Opinion
No. 35941-3-II.
January 23, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 06-2-09443-9, Serjio Armijo, J., entered January 12, 2007.
Affirmed by unpublished opinion per Van Deren, A.C.J., concurred in by Armstrong and Quinn-Brintall, JJ.
Linda J. Evans appeals the trial court's order dismissing her claims against the State of Washington for employment discrimination and retaliation under the law against discrimination, chapter 49.60 RCW. Evans argues that material factual issues remain in dispute, precluding summary judgment. Finding no error, we affirm.
FACTS
The Department of Social and Health Services (DSHS) hired Evans in December 1989. In 1996, she became Region 5's acting regional administrator for the community services division.
DSHS divides the state into six service regions and Region 5 is composed of Pierce and Kitsap Counties. See https://fortress.wa.gov/dshs/f2ws03esaapps/onlinecso/findservice.asp (last visited 1/18/2008).
In March 2002, she started a church ministry known as The Upper Room Fellowship (TURF) and acted as its pastor. Evans incorporated TURF as a nonprofit corporation in 2004, naming herself as president. TURF, thereafter, operated the Tacoma/Pierce County Teen Housing Program, which provided housing for low-income teen parents and their children. Evans also owned several Pierce County properties, including a hotel she owned jointly with TURF.
On June 5, 2003, the Washington State Auditor's Office received a whistleblower report alleging "improper governmental action" by Evans. Clerk's Papers (CP) at 145. Concurrently, DSHS received other complaints that it referred to its Division of Access and Equal Opportunity (DAEO). The DAEO investigation addressed allegations that Evans had used her management position to coerce employees into joining or participating in her church and that she had coerced subordinate personnel into providing preferential treatment to her church members.
In September 2003, Evans signed a performance evaluation stating, among other things, that she had "been working through a difficult period regarding personal attacks on her management. . . . A number of anonymous attacks have challenged [her] hiring practices and her religious affiliation. The allegations have been investigated and are without substance." CP at 359. The evaluation mentioned that her "recent experience with some trying personnel issues [had allowed] her a learning opportunity [in human resource management]." CP at 362. The evaluation also stated that her supervisor had "counseled [her] to not get distracted by personnel issues; rather she should concentrate on improving the performance of her offices and on the development of her managers" and that she had "responded very positively to that counsel." CP at 363. The DAEO investigator concluded that the allegations against Evans "could not be substantiated"; but the auditor's investigation continued into 2004. CP at 352.
In early 2004, Deborah Bingaman (now Deborah Marley), DSHS's Assistant Secretary of Economic Services Administration, placed Evans on home assignment pending the outcome of the auditor's investigation. Bingaman's letter to Evans stated that the "reassignment [was] intended to protect [Evans] and [DSHS]" from liability. CP at 237. Bingaman later declared that she was "concerned that [Evans] might retaliate against DSHS employees . . . who were providing information to the [auditor's] investigator." CP at 231. On October 28, 2004, Bingaman sent Evans a letter that (1) informed Evans that DSHS was considering employment action against her "including termination of [her] exempt position as a Regional Administrator," CP at 258, (2) disclosed the allegations that the whistleblower investigation had examined, and (3) scheduled a "name clearing hearing" to afford Evans the opportunity to respond to the allegations before an employment decision was made. CP at 259.
We assume that this was equivalent to a Loudermill hearing. See Cleveland Bd. of Education v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494 (1985).
The auditor's investigation concluded that Evans (1) "used state resources for personal benefit," (2) "used her position . . . for personal benefit and for the benefit of others," (3) removed documents from [DSHS] without authorization, (4) rented her property to employees, and (5) prayed with employees and allowed employees to address her as "pastor" during working hours. CP at 206-209. Evans responded that "no substantial misconduct had occurred, because either the alleged conduct did not occur at all or that it fell well within legal standards of propriety." Br. of Appellant at 12.
