Howell v. Dep't of Soc. & Health Servs.
| Citation | 436 P.3d 368,7 Wash.App.2d 899 |
| Decision Date | 12 March 2019 |
| Docket Number | No. 35339-7-III,35339-7-III |
| Court | Court of Appeals of Washington |
| Parties | Brooke HOWELL, Appellant, v. DEPARTMENT OF SOCIAL AND HEALTH SERVICES, Respondent. |
Siddoway, J.¶1 Brooke Howell appeals the dismissal with prejudice of her discrimination claim asserted against the Department of Social and Health Services (DSHS). She contends that its rules and policies, including its practice of retaining records of "founded" filings of child neglect by individuals have a disparate impact on the ability of Native Americans like herself to obtain work. We hold that under the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW, an employee or applicant for employment can state a cause of action against a third party who interferes with the individual’s right to obtain and hold employment without discrimination.
¶2 A difficulty with the parties’ remaining arguments below and on appeal is that the record is not well developed with evidence of the policies of DSHS that are challenged, nor has DSHS presented evidence of high-level policy considerations that might afford it discretionary immunity. The fact that some of the rule- and policy-making authority of DSHS on which Ms. Howell appears to rely was delegated to the Department of Children, Youth, and Families in agency reorganizations effective after her complaint was filed exacerbates the lack of clarity. Ms. Howell may need to amend her complaint.
¶3 On the present record, DSHS’s arguments for dismissal fail. We reverse the trial court’s order that dismissed Ms. Howell’s complaint with prejudice and remand for further proceedings.
¶4 After Brooke Howell sued DSHS for alleged discrimination in violation of the WLAD, it filed a CR 12(c) motion for judgment on the pleadings, which the trial court granted. Our review requires us to assume the truth of facts alleged in Ms. Howell’s complaint as well as hypothetical facts. We summarize the allegations of her complaint and her argument.
DSHS’s complained-of conduct
¶5 Ms. Howell bases DSHS’s asserted liability on the manner in which it has exercised its discretion to impose background check requirements, and retain and make available findings from adjudicative hearings that can disqualify persons like her from employment.
¶6 She makes the following allegations:
¶7 Under RCW 43.43.832 et seq., many Washington employers are required to obtain a background check when hiring or retaining an individual in a position potentially involving unsupervised access to children or vulnerable adults.
¶8 Pursuant to authority delegated in chapter 26.44 RCW, it is DSHS that investigates and makes administrative findings against persons alleged to have committed child abuse or neglect.
¶9 DSHS is required by statute to "keep records concerning founded reports of child abuse or neglect as the department determines by rule." RCW 26.44.031(3). If a finding becomes final either after an administrative hearing or by default (because an accused person fails to appeal a notice of the finding), the accused’s name is placed in a database of persons with administrative findings of abuse, neglect or other employment-disqualifying conduct.
¶10 By rule, DSHS keeps "founded" findings of abuse or neglect as required by DSHS records retention policies. WAC 388-15-077.1 Under DSHS’s records retention policies, a final finding of abuse or neglect is nearly permanent and may not be expunged or removed from the Child Protective Services’ database for at least 35 years from the date of the finding.
¶11 A founded finding of child abuse or neglect is an automatic disqualification for certain types of health care employment, including types of health care employment that one might obtain with a nursing assistant degree.
¶12 The administrative hearing process granted under RCW 26.44.125 to a person who asks for review of a finding of child neglect by DSHS does not consider how the person’s actions are related to her suitability for affected employment. The appeal does not consider how long the disqualification is appropriate, mitigating factors justifying removing the finding, or whether the severity of the accusation or alleged conduct warrants a permanent sanction on the many foreclosed employment opportunities.
¶13 For persons with criminal convictions, some, but not others, may demonstrate their character, competence, and suitability to work with minors or vulnerable adults. Persons with founded findings of abuse and neglect are never allowed to demonstrate their character, competence and suitability, however.
¶14 Ms. Howell alleges that DSHS has options to expunge records without jeopardizing its policy goal of protecting vulnerable people.
¶15 Ms. Howell identifies her race as Native American and is an enrolled member of the Yakama Indian Nation. In 2015, she entered a Nursing Assistant Certified (NAC) training program, desiring to become certified and work in the health care field. In the middle of her school year and before beginning clinical rotations, she learned that DSHS had made a "founded" finding of child neglect against her several years earlier. Clearing a background check with DSHS is a mandatory part of completing the NAC program.
Ms. Howell was not allowed to complete the NAC program.
¶16 The finding against Ms. Howell followed her arrest in November 2012 for driving under the influence of alcohol (DUI). Ms. Howell’s three children were in the car with her. She was charged with DUI and reckless endangerment and addressed the charges by entering a diversion program.
