Mackay v. Acorn Custom Cabinetry, Inc.

Decision Date20 July 1995
Docket NumberNo. 61560-8,61560-8
Citation898 P.2d 284,127 Wn.2d 302
CourtWashington Supreme Court
Parties, 71 Fair Empl.Prac.Cas. (BNA) 1067 Gail L. MACKAY, Appellant, v. ACORN CUSTOM CABINETRY, INC., a Washington corporation and Robert L. Anderson, Respondents.

Paul A. Lindenmuth, Tacoma, for appellant.

Sebris, Busto & Marshall, P.S., Mark R. Busto, Ellen T. Kremer, Jane H. Graham, Bellevue, for respondents.

Peterson, Bracelin, Young, Putra, Fletcher & Zeder, Kelby D. Fletcher, Seattle, Jeffrey Needle, Seattle, amicus curiae for Washington Employment Lawyers Assn.

Davis, Wright & Tremaine, Thomas A. Lemly, Seattle, amicus curiae for Ass'n of Washington Business.

DOLLIVER, Justice.

Plaintiff Gail L. Mackay challenges a trial court's jury instruction which directed the jury to find in Plaintiff's favor in a discrimination case brought pursuant to RCW 49.60.180(2), only if it concluded, inter alia, that gender was the "determining factor" in the decision by the Plaintiff's former employer, Defendants Acorn Custom Cabinetry, Inc. and Robert Anderson, to discharge the Plaintiff.

Plaintiff was employed as a salesperson by Defendant Acorn Custom Cabinetry, Inc. from November 1988 until January 9, 1992, at which time she was involuntarily terminated. At that time, Plaintiff was informed by Defendant Robert Anderson, President of Acorn, that she was being discharged for economic reasons. Shortly after dismissing Plaintiff, however, Anderson rehired a male salesperson who had worked for Acorn before Plaintiff.

In May 1992, Plaintiff filed an action against both Acorn and Anderson pursuant to RCW 49.60.180(2), in which she claimed, inter alia, that she was unlawfully discharged due to her gender. The case proceeded to a jury trial in January 1994.

At trial, Plaintiff alleged that her male counterparts at Acorn were given preferential treatment. Anderson acknowledged that Plaintiff was instructed to turn her accounts over to a male co-worker when business declined and that one of Plaintiff's male co-workers received a company car phone while she did not. Plaintiff also alleged that Acorn is a "gender hostile work environment." Brief of Appellant, at 7. Anderson testified that photographs of partially clad women are affixed to some of the walls in Acorn's offices, that derogatory comments are occasionally made about women, and that women are sometimes referred to as "girls". Verbatim Report of Proceedings (VRP), at 39.

As further proof of discrimination, Plaintiff proffered a recommendation letter given to her by Anderson, in which he wrote: "I have never met another female with as much cabinet knowledge and sales ability as she has." Clerk's Papers, at 104; see VRP, at 69. She also proffered Anderson's admission that he would not rehire her should business improve because he did not believe that "women could sell higher priced cabinets." Clerk's Papers, at 104.

At trial, Anderson testified that he terminated Plaintiff not for economic reasons, as he told her in January 1992, but because he believed her attitude and job performance to be poor. Anderson claimed that Plaintiff's poor attitude was manifested by negative comments about the high cost of the company's product and by conflicts with co-workers, and that this poor attitude contributed to Plaintiff's unsatisfactory sales performance.

At the close of the presentation of evidence, Plaintiff proposed to the trial court that the jury be instructed to find in her favor if it concluded that gender was a "substantial factor" in Acorn's dismissal decision. At the same time Acorn proposed that the jury be directed to find for Plaintiff only if it concluded that gender was a "determining factor" in the decision. After the trial judge and the attorneys for both parties engaged in an extensive debate over the applicable standard, the trial court opted to give a "determining factor" instruction. VRP, at 244. After receiving this instruction, the jury requested a clarification of the term "determining factor". Clerk's Papers, at 135. The court responded by indicating:

In determining whether plaintiff's gender was a determining factor in the decision by defendant to terminate plaintiff's employment, you need not find that her gender was the sole motivating factor. However, it is not enough for you to find that her gender entered into the defendant's decision. In order for you to find that plaintiff's gender was a determining factor, you must find that but for her gender, plaintiff would not have been discharged.

Clerk's Papers, at 135.

After deliberating, the jury returned a verdict in favor of Acorn, which it concluded had not unlawfully discharged Plaintiff. Plaintiff subsequently moved for a new trial on the ground the trial court improperly instructed the jury to apply the "determining factor" standard. The trial court denied the motion. Plaintiff then petitioned this court to review the issue.

