Stork v. International Bazaar, Inc.

• Decision Date: 30 May 1989
• Docket Number: No. 21251-6-I,21251-6-I
• Citation: 57 Fair Empl.Prac.Cas. (BNA) 1056,54 Wn.App. 274,774 P.2d 22
• Court: Washington Court of Appeals
• Parties: , 57 Fair Empl.Prac.Cas. (BNA) 1056 Mae STORK, Appellant, v. INTERNATIONAL BAZAAR, INC. and Peter J. Hong, Respondents.

Page 274

54 Wn.App. 274

774 P.2d 22, 57 Fair Empl.Prac.Cas. (BNA) 1056

Mae STORK, Appellant, v. INTERNATIONAL BAZAAR, INC. and Peter J. Hong, Respondents.

No. 21251-6-I.

Court of Appeals of Washington Division 2.

May 30, 1989.

Michael W. Gendler and Bricklin & Gendler, Seattle, for Appellant, Mae Stork

Steven T. McFarland, Michael E. Ritchie, and Ellis & Li, Seattle, for Respondents, Intern. Bazaar, Inc.

SWANSON, Judge.

Mae Stork appeals the trial court's judgment dismissing her claims of discrimination, harassment The trial court's findings of fact, which we find to be supported by substantial evidence, may be summarized as follows:

                emotional distress, and constructive discharge, and awarding costs to the defendants, International Bazaar, Inc. and Peter J. Hong.   We affirm
                

During January through June of 1985, Peter Hong was employed by International Bazaar, an import retail business, as an "independent consultant" who actively participated in most, if not all, aspects of International Bazaar's management. Hong recommended that all International Bazaar store managers hire senior citizens from local senior community centers. Pursuant to this recommendation International Bazaar directed advertising at senior citizens and in January 1985 hired 64 year old Mae Stork as a sales clerk in its Everett Mall store. Stork worked full time and performed her job in a satisfactory manner.

In April 1985, the manager of the Everett Mall store, Pam Chappel, announced that she was leaving her position. Stork indicated that she was interested in the position and Chappel encouraged her to apply. At Stork's request, Chappel agreed to work with Stork to familiarize her with the manager's duties. Chappel also recommended to Hong that Stork be promoted to manager.

Although Stork was qualified for the manager's position, International Bazaar hired Mr. Kim to fill the position in June 1985. Prior to the hiring decision being made, Kim had represented to Hong that he had a university degree in business administration, a knowledge of management and bookkeeping, experience in running his own business, and experience in the importing business. Stork lacked these credentials and experience. Hong told Stork that he was hiring Kim because of his retail experience. The trial court found that shortly after Kim was hired, Hong "more likely than not" told Chappel that Stork was not hired/promoted as manager because she was "too old". However, before, during and after June 1985, International Bazaar employed other store managers who were over 40 years old.

On at least two occasions after becoming store manager, Kim attempted to limit Stork's job duties explicitly on account of her age. On another occasion, Kim implied that Stork was dishonest. This resulted in a meeting between Stork and Hong in June 1985 in which Stork's employment with International Bazaar ended. Stork claims that Hong demanded her resignation. Hong claims that Stork resigned voluntarily.

On August 1, 1985, Stork filed a complaint against International Bazaar and Hong alleging discrimination, harassment, infliction of emotional distress, and constructive discharge. The case was tried to the court without a jury from June 24 through June 29, 1987. After Stork rested her case, the defendants moved to dismiss. The court weighed the evidence and dismissed all of Stork's claims except her claim for age discrimination in failing to promote her to the manager's position.

Following the conclusion of the case, the court entered findings of fact, conclusions of law and judgment dismissing all of Stork's claims and awarding costs to the defendants. In dismissing Stork's claim of age discrimination, the trial court concluded that although Stork had satisfied her prima facie case, she failed to satisfy her burden of proving that age was the determinative factor in the employment decision. With regard to the other claims of discrimination and those of harassment, infliction of emotional distress, and constructive discharge, the trial court concluded that there was insufficient evidence to support them. This appeal timely followed.