DSHS terminated Evans as regional administrator on February 15, 2005. On February 18, she was offered, and accepted, a different position in DSHS's Economic Services Administration. Evans's attorney wrote to DSHS Secretary, Dennis Braddock, asserting that, under WAC 296-126-050(3), Evans was entitled to a "signed written statement" detailing the reasons for the termination. CP at 382. On March 15, 2005, an assistant attorney general responded, stating that WAC 296-126-050 does not apply to exempt employees and that Evans's former job as a regional administrator was an exempt position under RCW 41.06.070 and 41.06.076 and she was, therefore, subject to being terminated without cause. The letter stated that Evans's "exempt appointment was terminated [because] the DSHS Secretary decided to make a staffing change." CP at 384.
Evans resigned from DSHS on September 17, 2005. Her resignation letter stated that "[a]fter much prayer and deep contemplation of my spiritual well being it has become clearly evident that employment with DSHS comes at a great cost. Therefore, . . . it is with much sadness that I have decided to end my career with DSHS." CP at 229. In 2006, Evans filed a complaint for damages against the State, alleging employment discrimination based on her race and religion in violation of former RCW 49.60.180 (2006) and retaliation in violation of RCW 49.60.210(1).
Evans is an African-American of the Christian faith.
Former RCW 49.60.180(2) and (3) (2006) stated in relevant part that:
It is an unfair practice for any employer:
. . . .
[t]o discharge or bar any person from employment. . . . [or to] discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, sexual orientation, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person.
Effective July 22, 2007, the statute has been amended to also prohibit discrimination based on a person's "honorably discharged veteran or military status." Laws of 2007, ch. 187, §§ 9.
RCW 49.60.210(1) states:
It is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter.
The State successfully moved for summary judgment under CR 56, asserting that DSHS's decision to terminate Evans was based on her supervisor's belief that "DSHS needed new leadership in Region 5 and that a change would be in the best interests" of all concerned. CP at 282. The State's motion asserted that DSHS's actions had not been discriminatory and detailed the portions of the auditor's final report and the DSHS whistleblower e-mail summary that was corroborated by Evans's deposition testimony.
At the hearing on the motion, the State argued: [Evans] does not deny that her use of State property to promote her church ran a very real risk of liability for the State in terms of an establishment clause claim. She doesn't deny that a former subordinate employee of hers is, in fact, suing the [S]tate for discrimination, religious discrimination. As you know, religion is a sticky issue in the workplace, Your Honor. An employer can do nothing to discourage the legitimate exercise of religious rights. But an employer cannot also encourage a person's beliefs in the workplace, because that also would run a real risk of liability.
Report of Proceedings (RP) at 4-5.
The reason [Evans] was removed from her job is that her employers lost confidence in her. There's no evidence that the loss of confidence in her was in any way related to her legitimate, lawful exercise of her religious rights in the workplace. She has no right to utilize the State resources, the State fax system, the State long distance system, have subordinate employees promote her personal religious beliefs in the workplace. She admitted it. She said she wouldn't do it. She did it repeatedly. [DSHS] lost confidence in her abilities.
RP at 21. Evans appeals the trial court's dismissal of her claims on summary judgment.
ANALYSIS
I. Standard of Review
We review an order granting summary judgment de novo. Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57, 65, 837 P.2d 618 (1992). In reviewing a summary judgment, "we engage in the same inquiry as the trial court." Clarke v. Office of the Attorney General, 133 Wn. App. 767, 784, 138 P.3d 144 (2006). Summary judgment is proper if, viewing the facts and reasonable inferences most favorably to the non-moving party, no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. CR 56(c); Clarke, 133 Wn. App. at 784-85.
A defendant moving for summary judgment must first show that there are no genuine issues of material fact and may do so by "'pointing out to the ? court — that there is an absence of evidence to support the nonmoving party's case.'" Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225 n. 1, 770 P.2d 182 (1989) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)). "In such a situation, there can be 'no genuine issue as to any material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Young, 112 Wn.2d at 225 (quoting Celotex Corp., 477 U.S. at 322-23) (citation omitted).
