Opinion
No. 35597-3-II.
March 25, 2008.
Appeal from a judgment of the Superior Court for Thurston County, No. 05-2-00617-7, Chris Wickham, J., entered October 20, 2006.
Reversed and remanded by unpublished opinion per Houghton, C.J., concurred in by Bridgewater and Penoyar, JJ.
Trev Kiser appeals from a grant of summary judgment dismissing his claims against Clark College for terminating his employment as the women's basketball coach. We reverse and remand for further proceedings.
FACTS Kiser's Assertions on Summary Judgment
We derive the facts from the trial court record on summary judgment.
Kiser was the head coach for the women's basketball team under yearly renewable contracts at Clark College (the College) from October 1997 through March 2002, when the College terminated his contract. During the time period relevant to this appeal, Dave Waldow served as the College's athletic director and men's basketball head coach, as well as Kiser's supervisor in the capacity of the women's basketball head coach. Blain Nisson was the College's vice-president of student development, and Ardyth Allen was the College's women's commissioner.
According to Kiser, there was a consistent pattern of inequality between the College's men's and women's basketball programs, and he asserts that his complaints regarding the disparity in resources afforded the two teams was the real reason that the College terminated his employment as head women's coach. Along with claiming an unequal number of coaches and assistants, Kiser's allegations focus on differences in (1) officiating, (2) budgets, (3) travel accommodations, and (4) Waldow's hostility toward the women's team.
According to Kiser, the men's team had one assistant coach, one associate head coach who was on the payroll, and two other assistants, while he only had one assistant.
(1) Officiating. In a February 12, 2002 letter to Waldow, the father of a women's team member expressed concern regarding the players' safety due to poor officiating at a February 2 women's game. The letter writer stated that he did not believe that Waldow took women's athletics seriously and that he would make a formal Title IX complaint if the Northwest Athletic Association of Community Colleges (NWAACC), the conference that the College belonged to, did not assign the same quality of officials to both the men's and women's teams.
On February 13, Kiser, Nisson, Allen, and Waldow met to discuss the letter. At the meeting, Kiser said that he was accused of "making up the whole thing about the officials" and that only a small portion of the meeting actually focused on resolving the officiating problem. 2 Clerk's Papers (CP) at 293. According to Kiser, the majority of the meeting was spent "hounding [him], saying that [his] fingerprints were all over [the father's letter]." 2 CP at 296. Kiser asserts that he, Nisson, and Waldow met with Dick McClain, director of the NWAACC, to discuss the issue and that, "once again, they were hammering on me about the investigation issues." 2 CP at 302. According to Kiser, "[t]hey were talking to me like I wrote the letter," and McClain admitted the officials for the men's teams are switched to the women's teams if "they get hurt or get older and can't keep up with the game." 2 CP at 302.
In his February 13 response letter, Waldow stated that (1) the NWAACC was responsible for hiring a central basketball official coordinator; (2) one of the original officials assigned to the game canceled; (3) eight other officials were contacted by the NWAACC officiating coordinator before a replacement official was found; and (4) that official was less qualified than officials generally assigned to league games. Waldow also stated that he had reviewed the game and agreed that the officiating was poor. In addition to Waldow's response letter, Nisson stated that he also met and spent "many, many hours" with the concerned father discussing the officiating issue and to address other issues regarding the women's team's hotel accommodations, discussed below. CP at 136.
According to Kiser, after the February 13 meeting, Waldow approached him and told him to "quit with the Title 9 complaints" or he would be fired and never coach again. 2 CP at 297. According to Kiser, Waldow also said that he was "trying to help" him. 2 CP at 297. On February 15, Kiser emailed Nisson and with his understanding of events from the February 13 meeting. He complained about Waldow's handling of the officiating issue, but he did not mention Waldow's February 13 threat.
