Xieng v. Peoples Nat. Bank of Washington

Decision Date21 January 1993
Docket NumberNo. 59064-8,59064-8
Citation844 P.2d 389,120 Wn.2d 512
Parties, 65 Fair Empl.Prac.Cas. (BNA) 1090 Phanna K. XIENG and Bathou Xieng, husband and wife, Respondents, v. PEOPLES NATIONAL BANK OF WASHINGTON, Petitioner.
CourtWashington Supreme Court

Miller, Nash, Wiener, Hager & Carlsen, James R. Dickens, Beth M. Andrus, Seattle, for petitioner.

Helsell, Fetterman, Martin, Todd & Hokanson, David F. Jurca, Laura F. Pasik, Seattle, for respondents.


The trial court found that plaintiff was discriminated against in his employment because of his national origin, a violation of RCW 49.60.180(3). The court entered these now unchallenged findings of fact:

Defendant's reason for not promoting plaintiff to a Credit Authorizer or Loan Officer position was because of plaintiff's foreign accent....

Plaintiff's accent did not interfere materially with his job performance, nor would it have interfered materially with his job performance as a Credit Authorizer or Loan Officer if he had been promoted to such a position.

Finding of fact 22; Clerk's Papers, at 649-50.

From those unchallenged findings, the court entered the following never challenged conclusion of law:

Defendant discriminated against plaintiff in compensation or in other terms or conditions of employment because of national origin, in violation of RCW 49.60.180(3).

Conclusion of law 2; Clerk's Papers, at 652.

The primary issue is whether, despite such findings of fact, the employer has a complete defense to statutorily prohibited employment discrimination if the employer has what defendant describes as a good faith belief that the national origin accent would materially interfere with job performance? The answer is no. It would be incongruous for a fact finder to be persuaded that the national origin characteristic would not materially interfere with job performance and, from the same evidence, find that the employer, in fact, in good faith and based on substantial evidence held a belief diametrically opposed thereto.

In addition to (1) that primary issue, also at issue are: (2) whether payments made under a disability insurance policy purchased by the employer can be offset against a judgment obtained by an employee in an employment discrimination action; (3) whether expert witness fees are a proper element of a costs award; and (4) whether a back pay award should be terminated as of the time when the employer eliminates the disputed position. The trial court rejected the employer's request to offset the disability payments, awarded expert witness fees and rejected a cutoff of back pay. The Court of Appeals affirmed the trial court's disposition of each of these issues. Xieng v. Peoples Nat'l Bank of Wash., 63 Wash.App. 572, 821 P.2d 520 (1991). We affirm.

The facts will be briefly summarized here. The trial court's findings of fact are set out in the appendix. The plaintiff employee, Mr. Xieng, is of Cambodian national origin. Mr. Xieng first came to the United States in 1974, when he was sent here from Cambodia for "advanced military training".

When the Cambodian government fell in 1975, Mr. Xieng remained in the United States. After working at several jobs around the country, Mr. Xieng began his employment with Peoples National Bank of Washington (Bank) in 1979. In 1981, Mr. Xieng participated in a management training program the Bank offered for women and minorities. In August 1982, after completing the Bank's management training program, Mr. Xieng was given the position of "loan coordinator".

In performance appraisals completed by Mr. Xieng's supervisors in 1980, 1983, 1984, and 1985, Mr. Xieng was rated "capable of dealing effectively with customers", and each supervisor indicated that Mr. Xieng was presently qualified for promotion. Each appraisal after 1980 referred to communication skills as an area for improvement to maximize his possibilities for future advancement, but even with these suggestions, all but the 1982 appraisal were essentially positive and complimentary. Despite these positive appraisals and the numerous applications submitted by Mr. Xieng, he never received any of the promotions for which he applied. Even after he had performed as a credit authorizer on a nearly full-time basis for several months, he was not given a promotion to that position.

Finally, on November 18, 1986, Mr. Xieng filed a complaint for employment discrimination against the Bank, alleging that the Bank's failure to promote him constituted national origin discrimination. Mr. Xieng continued his employment with the Bank until he went on full disability leave in August 1987. At that time, he became eligible for disability payments under a disability insurance policy paid for by his employer. Mr. Xieng accepted a $20,000 lump sum settlement from the insurer.

