Opinion
No. 60895-9-I.
November 10, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 05-2-11244-0, Ronald L. Castleberry, J., entered October 26, 2007.
Affirmed by unpublished opinion per Grosse, J., concurred in by Becker and Appelwick, JJ.
UNPUBLISHED OPINION.
In order to survive a motion for summary judgment, a plaintiff in an employment discrimination action must first establish a prima facie case. Merely showing that at the time of dismissal the plaintiff was over 40 years of age, had been performing his or her duties satisfactorily, and that the employer still needs those duties performed is insufficient. Some indicia of actual discriminatory intent by the employer are required. The plaintiff having failed to meet this burden, summary judgment dismissal was proper. We affirm.
FACTS
Pamela Dixon was employed by the City of Everett from December 1988 to April 2004. Dixon was 51 years of age when she was involuntarily dismissed from her job as Volunteer Coordinator for the City of Everett's Parks Department. Dixon's work duties primarily involved the recruitment and coordination of Parks Department volunteers. Dixon also assisted in the marketing and promotion of Parks Department activities generally.
Anticipating a major budget shortfall in 2005, the City laid off approximately 24 employees in mid-2004, including six employees from the Parks Department. The City contends that the dismissals (which included Dixon's) were necessary due to budgetary constraints and were not made on the basis of performance. Before determining which positions to eliminate, the City considered what would have the least impact on public services, giving priority to maintaining jobs related to public safety, maintenance, and sanitation.
After a hearing, the trial court granted the City of Everett summary judgment on all claims. Dixon timely appeals.
Dixon's complaint alleged age discrimination, retaliatory discharge, and discrimination based on disability but only the dismissal of her age discrimination claim was appealed.
ANALYSIS
Dixon asserts her dismissal from the Parks Department violated both federal and Washington employment law. Under either, Dixon bears the initial burden of establishing a prima facie case. Summary judgment for a defendant employer is proper when a plaintiff has failed to meet their initial burden.
Chapter 49.60 RCW (Washington Law Against Discrimination (WLAD)); 29 U.S.C. § 621 (Age Discrimination in Employment Act of 1967 (ADEA)).
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
Here, to establish a prima facie case of age discrimination in the context of a legitimate workforce reduction, Dixon must show that (1) she was over the age of 40, (2) she had been performing her job satisfactorily, (3) she was involuntarily terminated from employment, and (4) that an inference exists that her employer discriminated against her on the basis of her age. This is not a rigid test, but rather a means to discern whether age was a factor in Dixon's dismissal — the ultimate issue in the case. The City contends that Dixon has not made out a prima facie case because she cannot establish the fourth element. We agree.
See Kuyper v. State, Dep't of Wildlife, 79 Wn. App. 732, 904 P.2d 793 (1995); Grimwood v. University of Puget Sound, 110 Wn.2d 355, 753 P.2d 517 (1988); Cluff v. CMX Corp., Inc., 84 Wn. App. 634, 929 P.2d 1136 (1997).
Dixon has failed to present evidence to support an inference that the City's dismissal of Dixon was substantially motivated by her age (51). Such an inference may be established through circumstantial, statistical, or direct evidence but mere speculation will not suffice. Dixon cites several federal cases for the proposition that, in the context of a workforce reduction, the inference exists where the employer had a continuing need for the discharged employee's skills and that their work duties continued to be performed after the dismissal. But, no Washington court has ever gone so far. Further, Dixon's reliance on these federal cases is misplaced as they involve situations where the discharged employee was essentially replaced, even though their replacement may sometimes have been by another employee from within the company rather than a new hire from outside the company. Washington courts have held that evidence that some of the discharged employee's duties were assumed by remaining employees is insufficient to support an inference of discriminatory intent.
Hatfield v. Columbia Fed. Sav. Bank, 57 Wn. App. 876, 882, 790 P.2d 1258 (1990), overruled on other grounds by Burnside v. Simpson Paper Co., 123 Wn.2d 93, 864 P.2d 937 (1994).
E.g. Coleman v. Quaker Oats Co., 232 F.3d 1271 (9th Cir. 2000); Rose v. Wells Fargo Co., 902 F.2d 1417, 1421 (9th Cir. 1990).
See Hatfield, 57 Wn. App. at 881.
The primary evidence Dixon relies on to establish this inference is Jonna Hauser's declaration. Hauser, then 35 years of age, had been a Parks Department employee since 1995. Soon after the layoffs in 2004, she was notified by her superiors that she would be assuming responsibility for overseeing the Parks Department volunteer program, including managing the volunteer database. Hauser retained her already existing work duties and responsibilities as well. Hauser's declaration further states that the volunteer program was "never eliminated, or even meaningfully scaled down."
Hauser resigned in April 2007.
The City contends that up to six remaining employees absorbed Dixon's duties and associated responsibilities after her dismissal. Regardless, it is ultimately immaterial how many remaining employees were assigned Dixon's duties (and whether the workload associated with those duties had actually decreased) even though these factual matters remain subject to dispute. No new person was hired from outside or even transferred from within to fulfill those same duties as previously performed by Dixon.
Even assuming arguendo that all of Dixon's duties and associated level of workload continued to exist and were assigned solely to Hauser — no inference of discriminatory intent can be drawn. The responsibilities were merely consolidated in one person, Hauser, but this does not make Hauser Dixon's replacement as Hauser retained her same work duties from prior to the 2004 dismissals, complaining in her declaration that she was "unable to perform [her] regular duties as a Project Coordinator during the volunteer season of 2004 due to the drastically increased workload [from] assuming Pam Dixon's responsibilities." It is to be expected after a workforce reduction that those employees remaining after layoffs are burdened with additional duties and heavier workloads. Such consolidation of work duties and increased workloads do not, however, give rise to an inference of discrimination.
Six employees were involuntarily dismissed by the City's Parks Department as part of the workforce reduction in 2004. Their ages were 38, 42, 45, 51 (Dixon), 56, and 57 at the time of their dismissal. While statistical evidence may be used to bolster an inference of discrimination, it is insufficient to establish one.
See Nichols v. Southern Illinois University-Edwardsville, 510 F.3d 772 (7th Cir. 2007); Hatfield, 57 Wn. App. at 881.
The trial court is affirmed.