By Harold S. Berman J.D.
A 57-year old woman fired by a utility company following her manager’s history of allegedly discriminatory and offensive behavior could proceed with her gender discrimination claim under the Washington Law Against Discrimination, the Washington Supreme Court ruled. The state high court reversed the lower court’s grant of summary judgment on her sex discrimination claim, finding it was genuinely disputed whether she was fired for insubordination or because she was a woman. The court affirmed the dismissal of her age discrimination claim, however, because she offered almost no evidence to support it. The court also reversed on the issue of whether her termination violated the employer’s corrective action policy. The policy was sufficiently ambiguous to put in dispute whether the employee was at-will, or whether the policy promised for-cause discharge protections (Mikkelsen v. Public Utility District No. 1 of Kittitas County, October 19, 2017, per curiam).
Only female employee. The employee, a 57-year old woman, had worked for the utility for 27 years and was the only female in a three-member management team overseen by the general manager. In 2010, the utility hired a new general manager. Although she worked well with the new general manager at first, the relationship deteriorated as the employee bristled under what she perceived to be his dictatorial management style. The employee also alleged that he was belligerent toward her and would undermine her authority, which she believed was partly due to gender bias. The manager often talked over her in group meetings, denigrated her in front of coworkers, and regularly disregarded her input, and accepted criticism from male employees but not from her. The male members of the management team did not experience this treatment.
Employee excluded. In December 2010, the manager began to exclude the employee from communications, discussing management issues by email only with the male management team members, and holding some management meetings without her. Although the manager had previously asked the employee to serve as acting manager when he was away, he now asked only the male team members to fill that role. The manager also frequently referred to women using casual terms such as “girls,” “gals,” and “ladies,” but he did not do so with men, and he would regularly rearrange his genitals in her presence (but not in front of male employees).
Board intervention. In March 2011, the employee met with the general manager to address their communication breakdown and his alleged gender bias. He promised to improve his behavior, but the employee claimed he did not do so. By July 2011, communications between the two largely had ceased. The president of the utility’s board became aware of the issue, and asked the employee what the board could do. She suggested conducting an anonymous survey to see if other employees shared her concerns, and the president asked the employee to create the survey. The board delayed action on the survey until the manager returned from vacation.
Termination. When the manager returned and learned of the survey, he fired the employee, providing her with no reason for the termination. The employee’s personnel file contained no negative disciplinary history. Although the manager wrote to the board that the employee was combative and insubordinate, the utility’s response to her application for unemployment benefits stated that she was an at-will employee and “was terminated without cause.”
Lawsuit. The employee sued the utility, the board, and the manager, alleging she was terminated in violation of the utility’s corrective action policy. She also asserted claims under the Washington Law Against Discrimination (WLAD), contending that her age and gender were substantial factors in her dismissal. The state trial court granted summary judgment for the employer, dismissing all claims, and the state court of appeals affirmed. The employee appealed to the Washington Supreme Court.
No “replacement” requirement. The state high court first emphasized that under the McDonnell Douglas framework, which applied here, “a plaintiff need not prove that she was replaced by a member outside her protected class in order to establish a prima facie case of discrimination.” Such clarification was warranted, the court said, because its review of federal authority revealed that this replacement requirement “may have been erroneously included in Washington courts’ application of the McDonnell Douglas framework.”
Sex discrimination. The supreme court reversed summary judgment on her sex discrimination claim. The utility had articulated a legitimate, nondiscriminatory reason for firing the employee—the manager wrote a memo to the board detailing her alleged history of disruptive and insubordinate behavior, and the employee’s testimony implied they had a dysfunctional professional relationship. However, the employee’s performance had been exemplary for 27 years, and the facts as alleged created a genuine dispute as to whether the stated reason for discharge was pretextual. A factfinder needed to determine if the manager fired the employee because she was a woman or simply because their personalities clashed.
Age discrimination. Summary judgment was affirmed on the employee’s age discrimination claim because the employee presented almost no evidence of age discrimination. Although there was evidence the manager had made possibly disparaging remarks about older employees, there was no evidence he treated older employees differently, or that age was a factor in his termination decision.
Corrective action policy. The court also revived her wrongful discharge claim arising from the utility’s alleged breach of its corrective action policy. The policy was ambiguous, and so presented a factual issue whether it provided a promise of specific treatment. The policy gave the utility discretion to implement various disciplinary actions, but emphasized that employees should be treated fairly. It contained many provisions suggesting the utility had broad discretion to implement disciplinary procedures, but also included provisions that seemed to promise fair treatment and arguably establish a for-cause requirement for discharge. This ambiguity allowed the policy to be read as modifying the employee’s at-will status. Because the question of whether the policy constituted a promise of specific treatment was one of fact, summary judgment was inappropriately granted.
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