Xieng v. Peoples Nat. Bank of Washington

• Decision Date: 20 December 1991
• Docket Number: No. 27067-2-I,27067-2-I
• Citation: 821 P.2d 520,63 Wn.App. 572
• Court: Washington Court of Appeals
• Parties: , 57 Fair Empl.Prac.Cas. (BNA) 1077, 2 A.D. Cases 78 Phanna K. XIENG and Bathou Xieng, husband and wife, Respondents, v. PEOPLES NATIONAL BANK OF WASHINGTON, Appellant.

Page 572

63 Wn.App. 572

821 P.2d 520, 57 Fair Empl.Prac.Cas. (BNA) 1077,

2 A.D. Cases 78

Phanna K. XIENG and Bathou Xieng, husband and wife, Respondents, v. PEOPLES NATIONAL BANK OF WASHINGTON, Appellant.

No. 27067-2-I.

Court of Appeals of Washington Division 1.

Dec. 20, 1991.

Miller, Nash, Wiener, Hager & Carlsen, James R. Dickens, Seattle, for appellant.

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

COLEMAN, Judge.

Peoples National Bank of Washington appeals the trial court's award of $388,982.71 in damages to Phanna K. Xieng, claiming that the trial court applied an improper legal standard in finding they had discriminated against Xieng, erred in finding their discrimination had caused Xieng's disability, erred in awarding damages, and erred in awarding fees and costs. Xieng cross-appeals claiming that the trial court erred in failing to apply a multiplier to his contingency fee award. Xieng also requests attorney fees on appeal. We affirm and award respondent attorney fees.

Phanna K. Xieng was born in Cambodia in 1949, the son of well educated, politically prominent parents. He was educated in Cambodia, receiving a Bachelor of Arts degree from Battambang University in 1969, and continued his studies at the Sorbonne in Paris and at the National Institute of Public Affairs and the National Institute of Law in Phnom Penh. As a Cambodian naval officer, Xieng also received training at the French Naval School in Brest, completed a 6-month English language course, and was sent to the United States for advanced military training. Xieng's American military training was conducted in English, prepared him to be an air and sea rescue pilot, and required him to communicate clearly over military radio.

While Xieng was stationed in the United States, the Cambodian government was overthrown by the Khmer Rouge, Xieng's parents and immediate family were killed, and Xieng was released from military training. Unable to return to Cambodia, Xieng travelled, worked, and studied in various places across the United States. Xieng attended classes conducted in English at the Lewis International School in Washington, D.C., where he received a diploma in hotel and restaurant management in 1976; later he worked as a customer service representative for American Airlines in Los Angeles, communicating solely in English with airline customers. Finally, he worked as a manager for Skipper's Fish and Chowder House in Kirkland, Washington where he had frequent customer contact.

In 1979 Xieng began working as a vault and payroll teller for Peoples National Bank, hoping to capitalize on his finance and administration background. Xieng was selected to participate in a management training program for minorities which involved almost constant customer contact, and in 1981 Xieng was awarded certificates for successful completion of the program. ¹ At the Bank's suggestion, Xieng received English language tutoring, and his tutor viewed Xieng's ability to communicate in English as "dramatically improved." In addition, Xieng successfully passed an American Institute of Banking course in Effective English.

In 1982 Xieng was transferred to a "grade 9" loan coordinator position with the Bank's consumer credit division, a job requiring telephone contact with Bank agents and customers 1 1/2 to 2 hours daily. While working as a loan coordinator, Xieng received positive performance appraisals. Xieng's supervisors noted that Xieng's English communication skills were an area for future improvement, but they did not suggest that Xieng's Cambodian accent interfered materially with his job performance. In fact, several supervisors recommended promotion. ²

Although the facts were controverted, the trial court found that during most of 1986 Xieng filled in virtually full time as a grade 11 credit authorizer but continued to be paid at the lower level of a grade 9 coordinator. Jeffrey Zabel, a senior lending officer, wrote that Xieng had "demonstrated very accurate and reliable completion of his normal job duties," and Wanda Judd, Xieng's supervisor assured Xieng in the presence of a third person, Mary Lou Turner, that he would "automatically" be promoted to the next credit authorizer position which became available. However, the next promotion went to Gail Mathison, a credit card collector with no previous lending experience.

