511, 113 S.Ct. 2742. In reaching this decision, the Court uttered several apparently conflicting comments. First, the Court said that disbelief of the employer's proffered reasons will permit an inference of intentional discrimination, agreeing with the Court of Appeals that "[n]o additional proof of discrimination is required." St. Mary's,509 U.S. at 511,113 S.Ct. 2742 (citation omitted).

Yet later, the Court explained that McDonnell Douglas "does not say... that all the plaintiff need do is disprove the employer's asserted reason." St. Mary's, 509 U.S. at 517, 113 S.Ct. 2742. Rather, under McDonnell Douglas, after the employer has provided its nondiscriminatory reason, "`[the employee] must be given a full ... opportunity to demonstrate ... that whatever the stated reasons for his rejection, the decision was in reality racially premised.'" St. Mary's, 509 U.S. at 517-18, 113 S.Ct. 2742 (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805 n. 18, 93 S.Ct. 1817, 1825, n. 18, 36 L.Ed.2d 668 (1973)). And the Court was confident that nothing in McDonnell Douglas would allow "us to substitute for the required finding that the employer's action was the product of unlawful discrimination, the much different (and much lesser) finding that the employer's explanation of its action was not believable." St. Mary's, 509 U.S. at 514-15, 113 S.Ct. 2742.

Faced with these puzzling pronouncements, the federal circuits have fallen into disarray. The Third,² Seventh,³ Tenth,⁴ and Eleventh⁵ Circuits have held that evidence of pretext alone is enough to get to the jury. The First,⁶ Second,⁷ Fifth,⁸ and the Eighth⁹ Circuits have held that pretext alone is not sufficient; the employee must produce evidence that the real reason was discriminatory. The Ninth Circuit is perhaps undecided.¹⁰...