RCW 49.60.180(2) 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 or the use of a trained guide dog or service dog by a disabled person.

At issue in the present case is the meaning of the phrase "because of" as utilized in this statute. Plaintiff contends that the phrase requires the trier of fact to find for the Plaintiff if it concludes that any of the enumerated attributes was a "substantial factor" in the employer's adverse employment decision. Acorn urges that the phrase only warrants such a finding if the trier of fact concludes that one of the listed attributes was a "determining factor" in the employer's decision.

As Acorn notes, the "determining factor" standard has been employed by Washington's Court of Appeals in a number of cases. See Lords v. Northern Automotive Corp., 75 Wash.App. 589, 881 P.2d 256 (1994); Sellsted v. Washington Mut. Sav. Bank, 69 Wash.App. 852, 851 P.2d 716, review denied, 122 Wash.2d 1018, 863 P.2d 1352 (1993); Burnside v. Simpson Paper Co., 66 Wash.App. 510, 832 P.2d 537 (1992), aff'd, 123 Wash.2d 93, 864 P.2d 937 (1994); Pannell v. Food Servs. of Am., 61 Wash.App. 418, 810 P.2d 952, 815 P.2d 812 (1991), review denied, 118 Wash.2d 1008, 824 P.2d 490 (1992); deLisle v. FMC Corp., 57 Wash.App. 79, 786 P.2d 839, review denied, 114 Wash.2d 1026, 793 P.2d 974 (1990); Stork v. International Bazaar, Inc., 54 Wash.App. 274, 774 P.2d 22 (1989). However, with the exception of the Lords court, none of these courts was presented with the question of whether the "determining factor" standard or the "substantial factor" standard is applicable in an action brought pursuant to RCW 49.60.180(2). Although the Lords court was confronted with this question, it summarily dismissed the plaintiff's contention that a "substantial factor" instruction should have been given, without offering any analysis or explanation for doing so. Lords, at 609, 881 P.2d 256.

In Pannell, there was controversy over the trial court's invocation of the term "determining factor". However, the plaintiff in that case did not argue that the "substantial factor" standard should have supplanted the "determining factor" standard. He conceded that the "determining factor" standard was applicable, and instead argued that the "but for" language utilized by the trial court did not reflect that standard. The appellate court disagreed, holding that both the "determining factor" and "but for" language represent the same standard. Pannell, at 435, 810 P.2d 952.

Moreover, although each of the Court of Appeals cases cited by Acorn has invoked the "determining factor" standard, none has offered any reason as to why this standard is appropriate. Therefore, these cases offer neither persuasive authority nor guidance on the question of whether the "determining factor" test or the "substantial factor" test is the appropriate standard in a case brought pursuant to RCW 49.60.180(2).

Acorn also contends that the Court of Appeals opinions in Hatfield v. Columbia Fed. Sav. Bank, 57 Wash.App. 876, 790 P.2d 1258 (1990) and Carle v. McChord Credit Union 65 Wash.App. 93, 827 P.2d 1070 (1992) lend support to its proposition that the "determining factor" standard is appropriate. However, in neither of these cases does the court utilize the phrase "determining factor". Rather, in Hatfield the court asserted:

"The ultimate issue is whether age was a factor in a decision of an employer to terminate [a] ... claimant and whether the age of claimant made a difference in determining whether he was to be retained or discharged."

(Italics ours.) Hatfield, at 882, 790 P.2d 1258 (quoting Ackerman v. Diamond Shamrock Corp. 670 F.2d 66, 70 (6th Cir.1982)). That court also posed the question in the following terms:

Has [claimant] come forward with evidence sufficient to create an inference that [employer] was motivated by discriminatory intent when it terminated him? ...

(Italics ours.) Hatfield, at 882, 790 P.2d 1258. Similarly, in Carle the court stated:

"The plaintiff must prove by a preponderance of the evidence that the reason offered by the employer for plaintiff's discharge is a pretext and that a discriminatory reason more likely motivated the employer." ...

(Footnote omitted. Italics ours.) Carle, at 107, 827 P.2d 1070.

It is not clear whether the "made a difference" and "motivated" language employed by these two courts implicates the "determining factor" standard. Regardless, like the Sellsted, Burnside, Pannell, deLisle, and Stork courts, neither the Hatfield nor the Carle court discussed whether or not the articulated language was appropriate. Therefore, like those cases, these two cases provide no guidance on the question of whether the "determining factor" standard or the "substantial factor" standard is appropriate in a case brought pursuant to RCW...

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