AGE DISCRIMINATION

Stork bases her age discrimination claim upon RCW 49.60.180: "It is an unfair practice for any employer ... (2) [t]o discharge or bar any person from employment because of age ..." This statute, however, does not provide any criteria for establishing an age discrimination case. Grimwood v. University of Puget Sound, Inc., 110 Wash.2d 355, 361, 753 P.2d 517 (1988). Therefore, the Washington courts The federal courts have recognized that a prima facie case of age discrimination can be made out in at least three ways:

                have looked for guidance to federal cases construing the Age Discrimination in Employment Act of 1967 (ADEA), 29 U.S.C. § 621 et seq.  (1976).   See Grimwood, 110 Wash.2d at 361, 753 P.2d 517;   Brady v. Daily World, 105 Wash.2d 770, 776, 718 P.2d 785 (1986);   Roberts v. ARCO, 88 Wash.2d 887, 892, 568 P.2d 764 (1977)
                

First, a plaintiff may produce evidence proving all prongs of the test established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) and Price v. Maryland Casualty Co., 561 F.2d 609 (5th Cir.1977). To show a prima facie case under this test, the plaintiff must prove that "(1) he was a member of the protected group, (2) he was discharged, (3) he was replaced with a person outside the protected group, and (4) he was qualified to do the job." Id. at 612. Second, a plaintiff can make out a prima facie case by direct evidence of discriminatory intent. Third, a prima facie case may be established by statistical proof of a pattern of discrimination.

Buckley v. Hospital Corp. of America, Inc., 758 F.2d 1525, 1529 (11th Cir.1985) (citing Pace v. Southern Ry. Sys. 701 F.2d 1383, 1388 (11th Cir., cert. denied, 464 U.S. 1018, 104 S.Ct. 549, 78 L.Ed.2d 724 (1983)). See also Loeb v. Textron, Inc., 600 F.2d 1003, 1016-17 (1st Cir.1979).

If a prima facie case is established by means of the McDonnell Douglas test, the burden shifts to the defendant-employer to articulate a legitimate, nondiscriminatory reason for the decision. Grimwood, 110 Wash.2d at 364, 753 P.2d 517. However, the burden of persuasion remains at all times upon the plaintiff. Grimwood, 110 Wash.2d at 363, 753 P.2d 517. Once the employer fulfills this burden of production, the plaintiff must satisfy his ultimate burden of persuasion by showing that the employer's articulated reasons are a mere pretext for what is a discriminatory purpose. Grimwood, 110 Wash.2d at 363-64, 753 P.2d 517.

In Grimwood, Brady, and Roberts, the Washington Supreme Court has adopted the analysis set forth in McDonnell Douglas, Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), as the method for proving a claim of age discrimination in Washington. The Grimwood court, however, also recognized that the federal courts do not regard this as the exclusive method for proving a claim of discrimination. ¹ Grimwood, 110 Wash.2d at 363, 753 P.2d 517. But even though such recognition was given, Grimwood went on to emphasize that "the burden of persuasion remains at all times upon the plaintiff" and gave no indication that any other standard was being adopted in Washington. Grimwood, 110 Wash.2d at 363, 753 P.2d 517.

Washington courts, however, have not yet explicitly addressed the issue of whether methods other than the McDonnell Douglas analysis will be recognized for the purpose of establishing a prima facie case of age discrimination. Stork contends that she established a prima facie case of age discrimination under the second method discussed above by presenting direct evidence of discriminatory intent and, therefore, the trial court erred by applying the McDonnell Douglas analysis. The United States Supreme Court has held that, under the ADEA, the McDonnell Douglas test is inapplicable where the plaintiff presents direct evidence of discrimination. TWA, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621, 83 L.Ed.2d 523 (1985). The apparent reasoning of the Supreme Court is that "[t]he shifting burdens of proof set forth in In application, the federal courts have made the following distinctions between the McDonnell Douglas analysis and the direct evidence analysis:

McDonnell Douglas are designed to assure that the 'plaintiff [has] his day in court despite the unavailability of direct evidence.' Loeb v. Textron, Inc., 600 F.2d 1003, 1014 (CA1 1979)." TWA, 469 U.S. at 121, 105 S.Ct. at 632.

Under the McDonnell Douglas test plaintiff establishes a prima facie case when the trier of fact believes the four circumstances outlined above which give rise to an inference of discrimination. Where the evidence for a prima facie case consists, as it does here, of direct testimony that defendants acted with a discriminatory motivation, if the trier of fact believes the prima facie evidence the ultimate issue of discrimination is proved; no inference is required. Defendant cannot rebut this type of showing of discrimination simply by articulating or producing evidence of legitimate, non-discriminatory reasons. Once an unconstitutional motive is proved to have been a significant or substantial factor in an employment decision, defendant can rebut only by proving by a preponderance of the evidence that the same decision would have been reached even absent the presence of that factor. (Emphasis in original; footnotes omitted).

Buckley, 758 F.2d at 1529-30 (quoting Lee v. Russell Cy. Bd. of Educ., 684 F.2d 769, 774 (11th Cir.1982)). See also Price Waterhouse v. Hopkins, --- U.S. ----, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989). Therefore, to establish a prima facie case by direct evidence under the ADEA, the plaintiff is required to establish two factors: first, provide direct evidence that defendants acted with a discriminatory motivation; and second, prove that the discriminatory motivation was a "significant or substantial

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