Following the bench trial, the trial court found that Mr. Xieng was qualified for many of the promotions he applied for, that his accent would not have materially interfered with his job performance in the positions for which he applied, and that the Bank's failure to promote him because of his accent constituted national origin discrimination. The trial court's award of $388,982.71 included an award of 3 years of back pay and a costs award which included expert witness fees. The trial court did not offset the disability payments made to Mr. Xieng against the judgment. The Court of Appeals upheld all challenged findings of fact and affirmed all elements of the trial court's judgment.

Before considering the four issues described above, we clarify why there are no issues of fact before the court. In its appeal to the Court of Appeals, all of the Bank's 14 assignments of error were to findings of fact. The Court of Appeals held that all challenged findings of fact were supported by substantial evidence. In its petition for review, the Bank did not challenge the findings of fact. Rather it presented the primary issue as solely one of law, contending that it was entitled to a good faith belief defense. Issues not raised in a petition for review are not considered. RAP 13.7(b) provides in part: "If the Supreme Court accepts review of a Court of Appeals decision, the Supreme Court will review only the questions raised in ... the petition for review and the answer, unless the Supreme Court orders otherwise ...". See Wood v. Postelthwaite, 82 Wash.2d 387, 510 P.2d 1109 (1973).

Thus, the following are established facts: (1) that defendant's reason for not promoting plaintiff was because of his "foreign" accent, (2) that plaintiff's accent did not interfere materially with his job performance, and (3) that plaintiff's accent would not have interfered materially with his job performance if he had been promoted to the position for which the court also found he was qualified.


Turning to the merits of the primary issue--the good faith belief defense--the analysis must begin with the criteria for establishing a claim of employment discrimination under RCW 49.60.180(3). In defining discriminatory employment practices, RCW 49.60.180 provides in part:

It is an unfair practice for any employer:


(3) To discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, race, creed, color, national origin....

Recognizing that this provision lacks specific criteria for proving a discrimination claim, we have looked to cases interpreting equivalent federal laws. E.g., Allison v. Housing Auth., 118 Wash.2d 79, 88, 821 P.2d 34 (1991) (retaliatory discharge); Grimwood v. University of Puget Sound, Inc., 110 Wash.2d 355, 356, 753 P.2d 517 (1988) (age discrimination); Oliver v. Pacific Northwest Bell Tel. Co., 106 Wash.2d 675, 678, 724 P.2d 1003 (1986) (race discrimination); Dean v. Municipality of Metro. Seattle, 104 Wash.2d 627, 636, 708 P.2d 393 (1985) (handicap discrimination). As we explained in Oliver, "RCW 49.60 is patterned after Title 7 of the Civil Rights Act of 1964.... Consequently, decisions interpreting the federal act are persuasive authority for the construction of RCW 49.60." Oliver, 106 Wash.2d at 678, 724 P.2d 1003. For the same reason, federal case law is relevant in a case involving a claim of national origin discrimination.

Defendant contends that rejection of the good faith belief standard as a complete defense is contrary to our holdings in Grimwood v. University of Puget Sound, Inc., supra, Baldwin v. Sisters of Providence in Wash., Inc., 112 Wash.2d 127, 769 P.2d 298 (1989), and Gaglidari v. Denny's Restaurants, Inc., 117 Wash.2d 426, 815 P.2d 1362 (1991). As discussed hereafter, Baldwin and Gaglidari are not employment discrimination cases based on the statute, but rather involved employment termination under an employee handbook or manual. Defendant further argues that unless there is a complete defense of good faith belief, an employer must "prove absolutely" that the employee's accent would have interfered materially with job performance. Petition for Review, at 9. This, it is argued, shifts the burden of proof to the employer contrary to the holding in Grimwood, 110 Wash.2d at 363, 753 P.2d 517, that the burden of persuasion remains at all times upon the plaintiff. This necessitates an analysis of burdens of production and persuasion.

We have consistently utilized the burden allocation scheme developed by the United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). E.g., Grimwood, 110 Wash.2d at 361-62, 753 P.2d 517.

Once a plaintiff has made out a prima facie case, the employer must articulate a legitimate, nondiscriminatory reason for termination. The employer's burden at this stage is not one of persuasion, but rather a burden of production. To go forward, the employer need only articulate reasons sufficient to meet the prima facie case. Once the employer fulfills [its] burden of production ... the plaintiff must...

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