By Erica Shelley Nelson and Jordan L. Jones
In Scrivener v. Clark Coll., the Washington Supreme Court reversed the Court of Appeals’ ruling granting summary judgment to Clark College on an instructor’s age discrimination claim under Washington’s Law Against Discrimination (WLAD). The Court held that the 55-year-old Plaintiff, who had applied for a tenure-track teaching position at the college, had:
[P]resented sufficient evidence to create a genuine issue of material fact either (1) that Clark College’s articulated reason [for not hiring her] was a pretext or (2) that although the reason is legitimate, age was a substantial motivating factor in Clark College’s decision not to hire . . . [the Plaintiff].
In 1994, the Plaintiff began teaching as an adjunct instructor with the Defendant and was hired full-time in 1999 as a temporary (i.e., her contract was renewed yearly) English instructor. In 2005, the 55-year-old Plaintiff applied for a tenure-track teaching position with the Defendant. The Plaintiff was subsequently not selected and she filed suit against the Defendant alleging unlawful age discrimination in violation of WLAD.
The Court noted that the purpose of WLAD “is to eliminate and prevent discrimination in the workplace.” The Court stated that under “the WLAD, it is an unfair practice for an employer to refuse to hire any person on the basis of age if the person is within the protected class of individuals between the ages of 40 and 70.”
The Court stated that “summary judgment to an employer is seldom appropriate in the WLAD cases because of the difficulty of proving a discriminatory motivation.” The Court stated that “[t]o overcome summary judgment, a plaintiff only needs to show that a reasonable jury could find that the [P]laintiff’s protected trait was a substantial factor motivating the employer’s adverse actions.”
“This is a burden of production, not persuasion, and may be proved through direct or circumstantial evidence.” Where a plaintiff lacks direct evidence, Washington courts use the burden-shifting analysis articulated in McDonnell Douglas, 411 U.S. 792, to determine the proper order and nature of proof for summary judgment.
The Court noted that under the first prong of the McDonnell Douglas analysis, “a plaintiff bears the initial burden of establishing a prima facie case of discrimination, which creates a presumption of discrimination.” If a plaintiff satisfies this first prong, “the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action.” If the Defendant meets this burden, the third prong of the McDonnell Douglas analysis “requires the Plaintiff to produce sufficient evidence that Defendant’s alleged nondiscriminatory reason for the employment action was a pretext.”
In this case, the Court clarifies what is required in the third prong of the McDonnell Douglas analysis.
An employee may satisfy the pretext prong by offering sufficient evidence to create a genuine issue of material fact either (1) that the defendant’s reason is pretextual or (2) that although the employer’s stated reason is legitimate, discrimination nevertheless was a substantial factor motivating the employer. An employee does not need to disprove each of the employer’s articulated reasons to satisfy the pretext burden of production. Our case law clearly establishes that it is the plaintiff’s burden at trial to prove that discrimination was a substantial factor in an adverse employment action, not the only motivating factor.
The Court found that the Plaintiff had “fulfilled all the minimum requirements and the desired qualifications . . . [for the tenure-track teaching position] while neither of the hired candidates fulfilled all of the desired qualifications.” The Court also found that the Defendant’s President had expressed “a desire to hire individuals not within a protected class (people under 40) . . . [and that the] President . . . [had] filled faculty positons with more people under 40 than people in the protected class.”
The Court held that the Plaintiff had:
[P]resented sufficient evidence to create a genuine issue of material fact either (1) that Clark College’s articulated reason was a pretext or (2) that although the reason is legitimate, age was a motivating factor in Clark College’s decision not to hire . . . [the Plaintiff].
The Court reversed the Court of Appeals’ order granting summary judgment to the Defendant and remanded to the Trial Court.
The Court made the right decision here. The burden of overcoming summary judgment on a WLAD claim in state court is not onerous. Washington state courts are generally more likely to allow a plaintiff alleging state law discrimination claims to have his or her day in court, especially in light of established precedent that only requires a plaintiff to show that discrimination was a “substantial factor,” not the only factor for purposes of establishing unlawful discrimination. Here, the Plaintiff clearly raised genuine issues of material to show that age was a motivating factor in the Defendant’s decision not to hire her for the tenured position.