Evans, then, had the initial burden of establishing a prima facie case of employment discrimination. Clarke, 133 Wn. App. at 788. And "[t]o overcome an employer's motion for summary judgment, the employee must do more than express an opinion or make conclusory statements. The employee has the burden of establishing specific and material facts to support each element of his or her prima facie case." Hiatt, 120 Wn.2d at 66 (citations omitted). "If the plaintiff cannot establish the material facts to support each element of the prima facie case, the defendant is entitled to judgment as a matter of law." Clarke, 133 Wn. App at 788; see also Hiatt, 120 Wn.2d at 66-67.
If the plaintiff establishes a prima facie case, but no direct evidence of discrimination exists, the Washington Supreme Court has adopted the so-called McDonnell Douglas burden-shifting protocol, as modified by Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000), and articulated in Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 23 P.3d 440 (2001). Once the prima facie case is established, a rebuttable presumption of discrimination arises and the defendant must present evidence that the challenged employment action was taken for legitimate reasons. Hill, 144 Wn.2d at 181.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
Hill involved a CR 50 motion for judgment as a matter of law made at the close of the plaintiff's case in chief. 144 Wn.2d at 178. The issue before the court was "the evidentiary standard that a plaintiff with a chapter 49.60 RCW employment discrimination claim must meet to survive a" CR 50 motion. Hill, 144 Wn.2d at 176. In addressing this issue, the court reviewed the McDonnell Douglas burden-shifting protocol applicable to discrimination cases based on circumstantial evidence. Hill, 144 Wn.2d at 179-87.
If the defendant fails to rebut this presumption, the plaintiff is entitled to judgment as a matter of law. Hill, 144 Wn.2d at 181. If the defendant meets this burden of production, the burden then shifts back to the plaintiff who must show evidence from which a rational fact-finder could conclude that the proffered reason is a pretext for discrimination. Hill, 144 Wn.2d at 185-86 n. 8; Clarke, 133 Wn. App. at 788. If such evidence is shown, the case is then ordinarily sent to trial and the plaintiff has the final burden of persuading the trier of fact that discrimination "was, more likely than not, a substantial factor in the adverse employment action." Hill, 144 Wn.2d at 186-87; Clarke, 133 Wn. App. at 788. But whether a case goes to trial or is decided as a matter of law depends on its particular facts and circumstances, including the "strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for a judgment as a matter of law." Reeves, 530 U.S. at 148-49.
This burden shifting scheme applies to both discrimination and retaliation claims. Milligan v. Thompson, 110 Wn. App. 628, 638, 42 P.3d 418 (2002).
II. Claims
A. Employment Discrimination — Disparate Treatment
Evans asserts that the DSHS treated her in a disparate manner, contrary to former RCW 49.60.180. CP at 297 ("This is a disparate treatment case."). In her complaint, Evans alleged that the DSHS's decision to place her on home assignment and later to remove her as regional administrator and assign her to a lesser position was discriminatory because it was: (1) based on her "creed, i.e. by [sic] an intent to prevent [her] from engaging in lawful expressions, conduct and associations based upon her religious beliefs and practices and those of other employees in her workplace," CP at 5, and (2) "disparate treatment with respect to the terms or conditions of her employment? because other? Caucasian colleagues of substantially equal job stature in substantially similar circumstances were not subjected to the deprivations represented by home assignment status." CP at 6.
To establish a prima facie claim of disparate treatment, an employee must show that (1) the employee belongs to a protected class and (2) the employer treated the employee less favorably in terms or conditions of employment when compared to a similarly situated, nonprotected employee who does substantially the same work. Clarke, 133 Wn. App. at 788-89.
Evans's complaint claimed protected status as an African American and a Christian, but, as the State has consistently argued, Evans did not show, nor attempt to show, that DSHS treated her less favorably than other similarly situated non-protected employees. Evans offered no evidence before the trial court and, on appeal, argues that the State "cites no authority for the proposition that [Evans] must set forth evidence of a 'comparator' employee." Reply Br. of Appellant at 5.