In spite of his positive evaluations, Xieng's frequent applications for advancement were denied. On one occasion, managerial level supervisor Jerome Klavuhn threw Xieng's application for a promotion into his wastebasket as soon as Xieng left his office. Later, Bank officer Ken Taylor told Xieng he would be promoted only if he could persuade everyone in Seattle's Cambodian community to become Bank customers. After Xieng explained that he could not guarantee such a thing, his application for promotion was denied. Managerial level employee Linda Sincoff told Xieng he was not being promoted because he could not speak "American."

Beginning in 1985 after several years of being passed over for promotions for which he was qualified, Xieng began suffering severe emotional distress and depression which suppressed his auto-immune system and made him susceptible to chronic active hepatitis, Sjogren's Syndrome, and the Epstein-Barr virus. His emotional and physical problems led to absenteeism, causing the Bank to take disciplinary action against him. By August 1987 Xieng had become fully disabled and was unable to work.

Xieng filed a complaint under RCW 49.60.180 in November 1986 alleging that by failing to promote him, the Bank had discriminated against him on the basis of his Cambodian national origin. The Bank took the position that Xieng's complaint was "frivolous, unreasonable, groundless, and ... brought in bad faith." Following a bench trial, the trial court found that the Bank had discriminated against Xieng, that their discrimination was the cause of Xieng's disability, and that Xieng was entitled to damages, attorney fees, and costs. The Bank appeals. Xieng cross-appeals from the trial court's failure to apply a multiplier to the attorney fees awarded at trial and requests attorney fees on appeal.

We initially consider whether the trial court applied an improper legal standard in finding that the Bank had committed national origin discrimination against Phanna K. Xieng.

RCW 49.60.180(3) prohibits national origin discrimination. Because our courts have yet to address a national origin discrimination claim based on accent discrimination, we look to the relevant federal cases and regulations. See Fahn v. Cowlitz Cy., 93 Wash.2d 368, 375-76, 610 P.2d 857, 621 P.2d 1293 (1980).

National origin discrimination includes discrimination against an employee because he shares the "linguistic characteristics of a national origin group." 29 C.F.R. § 1606.1 (1991). A plaintiff makes out a prima facie case of national origin discrimination by showing:

(1) that he has an identifiable national origin; (2) that he applied and was qualified for a job for which the employer was seeking applicants; (3) that he was rejected despite his qualifications; and (4) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.

Fragante v. City and Cy. of Honolulu, 888 F.2d 591, 595 (9th Cir.1989), cert. denied, 494 U.S. 1081, 110 S.Ct. 1811, 108 L.Ed.2d 942 (1990). After the plaintiff establishes a prima facie case, the burden shifts to the employer to produce evidence that the employee was rejected for a "legitimate, nondiscriminatory reason." Texas Dep't of Comm'ty Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 1094, 67 L.Ed.2d 207 (1981). If "the employer presents legitimate reasons for plaintiff's non-selection, the burden shifts to the plaintiff" to show that the proffered reason was a pretext. Fragante, at 595. Accord, Curtis v. Clark, 29 Wash.App. 967, 969, 632 P.2d 58 (1981) (quoting Ellingson v. Spokane Mortgage Co., 19 Wash.App. 48, 54-55, 573 P.2d 389 (1978) (discussing the shifting burdens of proof in an action brought under RCW 49.60)).

In Fragante, a job applicant with a heavy Filipino accent was denied employment because of his deficient oral communication skills. Fragante, at 593-94. Although the Ninth Circuit found the job applicant's accent to be a legitimate, nondiscriminatory reason for his nonselection, the court noted the heavy burden employers must meet in accent discrimination cases. The court stated that because employers could easily use an individual's foreign accent as a pretext for national origin discrimination, courts must take a "very searching look" at adverse employment decisions based upon claims of deficient oral communication skills. Fragante, at 596. The Ninth Circuit concluded that "[a]n adverse employment decision may be predicated upon an individual's accent when--but only when--it interferes materially with job performance." (Italics ours.) Fragante, at 596. Thus, under Fragante, employers may claim that an employee's foreign accent is a legitimate reason for nonpromotion only if that accent interferes materially with job performance.

The Bank asserts that this court should disregard the Fragante standard and adopt a "good faith belief" standard. Under this proposed standard, denial of promotion because of a foreign accent would not be national origin discrimination if:

(1) the ability to ... speak English is a job requirement; (2) the employee has documented difficulties with the English language; and (3) the employer has a good faith belief that ... lack of communication skills would materially interfere with job performance.

(Italics ours.) Brief of Appellant at 26-27. The Bank supports adoption of this new standard by citing to three cases, but each case is factually distinguishable and uses a standard similar to the "legitimate nondiscriminatory reason" standard of...