Scrivener v. Clark Coll.

• Decision Date: 18 September 2014
• Docket Number: No. 89377–2.,89377–2.
• Citation: 181 Wash.2d 439,334 P.3d 541
• Court: Washington Supreme Court
• Parties: Kathryn SCRIVENER, Petitioner, v. CLARK COLLEGE, Respondent.

181 Wash.2d 439

334 P.3d 541

Kathryn SCRIVENER, Petitioner

v.CLARK COLLEGE, Respondent.

No. 89377–2.

Supreme Court of Washington, En Banc.

Sept. 18, 2014.

Sue-del McCulloch, Law Offices of Sue–Del McCulloch LLC, Portland, OR, for Petitioner.

Christopher Lanese, Office of the Attorney General, Olympia, WA, for Respondent.

Jeffrey Lowell Needle, Maynard Building, Michael Craig Subit, Frank Freed Subit & Thomas LLP, Seattle, WA, for Amicus Curiae on behalf of Washington Employment Lawyers Association.

Opinion

WIGGINS, J.

¶ 1 The purpose of Washington's Law Against Discrimination (WLAD), chapter 49.60 RCW, is to eliminate and prevent discrimination in the workplace. RCW 49.60.010. The legislature passed the statute after finding that discrimination “threatens not only the rights and proper privileges of [Washington] inhabitants but menaces the institutions and foundation of a free democratic state.” Id. Accordingly, the legislature directs us to construe the WLAD liberally. RCW 49.60.020.

¶ 2 Kathryn Scrivener sued Clark College, claiming that age was the reason it did not hire her for a tenure track teaching position. She was 55 years old at the time, squarely within the 40– to 70–year–old age range protected by the WLAD. The chosen hires were both under the age of 40. The trial court granted summary judgment in Clark College's favor, finding that Scrivener failed to prove that the college's stated reason for its decision was a pretext. The Court of Appeals affirmed. Scrivener v. Clark Coll., 176 Wash.App. 405, 407, 309 P.3d 613, review granted, 179 Wash.2d 1009, 316 P.3d 495 (2013).

¶ 3 Today, we clarify the standard plaintiffs must meet to overcome summary judgment. Employees may satisfy the pretext prong of the McDonnell Douglas framework by offering sufficient evidence to create a genuine issue of material fact either (1) that the employer's articulated reason for its action is pretextual or (2) that, although the employer's stated reason is legitimate, discrimination nevertheless was a substantial factor motivating the employer. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). Applying this standard, we reverse summary judgment. Scrivener created a genuine issue of material fact concerning whether age was a substantial factor motivating Clark College's decision to hire younger candidates.

Facts

¶ 4 Scrivener began teaching as an adjunct instructor at Clark College in 1994. In 1999, Clark College hired her as a full-time, temporary English instructor. It has renewed her one-year contract every year since that time. In 2005, she applied for a tenure-track teaching position in the English Department.

¶ 5 Clark College initiated the search for an English instructor in November 2005. The college received 152 applications meeting the minimum qualifications, which were a master's degree in English, rhetoric and composition, or professional-technical writing, and teaching experience. From these applicants, the screening committee interviewed 13 candidates who gave teaching demonstrations. The screening committee then chose four candidates to refer to the president and vice president of instruction.

¶ 6 Scrivener was one of the four candidates the committee referred to the president and vice president. She possessed all of the qualifications listed as required and desirable on the recruitment announcement. President Branch and interim Vice President of Instruction Sylvia Thornburg interviewed Scrivener in May 2006 and informed her the same day that she was not chosen to fill either of the vacant English positions. Instead, Clark College hired two applicants under the age of 40. Scrivener was 55 years old at the time.

¶ 7 Scrivener filed a complaint against Clark College for unlawful age discrimination in violation of RCW 49.60.180. Scrivener's allegation of age discrimination is based on the following evidence.

¶ 8 During President Branch's 2006 “State of the College” address, he stated that there was a “glaring need” for younger talent within the college's faculty. In a public forum, President Branch also advocated requiring no experience for the English positions. Scrivener argues that this creates an inference that he wanted to attract younger applicants to the position.

¶ 9 Scrivener additionally presents evidence that President Branch hired many people under age 40 (only 44 percent of the tenure track faculty hires were 40 years of age or older during the 2005–06 school year); made light of her interview by impersonating Jon Stewart, host of television's The Daily Show; and requested applicants with “ ‘funk,’ ” “ ‘i.e., youthfulness.’ ” Scrivener, 176 Wash.App. at 410, 309 P.3d 613.