Evans's assertion that State's argument is unsupported is not entirely accurate. The State's appellate brief merely repeats its summary judgment argument where it relied on Washington v. Boeing Co., 105 Wn. App. 1, 16, 19 P.3d 1041 (2000) and McDonnell Douglas, 411 U.S. at 802.
Evans's described her claim for disparate treatment in response to the State's summary judgment motion:
As stated by [DSHS] the real reason for the termination was because of the "turmoil." A jury could reasonably find that the only "turmoil" was that generated by the complaints of a few anonymous disgruntled employees about [Evans's] perfectly legitimate religious associations, beliefs, activities and verbal and written expressions, that management wanted to stop the turmoil, that it decided to accomplish this simply by removing the religion factor from the workplace, and thus that [Evans's] religion was a substantial factor in the termination decision and the real basis for [DSHS's] purported belief about the need for "new leadership."
Material fact issues are in dispute; summary judgment cannot be granted.
CP at 309-10.
Evans also argued in opposition to summary judgment that "[d]isparate treatment claims typically entail a single factual issue — namely, whether illegal intent was a substantial factor in the challenged decision. . . . Initially, the employee must make a prima facie case with evidence that raises an inference of discrimination." CP at 299-300 (citing Hill, 144 Wn.2d at 180-81, 184-85). Although Evans cites Hill, she ignores its requirements. Her argument on appeal suggests that an employer's denial of a discrimination or disparate treatment claim creates a genuine issue of material fact about whether the employer had a legitimate reason for its actions and, thus, bars summary judgment.
But Hill states that the employee plaintiff must first set forth all of the elements of a prima facie case of unlawful discrimination. 144 Wn.2d at 181. And to defeat summary judgment, the employee "must establish specific and material facts to support each element of his or her prima facie claim." Marquis v. City of Spokane, 130 Wn.2d 97, 105, 922 P.2d 43 (1996).
Unless the plaintiff supports the elements of prima facie discrimination or a disparate treatment claim first, we do not engage in the burden-shifting analysis and the rebuttable presumption of prejudice does not arise. The plaintiff's burden is to show a prima facie case, plus, provide evidence sufficient to disbelieve the employer's explanation; only then will a trier of fact be required to decide the ultimate issue. Hill, 144 Wn.2d at 185; Hiatt, 120 Wn.2d at 66.
Evans argues now that she is a member of a protected class based on her religion, but she presented no evidence of disparate treatment. The record does not show that DSHS failed to take similar actions against a similarly situated non-protected coworker. The record, instead, contains Evans's repeated acknowledgement that she has no knowledge of any similarly situated employee receiving disparate treatment. Therefore, despite Evans's bare assertion that material facts are in dispute, her failure to support each element of a prima facie case of disparate treatment "necessarily renders all other facts immaterial." Young, 112 Wn.2d at 225 (quoting Celotex Corp., 477 U.S. at 323).
It appears that Evans meant to assert only religion as a basis for discrimination and not race. Evans's complaint points to race by suggesting her "Caucasian colleagues" were not placed on home assignment. CP at 6. But in oral arguments before the trial court, her counsel responded to the trial court's direct question about whether the basis of her claim was race or religion; that the basis of the discrimination claim was religion. Therefore, Evans appears to have abandoned any claim based on race by the time the summary judgment hearing occurred. And she does not explain how her religion places her in a protected class for purposes of a disparate treatment claim.
Because Evans failed to demonstrate the existence of all elements of a prima facie case of disparate treatment, the trial court did not err when it granted summary judgment to the State on her claim.
B. Retaliation
To show a prima facie case of retaliation under RCW 49.60.210(1) Evans must show that: (1) she opposed an activity forbidden by chapter 49.60 RCW; (2) DSHS took adverse employment action against her; and (3) retaliation was a substantial factor behind the adverse employment action. See, e.g., Allison v. Housing Authority of City of Seattle, 118 Wn.2d 79, 85, 821 P.2d 34 (1991); see also Milligan, 110 Wn.2d App. at 638.