¶17 Unknown to Ms. Howell at the time, DSHS made an administrative finding of child neglect against her for the incident leading to her arrest for DUI. It sent notice by certified mail to Ms. Howell but the notice went unclaimed and was returned to DSHS.
¶18 Upon learning of the finding and that it would prevent her from completing NAC training and becoming licensed, Ms. Howell appealed the founded finding in June 2015. An administrative law judge reversed the finding, but DSHS’s Board of Appeals reinstated the finding.
¶19 In January 2017, Ms. Howell asked DSHS to expunge her founded finding because of the effect of the finding on her ability to work. She asserts that she has complied with all of the conditions of her diversion, no longer drinks alcohol, and has no record of a criminal conviction as a result of the 2012 incident. DSHS did not respond to her request.
Disparate impact claim
¶20 Ms. Howell’s complaint alleges on information and belief that Native Americans are approximately four times more likely than white persons to have founded findings of child abuse or neglect discovered through background checks of DSHS records. She alleges that DSHS’s policy of retaining the founded findings for so long, without review or an opportunity for expungement, disparately impacts the ability of Native Americans to obtain work, education, training, and licensure in a field of their choosing.
¶21 Ms. Howell alleges that DSHS has no legitimate reason for indefinitely maintaining and reporting the findings. She alleges that even if DSHS has a legitimate reason for indefinitely maintaining its findings, a less discriminatory alternative to its current practice exists: DSHS "could ... permit accused persons to expunge their findings after demonstrating their rehabilitation; reduce the period of retention of the record on a background check when there is no evidence of future harm to children; or periodically review all records to determine ongoing need to retain any given record in its background check database." Clerk’s Papers (CP) at 9.
The motion to dismiss
¶22 After answering and amending its answer to the complaint, DSHS moved under CR 12(c) for an order dismissing the complaint. It argued, first, that its conduct is not subject to the WLAD for two reasons: because it is not the employer, and the WLAD imposes liability for employment discrimination only on a plaintiff-employee’s employer; and because the prohibition on Ms. Howell’s being employed as an NAC is the direct result of an initiative of the people that bars the employment as long-term care workers of individuals with "founded" findings. Alternatively, it argued that its actions are entitled to discretionary immunity.
¶23 Ms. Howell did not allege in her complaint that DSHS was an employer. She responded to DSHS’s motion to dismiss by arguing that her complaint’s allegations that DSHS’s practices "exert[ ] direct control over the list of prospective candidates available to ... employers" and "foreclosed [her] chosen career path," "raise a factual issue significant enough that it should not be dismissed at this early stage." CP at 44.
¶24 In responding to the motion, Ms. Howell conceded that the November 2011 Initiative Measure No. 1163, codified at RCW 74.39A.056, raises a statutory bar to employment as a "long-term care worker" for individuals found to have committed child neglect. But she argued that she is not challenging that law; she is challenging DSHS’s dissemination of its findings without a method to avoid racial disparity. Alternatively, she argues that other types of employment would remain available to NACs but for DSHS’s practice.
¶25 The trial court granted DSHS’s motion and dismissed the complaint. Ms. Howell appeals.
¶26 Ms. Howell first argues that her complaint pleads a prima facie case of disparate impact; hence, the trial court erred in dismissing it. "[T]he WLAD creates a cause of action for disparate impact." Kumar v. Gate Gourmet Inc., 180 Wash.2d 481, 503, 325 P.3d 193 (2014). The theory of liability prevents employers from adopting facially neutral policies that create or perpetuate discriminatory effects. Id. "To establish a prima facie case of disparate impact, the plaintiff must show that (1) a facially neutral employment practice (2) falls...
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...the facts alleged in the complaint and view them in the light most favorable to the nonmoving party. Howell v. Dep't of Soc. & Health Servs. , 7 Wash. App. 2d 899, 910, 436 P.3d 368 (2019).¶ 99 The McCartneys do not argue that information in the public record contains disputed facts, but ra......
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...authority to vacate or expunge a final substantiated finding of child abuse. ¶ 67 Appellants cite Howell v. Department of Social & Health Services, 7 Wash. App. 2d 899, 436 P.3d 368 (2019), to support their argument that RCW 74.39A.056 is not a categorical employment bar. But Howell involve......
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Garcia v. Dep't of Soc. & Health Servs.
...authority to vacate or expunge a final substantiated finding of child abuse.¶ 67 Appellants cite Howell v. Department of Social & Health Services, 7 Wash. App. 2d 899, 436 P.3d 368 (2019), to support their argument that RCW 74.39A.056 is not a categorical employment bar. But Howell involved......
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...complaint and view them in the light most favorable to the nonmoving party. Howell v. Dep't of Soc. &Health Servs., 7 Wn.App. 2d 899, 910, 436 P.3d 368 (2019). The McCartneys do not argue that information in the public record contains disputed facts, but rather that the trial court improper......