Kuest v. Regent Assisted Living, Inc.

• Decision Date: 25 March 2002
• Docket Number: No. 48097-9-I.,48097-9-I.
• Citation: 43 P.3d 23,111 Wash.App. 36
• Court: Washington Court of Appeals
• Parties: Jodi KUEST, Appellant, v. REGENT ASSISTED LIVING, INC., an Oregon corporation; Chris Belford, Respondents.

43 P.3d 23

111 Wash.App. 36

Jodi KUEST, Appellant, v. REGENT ASSISTED LIVING, INC., an Oregon corporation; Chris Belford, Respondents.

No. 48097-9-I.

Court of Appeals of Washington, Division 1.

March 25, 2002.

Scott Fredericksen, Seattle, for Respondents.

Jerry Robert McNaul, Gregory J. Hollon, Seattle, for Appellant.

GROSSE, J.

Washington law prohibits employment discrimination against women based on their potential to become pregnant and Jodi Kuest has raised a material issue of fact as to whether she was fired on that basis. Further, it is a question of fact whether Regent Assisted Living, Inc.'s written policies regarding progressive discipline may have modified the at-will nature of Kuest's employment contract by containing promises of specific treatment in specific situations. The trial court's determinations to the contrary are reversed.

FACTS

Regent Assisted Living, Inc. (Regent) hired Kuest in early 1998 as the general manager of their Northshore facility, then under construction. Regent emphasized that it needed Kuest to begin her employment within two weeks of hire, even though her current employer needed at least three weeks' notice prior to her leaving in order for Kuest to be rehired in the future. Kuest left her five-year position as a department supervisor at an Alzheimer's care unit, allegedly on oral assurances that she would have a long history with Regent and that Regent used progressive disciplinary methods.

After accepting the position, Kuest signed a written employment contract and an acknowledgment that included a disclaimer that her employment was at will and that Regent's policies did not constitute a contract with Kuest. After beginning her employment, Kuest received an employee handbook that contained a second copy of the disclaimer, and a supervisor's manual that contained the terms of Regent's "Progressive Disciplinary Policy." Kuest was instructed to use the disciplinary policy prior to terminating employees.

Kuest had no experience managing a start-up facility, but she received positive feedback for several months on her progress as a general manager and the progress of the fledgling Northshore facility. Kuest also received constructive feedback regarding the Northshore facility's enrollment numbers, budgetary concerns, and staffing issues. At a managers meeting in late-October, two of her supervisors inquired about her childbearing plans and Kuest admitted that she planned to have children. She was fired two weeks later. Regent replaced Kuest with a woman nearly 60 years of age.

Kuest wrote a letter to Regent's personnel department requesting information regarding her termination. Six weeks after her termination, Kuest received a "Counseling Statement/Corrective Action Form" dated the day of her termination. The statement listed meetings in September and October under "Previous Corrective Action," and the reasons listed under "Incident" leading to Kuest's termination were a combination of budget excesses, family and resident complaints, lack of assistance in coordinating a publicity event, and failure to complete a facility checklist.

Kuest sued Regent for sex discrimination, wrongful termination based on violations of express and implied contracts, and promissory estoppel. Regent countered that it terminated Kuest for legitimate and non-pretextual reasons as listed in the termination documents. Regent also claimed that other deciding factors in Kuest's termination included high staff turnover and poor management skills. The trial court determined that Kuest had not carried her evidentiary burden of raising any triable issue of fact, awarded summary judgment to Regent, and granted Regent deposition costs pursuant to RCW 4.84.010. Kuest appeals all rulings. We apply the usual standard of review.¹

DISCUSSION

1. Sex Discrimination Claim.

RCW 49.60 provides:

It is an unfair practice for any employer:

....

(2) To discharge or bar any person from employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability.... [²]

Regent has more than eight employees, and thus is an employer that must comply with the provisions of RCW 49.60 and its interpretive regulations at WAC 162-30.³ Furthermore, although Regent contends otherwise, at the time of Kuest's termination the prohibition against sex discrimination included discrimination against a woman based on her potential to become pregnant.