In opposition to the State's summary judgment motion on this claim, Evans stated that:
Based on the facts shown, a jury could rationally find that each of these elements is established: a person's religion and her activities and speech related thereto are clearly protected activity, the actions of home assignment and termination are adverse employment actions since they both involved an elimination of all job responsibilities and the latter a reduction in pay, and that the protected activity was a substantial factor in both decisions.
CP at 310.
Although we agree with Evans that DSHS took adverse employment action in removing her from the regional administrator position, we agree with the State that Evans again fails to state a prima facie claim. Apparently, Evans is suggesting that (1) when she "and other employees . . . [participated in] faith-based speech and associations with each other," she was opposing DSHS Administrative Policy 15.15, Section 3, Part C, prohibiting employees from using state-provided e-mail or Internet for promoting personal religious beliefs; and (2) such a policy is forbidden under chapter 49.60 RCW. Br. of Appellant at 28.
We note that Evans's employment with DSHS was not terminated. Rather, she resigned several months after accepting the subsequent job she was offered when Braddock removed her from the regional administrator position.
The Report of the Whistleblower Investigation quotes this policy in part:
" Department employees must not use state provided Internet access to connect to Internet sites or create, transmit or store electronic messages that contain or promote . . . personal religious beliefs . . . personal business interests, including commercial uses such as advertising or selling . . . Employees shall not create, forward or store electronic messages that do not pertain to the state's business . . . DSHS Administrative Policy No. 15.15, Section 3, Part C."
CP at 206.
Even assuming that the only reason for DSHS's employment action was Evans's use of her position and state resources for faith-based speech and association, we reject Evans contention that DSHS's actions constituted a forbidden policy or practice for purposes of stating a prima facie claim of retaliation under RCW 49.60.210(1). We find nothing in chapter 49.60 RCW forbidding the limits that DSHS Administrative Policy 15.15 places on employees. See RCW 49.60.180 (listing unfair practices of employers).
Furthermore, in determining whether an employee was opposing a forbidden activity, we "must balance the setting in which the activity arose and the interests and motives of the employer and employee." Coville v. Cobarc Servs., Inc., 73 Wn. App. 433, 439, 869 P.2d 1103 (1994). Here, Evans was not just another employee. She was a leader, one of only a handful of regional administrators for a large state agency, with supervisory responsibilities over a sizable number of people. And she was not just another worshipper; she was the pastor of her own incorporated church. Evans does not deny that she used her position and state resources to communicate and promote her own church and personal religious beliefs to subordinates at work.
Finally, Evans's conduct as regional administrator could arguably constitute state action under an establishment clause violation analysis. See City of Pasco v. Shaw, 161 Wn.2d 450, 460, 166 P.3d 1157 (2007) ("A person is a state actor if that person functions as an agent or instrumentality of the state."). As our Supreme Court has observed, "'tension inevitably exists between the Free Exercise and the Establishment Clauses and . . . it may often not be possible to promote the former without offending the latter. As a result of this tension, our cases require the State to maintain an attitude of 'neutrality,' neither 'advancing' nor 'inhibiting' religion.'" Open Door Baptist Church v. Clark County, 140 Wn.2d 143, 170, 995 P.2d 33 (2000) ( quoting Kallas v. Dep't of Motor Vehicles, 88 Wn.2d 354, 358, 560 P.2d 709 (1977)). Thus, the DSHS policy limiting the use of state resources for promoting personal religious beliefs is in harmony with the requirement that no state actor either advance or inhibit any one particular religion. By limiting such activity by supervisory personnel, the State protects the right of all employees to freely exercise their own religion.
Accordingly, we hold that Evans failed to state a prima facie claim of retaliation under RCW 49.60.210(1) and we, therefore, affirm the trial court's dismissal of her retaliation claim against the State.
