By: Erica Shelley Nelson & Sarah Burke
In Bu
sey v. Richland School District, the Eastern District of Washington found that a reasonable jury could conclude that a Superintendent had been wrongfully discriminated against for his extramarital affair with a para-educator. In his complaint, the Superintendent alleged the district had violated the Washington Law Against Discrimination (“WLAD”), in terminating him because of his extramarital affair. The district court found that because the Superintendent had provided direct evidence of this claim and a reasonable jury could find that the school district’s proffered reasons were pretextual, the claim could survive summary judgment and move forward.
James Busey began working as the Superintendent for the Richland School District in July of 2010. Sometime in 2011, Busey and a para-educator began an extramarital affair, frequently meeting off-campus to engage in sexual intercourse in the para-educators car. Busey used the school district’s email and telephone systems to arrange these meetings. By November, 2012, the school district became aware of the affair and began an investigation into the matter, which ultimately led to Busey’s termination.
Under the WLAD, it is an unfair practice for any employer to discharge or bar any person from employment because of marital status. To prevail under the statute, the employee must show that their marital status was a substantial factor in the discharge. Here, the district court found that Busey had provided direct evidence of the school district’s intention to discriminate through the termination letter that specifically referenced the “extramarital affair” and further cited to Busey’s conduct “while [he] was married.”
The school district argued that Busey would have been discharged regardless of his marital status because of his improper use of his school email and cell phone and the negative impact his conduct would have on his ability to do his job. However, the district court found that while these arguments may be persuasive, it was up to a jury to decide.
In summary, though the school district maintained that they would have terminated Busey regardless of his marital status, the Court found that a reasonable jury could find Busey’s marital status was a substantial factor motivating his discharge and allowed his claim of marital discrimination to go forward.
This is a very interesting case that raises the less common claim of marital status discrimination. The Court seemed to take issue with the fact that the school district essentially raised the bar in finding that the affair was more egregious in light of the fact Busey was married. The Court’s position was supported by the school district’s repeated reference to Busey’s marital status and the fact he had an “extramarital” affair during the investigation. Consequently, had Busey not been married, then the school district may have issued lesser discipline for the affair and his misuse of his work email and cell phone. It is important to remember that this is a decision on summary judgment, therefore, a jury could very well agree with the school district at trial and find that the school district would have terminated Busey even if he was not married.
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