By Jordan L. Jones
In Currier v. Northland Servs., Inc., the Court of Appeals of Washington, Division One (court) upheld a trial court decision that Northland Services Inc. (NSI) was liable for the retaliatory discharge of an independent contractor under the Washington Law Against Discrimination (WLAD). The court found that “[b]ecuase the WLAD applies to this case and substantial evidence supports the trial court’s findings and conclusions that retaliation was a substantial factor in NSI’s termination of . . . [the contractor,] we affirm the trial court’s judgment.”
In this matter, the independent contractor, a truck driver, overheard another truck driver “yell across the yard to a Latino driver . . . ‘[h]ey, f**ing Mexican, you know why you have to go to Portland and I don’t? Because f**ing Mexicans are good at crossing borders.’” The truck driver who overheard the racial slurs reported the incident to NSI’s quality assurance manager. Two days after reporting the conduct of the other truck driver, NSI terminated his employment. He subsequently filed suit against NSI for retaliation under the WLAD, RCW 49.60.210 and .030.
The court noted that the WLAD was enacted by the state legislature to “eliminate and prevent discrimination.” “The WLAD . . . extends broad protections to ‘any person’ engaging in statutorily protected activity from retaliation by an employer or ‘other person.’” The court noted that to establish a prima facie retaliation case under the WLAD, the plaintiff must show that:
(1) he or she engaged in statutorily protected activity, (2) he or she suffered an adverse employment action, and (3) there was a causal link between his or her activity and the other person’s adverse action . . . . When a person reasonably believes he or she is opposing discriminatory practices, RCW 49.60.210(1) protects that person whether or not the practice is actually discriminatory. A plaintiff proves causation by showing that retaliation was a substantial factor motivating the adverse employment action.
NSI contended that “(1) as an independent contractor, [the contractor was] . . . not an “employee” within the meaning of the statute and (2) because he did not oppose a specific employment practice of his employer, he did not engage in statutorily protected activity.” NSI also argued that “it terminated . . . [the contractor’s] contract because of poor performance and disruptive behavior . . . [and therefore did not fire the contractor for discriminatory behavior].”
The court noted that the Washington Supreme Court held in Marquis v. City of Spokane that “under the broad protection [of the WLAD] . . . an independent contractor may bring an action for discrimination in the making or performance of a contract for personal services where the alleged discrimination is based on sex, race, creed, color, national origin or disability.” The court also stated that “Washington cases have . . . held that a plaintiff need not prove the conduct opposed of was in fact discriminatory but need show only that he or she reasonably believe it was discriminatory.” The court also stated that it did “not find credible the claim that . . . [the contractor’s complaint to NSI] had no effect on the decision to terminate . . . [the contractor’s] contract.” “Substantial evidence supports the court’s conclusion that . . . [the contractor’s] complaint ‘tipped the scales toward termination.’” The court held that:
Because substantial evidence supports the trial court’s findings of fact regarding liability and damages and those findings support the court’s conclusions of law, we affirm and award . . . [the contractor] his costs and reasonable attorney fees on appeal.
Editor’s Note (Erica Shelley Nelson): Based on the reported facts, most courts would have reached this result. Courts in retaliation cases often place great weight on the timing between the protected activity and the adverse employment action. Here, the timing, two days between the reporting of the racial slurs and the termination, was compelling evidence of a retaliatory intent on the part of NSI. If NSI had more compelling facts to show that the truck driver was terminated for reasons unrelated to the protected activity, then the case may have been decided differently. Under this set of facts, NSI had an understandably difficult time defending its actions.