¶ 10 Clark College counters the allegation of age discrimination by asserting that 74 percent of its workforce is age 40 or over, both President Branch and interim Vice President Thornburg were well above age 40, and the hired candidates were better fits for both the institution and the English department. The college also directs the court's attention to the steering committee's observation that Scrivener lost her place at one point during her teaching demonstration, which could have caused some confusion in a class. Other weaknesses were that she could have turned to face her audience more when she was writing on the board and that “[w]hile [her] exuberance and passion were seen by the committee as positive, there could be an off-putting reaction by some passive students because of such an up-front style.” Interim Vice President Thornburg attests that age was not discussed during the consideration of the candidates and that she and President Branch agreed that Scrivener was ranked last among the finalists.

Analysis

¶ 11 Today, we discuss the WLAD, clarify how the WLAD plaintiffs may overcome summary judgment, and explore whether the trial court properly granted summary judgment.

1. Standard of Review

¶ 12 We review a trial court's grant of summary judgment de novo. Camicia v. Howard S. Wright Constr. Co., 179 Wash.2d 684, 693, 317 P.3d 987 (2014). Summary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). When making this determination, we consider all facts and make all reasonable, factual inferences in the light most favorable to the nonmoving party. Young v. Key Pharms., Inc., 112 Wash.2d 216, 226, 770 P.2d 182 (1989).

2. Age Discrimination Claims

¶ 13 Under the WLAD, it is an unfair practice for an employer to refuse to hire any person on the basis of age if the person is within the protected class of individuals between the ages of 40 and 70. RCW 49.60.180(1) ; Griffith v. Schnitzer Steel Indus., Inc., 128 Wash.App. 438, 446–47, 115 P.3d 1065 (2005). At trial, the WLAD plaintiff must ultimately prove that age was a “substantial factor” in an employer's adverse employment action. Mackay v. Acorn Custom Cabinetry, Inc., 127 Wash.2d 302, 310, 898 P.2d 284 (1995). A “substantial factor” means that the protected characteristic was a significant motivating factor bringing about the employer's decision. See id. at 311, 898 P.2d 284 ; 6A Washington Practice: Washington Pattern Jury Instructions: Civil 330.01.01(WPI) (6th ed.2012). It does not mean that the protected characteristic was the sole factor in the decision. See Mackay, 127 Wash.2d at 310–11, 898 P.2d 284 ; WPI 330.01.01.

¶ 14 In Mackay we rejected the proposition that employees must prove that discrimination was the “determining factor” (i.e., that but for the discrimination, the employer's decision would have been different). Mackay, 127 Wash.2d at 309–10, 898 P.2d 284. We reasoned that to hold otherwise would be contrary to Washington's “resolve to eradicate discrimination” and would warp this resolve into “mere rhetoric.” Id. We refused to “erect the high barrier to recovery implicated by the ‘determining factor’ standard....” Id. at 310–11, 898 P.2d 284.

¶ 15 Relatedly, summary judgment to an employer is seldom appropriate in the WLAD cases because of the difficulty of proving a discriminatory motivation. See Riehl v. Foodmaker, Inc., 152 Wash.2d 138, 144, 94 P.3d 930 (2004) ; Sangster v. Albertson's, Inc., 99 Wash.App. 156, 160, 991 P.2d 674 (2000) (“Summary judgment should rarely be granted in employment discrimination cases.”); see also Rice v. Offshore Sys., Inc., 167 Wash.App. 77, 90, 272 P.3d 865 (2012) (When the record contains reasonable but competing inferences of both discrimination and nondiscrimination, the trier of fact must determine the true motivation.). To overcome summary judgment, a plaintiff only needs to show that a reasonable jury could find that the plaintiff's protected trait was a substantial factor motivating the employer's adverse actions. Riehl, 152 Wash.2d at 149, 94 P.3d 930. “This is a burden of production, not persuasion, and may be proved through direct or circumstantial evidence.” Id. ¶ 16 Where a plaintiff lacks direct evidence,¹ Washington courts use the burden-shifting analysis articulated in McDonnell Douglas, 411 U.S. 792, 93 S.Ct. 1817, to determine the proper order and nature of proof for summary judgment. Hume v. Am. Disposal Co., 124 Wash.2d 656, 667, 880 P.2d 988 (1994).

3. McDonnell Douglas Framework

¶ 17 Under the first prong of the McDonnell Douglas framework, a plaintiff bears the initial burden of establishing a prima facie case of discrimination, which creates a presumption of discrimination. Riehl, 152 Wash.2d at 149–50, 94 P.3d 930 ; Kastanis v. Educ. Emps. Credit Union, 122 Wash.2d 483, 490, 859 P.2d 26, 865 P.2d 507 (1993). Once the plaintiff establishes a prima facie case, the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Grimwood v. Univ. of Puget Sound, Inc., 110 Wash.2d 355, 363–64, 753 P.2d 517(1988).

¶ 18 “If the Defendant meets this burden, the third prong of the McDonnell Douglas test requires the...