Roberts v. Atlantic Richfield Co., No. 44087

• Court: United States State Supreme Court of Washington
• Writing for the Court: STAFFORD; WRIGHT; ROSELLINI
• Citation: 88 Wn.2d 887,568 P.2d 764
• Parties: , 115 L.R.R.M. (BNA) 4699 John H. ROBERTS, Appellant, v. ATLANTIC RICHFIELD COMPANY, Respondent.
• Decision Date: 18 August 1977
• Docket Number: No. 44087

Page 887

88 Wn.2d 887 568 P.2d 764, 115 L.R.R.M. (BNA) 4699 John H. ROBERTS, Appellant,
v.
ATLANTIC RICHFIELD COMPANY, Respondent. No. 44087. Supreme Court of Washington, En Banc. Aug. 18, 1977.

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[568 P.2d 766] Karr, Tuttle, Koch, Campbell, Mawer & Morrow, James R. Dickens, James L. Austin, Jr., Seattle, for appellant.

Perkins, Coie, Stone, Olsen & Williams, John F. Aslin, Steven S. Bell, Seattle, for respondent.

STAFFORD, Associate Justice.

John Roberts, plaintiff below, appeals from a directed verdict in favor of defendant Atlantic Richfield Company (Arco) at the close of plaintiff's case before a jury. We affirm.

Appellant had worked for Arco since 1969 and since 1959 for a company purchased by Arco. His work record indicates he was a good employee and he was steadily promoted. In October 1975, appellant, at the age of 42, was involuntarily terminated from his lower-mid-management position with Arco.

Appellant brought suit alleging: (1) that Arco discriminated against him because of his age; (2) that the circumstances of his employment created an implied condition he would not be terminated in bad faith, but that he had been so terminated; and, (3) that he could not be terminated without just cause and that none existed.

Prior to trial the judge established the order in which appellant and Arco were to present their proof because if appellant established a prima facie case of age discrimination the burden of proof would shift to Arco to show appellant had been discharged for reasons other than his age. Hodgson v. First Fed. Sav. & L. Ass'n, 455 F.2d 818 (5th Cir. 1972). Appellant has neither assigned error to the trial court's order of proof touching his basic claims nor has he

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claimed that the order of proof prevented him from fully and adequately presenting all necessary evidence in support of those claims. Further, he has not argued the point in his brief. Thus, we will not consider the matter further. ROA I-43, Schneider v. Forcier, 67 Wash.2d 161, 406 P.2d 935 (1965).

At the close of appellant's case, the trial judge granted Arco's motion for a directed verdict based primarily on the conclusion that, with certain exceptions not here present, appellant's employment was terminable at his employer's will. Appellant's motion for reconsideration or for a new trial was denied and this appeal followed.

Inasmuch as the trial was terminated at the close of appellant's case, on Arco's motion for directed verdict, we must interpret the evidence most strongly against Arco and most favorably for appellant, drawing every reasonable inference in favor of Mr. Roberts. Leach v. Ellensburg Hosp. Ass'n, 65 Wash.2d 925, 400 P.2d 611 (1965); Parrish v. Ash, 32 Wash.2d 637, 203 P.2d 330 (1949); Haugen v. Minnesota Min. & Mfg. Co., 15 Wash.App. 379, 550 P.2d 71 (1976). Therefore, we look to the evidence, which came solely from appellant and his [568 P.2d 767] witnesses, and also to appellant's brief, which we assumed has treated the evidence in a light most favorable to his case.

Appellant has stated in his brief that in January of 1974, during the period of gasoline shortage, regulations of the Federal Energy Administration (FEA) established a national system of mandatory gasoline allocation. See 10 C.F.R. §§ 202, 211.225 (1976). Arco and its dealers were subject to FEA allocation procedures and internal accounting controls designed to insure that retail dealers would receive no more than their allocated share of gasoline.

Appellant explains that he was transferred, demoted, and eventually terminated by Arco for his participation in and awareness of certain "cross-billing" procedures. "Cross-billing" is a method of record alteration or falsification by which gasoline legally allocated for delivery from a supplier to an overstocked retail dealer is, by prearrangement

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between the retail dealers involved and an employee of the supplier, redirected to an understocked dealer to fill his needs in excess of his FEA allocation. In order to cover up the illegally redirected allocation, the original retail dealer is billed by the supplier as if he had actually received the allotment. The other retail dealer, who in fact has received the gasoline, then pays the first retail dealer directly without accounting to the supplier or to the FEA to show where the gasoline was actually delivered.

Appellant was first transferred and demoted by Arco for directing a "cross-billing" incident which Mr. Roberts felt had benefited a dealer who needed more gasoline than was authorized by his FEA allocation. Thereafter, appellant was terminated for his knowledge of another instance of "cross-billing" accomplished by an employee under his supervision. Appellant's letter of discharge from Arco stated that he was being discharged for actions in violation of company policy and FEA regulations.

In Washington an employer has the right to discharge an employee, with or without cause, in the absence of a contract for a specified period of time. Webster v. Schauble, 65 Wash.2d 849, 400 P.2d 292 (1965); accord Lasser v. Grunbaum Bros. Furn. Co., 46 Wash.2d 408, 281 P.2d 832 (1955). However, both Congress and the Washington state legislature have created exceptions to the terminable-at-will doctrine. ¹

As appellant points out, one of the exceptions created in this state is that an employer cannot terminate an

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employee because of age. RCW 49.60.180(2). Thus, appellant contends, the trial court erred by granting Arco's motion for a directed verdict because he presented a prima facie case of age discrimination at trial which shifted the burden of proof to Arco to explain its reasons for his termination.

We have not had occasion to delineate the evidence necessary to establish a prima facie case of age discrimination. However, we are not without precedent. Federal statutes, which like our own seek to eliminate such discrimination, have received judicial scrutiny. A series of federal cases has held that a plaintiff-employee has the initial burden of presenting a prima facie case of age discrimination. Thereafter, the burden shifts to the defendant-employer to show that the employee was discharged for reasons other than his age. Hodgson v. First Fed. Sav. & L. Ass'n, supra at 822. To establish a prima facie case, a plaintiff must show more than that he was within the protected age group (i. e. ages 40-65) and was dismissed without explanation. [568 P.2d 768] Bishop v. Jelleff Assoc., 398 F.Supp. 579, 593 (D.C.1974). In Wilson v. Sealtest Foods Div. of Kraftco Corp., 501 F.2d 84, 86 (5th Cir. 1974), an employee produced sufficient evidence to defeat a motion for directed verdict when he showed that he

was within a protected class, was asked to take early retirement against his will, was doing apparently satisfactory work, and was replaced by a younger person . . .

Appellant produced evidence that he was 42 years of age at the time of his termination and thus within the protected age group. He was doing satisfactory work until he was transferred, demoted and subsequently terminated after the "cross-billing" incidents. Further, Arco had an early retirement program for management employees who were approximately 55 years of age. But this program was not mandatory and appellant was not asked to participate in it. Even viewed most favorably to appellant, this evidence is not sufficient to support a prima facie case of age discrimination under the criteria established in Wilson.

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Appellant does not come within the age discrimination exception to the terminable-at-will doctrine of employment.

Appellant attempted to bolster his claim of age discrimination by asserting that Arco had a policy of forcing older employees to retire or resign and then replacing them with younger employees. To prove this policy, appellant offered testimony from two former Arco employees in their mid-fifties who had allegedly been forced to retire about a year before because of their age. The offer of proof contained no evidence that these employees held comparable...