The legislative purpose of RCW 49.60 provides:

This chapter ... is an exercise of the police power of the state for the protection of the public welfare, health, and peace of the people of this state, and in fulfillment of the provisions of the Constitution of this state concerning civil rights. The legislature hereby finds and declares that practices of discrimination against any of its inhabitants because of race, creed, color, national origin, families with children, sex, marital status, age, or the presence of any sensory, mental, or physical disability ... are a matter of state concern, that such discrimination threatens not only the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state.[⁴]

RCW 49.60.180, addressing the unfair practices of employers, provides that an employer cannot "discharge or bar any person from employment because of ... sex[.]"⁵ Additionally, at the time of Kuest's termination, former WAC 162-30-020, interpreting RCW 49.60.180 regarding sex discrimination in employment practices, stated:

Treatment of employed women. It is an unfair practice for an employer to discharge a woman, penalize her in terms or conditions of employment, or in any way limit the job opportunities of a woman because she is pregnant or may require time away from work for childbearing.[⁶]

We believe the prohibition against sex discrimination under RCW 49.60.180 in 1998 clearly encompassed discrimination based on a woman's potential to become pregnant and her need to have time away from work for childbearing, prior to the change in the administrative code, specifically including this form of discrimination. Regent's interpretation of the regulations that existed at the time of Kuest's termination impermissibly narrows the broad purpose and coverage of RCW 49.60.⁷ Thus, we hold that if Regent terminated Kuest based on her potential to become pregnant it committed sex discrimination prohibited by RCW 49.60.

To establish a discrimination claim, a plaintiff must first illustrate that the plaintiff has a prima facie case.⁸ A plaintiff alleging sex discrimination must show: (1) membership in a protected class; (2) the employee is qualified for the employment position or performing substantially equal work; (3) an adverse employment decision including termination or denial of promotion; and (4) selection by the employer of a replacement or promoted person from outside the protected class.⁹ The employee alleging discrimination must establish specific and material facts to support each element of his or her prima facie case.¹⁰

If a prima facie case is established, a "`legally mandatory, rebuttable presumption' of discrimination temporarily takes hold" and the employer must produce sufficient evidence of a legitimate and nondiscriminatory explanation for the employment action.¹¹ If the employer meets this burden of production, the presumption established by the prima facie evidence is rebutted and the employee must then provide evidence of pretext.¹²

As the court stated in Hill v. BCTI Income Fund I, while a prima facie case, plus evidence sufficient to disbelieve the employer's explanation for the termination, will ordinarily suffice to raise the issue of pretext and require a full trial, it will not always be the case:

Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law.[¹³]

However, once evidence supporting a prima facie case, a non-discriminatory explanation, and pretext have been presented and "the record contains reasonable but competing inferences of both discrimination and nondiscrimination, `it is the jury's task to choose between such inferences.'"¹⁴

It is clear that Kuest is a member of a protected class under RCW 49.60 and that she was discharged soon after her superiors asked her about her childbearing plans and she admitted she planned to have children. Kuest recalls that when the question was asked there was no context of discussions about family issues and she was sufficiently disturbed that she called her husband. Kuest's replacement was a woman nearly 60 years old, not of childbearing age, and thus outside the protected class of women who are likely to become pregnant. Kuest was also performing substantially equal work as other Regent managers at the time of her termination. Kuest has shown that she both hired and fired staff, looked after a budget for her site, opened and promoted the Northshore facility, and attended manager meetings. Kuest has raised sufficient facts to meet all elements of a prima facie case.

Regent counters that its termination of Kuest was legitimate and non-discriminatory. Regent states Kuest failed to meet Regent's performance standards and points to Kuest's termination form. Kuest's termination form provided that Kuest had received previous corrective action in three separate meetings. Kuest's termination form also indicated that the reasons leading to Kuest's termination were budget overruns due to Kuest's mismanagement, family and resident complaints, lack of assistance in coordinating a marketing event, and failure to complete a facility checklist. These proffered...