III. Pretext
Despite her failure to show evidence establishing prima facie claims of disparate treatment and retaliation, Evans maintains that DSHS failed to rebut a presumption of discrimination with evidence that the challenged employment action was taken for legitimate reasons, Hill, 144 Wn.2d at 181. We briefly address her argument even though her failure to establish a prima facie claim under chapter 49.60 RCW makes this issue moot.
When DSHS responded with evidence of non-discriminatory reasons for its employment actions involving Evans, she then had to show evidence from which a rational fact-finder could conclude that the proffered reason was a pretext for discrimination. Hill, 144 Wn.2d at 182, 185-86 n. 8; Clarke, 133 Wn. App. at 788. Evans asserts on appeal that there is no concrete evidence showing why DSHS made its decision regarding her employment; therefore, summary judgment was not appropriate and DSHS did not otherwise rebut a presumption of prejudice. Evans argues that a "reasonable person could reasonably conclude that [Evans's] and others' faith-based speech, activities and association with each other was a substantial factor in the decision." Br. of Appellant at 30. But Evans admits that "when 'no rational factfinder could conclude that the [employer's] action was discriminatory[,' Hill, 144 Wn.2d at 189,] such as when the record 'conclusively reveal[s] some other, nondiscriminatory reason for the employer's decision' . . . the case [should] be taken away from the jury. [ Milligan, 110 Wn. App. at 637-38.]" Br. of Appellant at 20.
Here, the State offered evidence of Evans's (1) inappropriate use of state E-mail, (2) inappropriate use of the state telephone system, (3) preferential treatment of church members at work, and (4) misuse of state property. The State also offered evidence of employee discontent and complaints regarding Evans's activities as a DSHS regional administrator. In summary, the State asserted that the decision to terminate Evans's exempt position was "based on [the] belief that DSHS needed new leadership in Region 5 and that a change would be in the best interests of DSHS, Region 5 and the clients who were going to be getting services in the region." CP at 282.
The State, and later the trial court, referred to the fact that Evans admitted in her deposition that she used the telephone and fax system to contact Abraham Kennard in an effort to secure significant funding for her church and herself that would allow her to leave DSHS to become a full-time minister. Kennard was later convicted of defrauding more than 1600 churches and nonprofit organizations of about nine million dollars. The trial court stated: "I'm not saying that she was involved in the scam, but she was going to be part of the scam for the church and for private reasons." RP at 23.
Although Evans confirmed these facts in her February 21, 2006, deposition, the Auditor's report does not mention Kennard specifically and there is no other evidence in the record showing that DSHS leadership considered these specific unauthorized activities prior to making its challenged employment decision. Therefore, we do not further discuss Evans's involvement with Kennard.
The trial court found DSHS's nondiscriminatory reasons persuasive and stated that:
[E]verything that I looked at here is just outrageous. The conduct of someone working for a government agency using the computer to talk about church activities, using the computer to contact people about jobs, lending money to people that work for you, and using the computer, phone system to contact people involved in scams. It's just outrageous, the conduct. No one is allowed to do that and work for the government.
RP at 23.
In view of the undisputed and substantial evidence of Evans's unauthorized activities while employed as a DSHS regional administrator, the record shows compelling and nondiscriminatory reasons for DSHS's decision to remove her as Region 5's administrator. When viewing the facts and reasonable inferences most favorably to Evans, no rational fact-finder could conclude that DSHS's asserted nondiscriminatory reasons for its actions were only a pretext; therefore, Evans's assertion that the trial court's grant of summary judgment was erroneous is without merit.
Evans fails to show evidence of a prima facie case of employment discrimination. Even assuming that Evans demonstrated a prima facie case addressing each element of either a disparate treatment or retaliation claim, Evans failed to show that a rational fact-finder could conclude that DSHS's proffered reasons for its actions constituted a pretext for discrimination.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
ARMSTRONG, J., QUINN-BRINTNALL, J., concur