(2) Budget. According to Nisson, sometime in early 2002, Waldow sought permission to freeze the fall and winter sports budget to ascertain the amount of unexpended funds. According to Nisson, teams could no longer make discretionary expenditures, and frozen funds were reallocated to equalize support for the men's and women's teams.
According to Kiser, in December 2001, he asked Waldow for permission to buy new sweat suits as well as other supplies. Kiser said Waldow told him that a budget freeze would be implemented but that Kiser should give him a cost estimate. Kiser maintains that he gave Waldow cost information but that Waldow never ordered the new sweat suits.
Kiser also claims that despite the freeze, Waldow's team received new sweat suits around December 28, 2001. In a March 14, 2002 email to Waldow, Kiser complained about the budget freeze, noting that Kiser had not been able to purchase sweat suits, bags, or practice gear for the women's team in order to have funds left for recruitment. Kiser also agreed, however, that it was his choice as head coach whether to spend budgeted funds on buying sweat suits and supplies.
According to Kiser, unequal budgetary treatment between the programs also involved the team's transportation to away games. Kiser states that in October 2001, Waldow told him that, due to a new rule decreasing the number of student occupants allowed per van and the limited number of school vans, the women's team would have access to only one school van and would have to rent a second van or use Kiser's personal car for away games. Kiser says he could not secure a rental van due to the time constraints of his teaching schedule. According to Kiser, he consulted with Waldow on this matter but he does not know if Waldow took any action. For most away games during the 2001-02 season, Kiser transported the women's team players by supplementing the one school van with his own vehicle.
(3) Accommodations. According to Kiser, in late February, Waldow told him that the women's team members would have to sleep four to a room at the NWAACC playoffs. Kiser Page 5 contends he and Waldow argued over whether the budget allowed for more rooms. Kiser said that he emailed Nisson claiming the College was in violation of Title IX because the men's team members slept two to a room. According to Kiser, the concerned father who had written the letter to Waldow spoke with Nisson about the rooms and a few days later the College granted the women's team additional rooms.
Although not identified in the record as the related email, there is an email Kiser sent to Nisson on March 3, reporting an argument he had with Waldow over the budget on March 1, in which Kiser asserts he believes Waldow's expenditures and bookkeeping could put the school in violation of title IV [sic]. CP at 396. There is no mention of hotel rooms.
(4) Waldow's Hostility Toward the Women's Team. Finally, Kiser claims that Waldow showed general hostility toward the women's team. According to Kiser, this hostility was most evident when women's team members heard Waldow describe them as "f ___ ing b ____ es" when they complained to him at a booster event that the men's team was scrimmaging instead of "working with [the] kids" who had come to the event. 2 CP at 278. According to Kiser, the team captain complained to Allen, and Waldow later held a meeting with the team where he explained that he had been misunderstood. Kiser states that Waldow prevented him from attending this meeting.
The College's Assertions on Summary Judgment and Kiser's Rebuttal Countering Kiser's claims, the College argued that it relieved Kiser of his head coaching duties because he misappropriated player per diem funds and misused his school gas card privileges. With respect to the gas card privileges, on March 20, 2002, one student told Waldow that Kiser would "drive his car all week and then fill it up with the school[']s money." 2 CP at 337. Nisson requested a formal investigation into the matter.
(1) The College's Internal Audit. An internal audit report, dated on March 27, 2002, showed that Kiser used a school gas card to fuel his personal vehicle when traveling for away games but later received additional reimbursement for the gas. Nisson interpreted the investigation results as showing theft. He further asserted that Kiser purchased more gas than the school van could hold on eight different occasions and sought duplicate reimbursement by submitting travel vouchers.
Later, after the audit, Kiser admitted receiving duplicate reimbursement for gas but thought his action was permissible and that he was not given the opportunity to explain his rationale. Kiser believed his action was authorized by Joe Hash, the former athletic director, based on a 1999 incident.
According to Hash, in 1999, he and Kiser were en route to an away game when the motor pool van ran out of gas. Hash reported he and Kiser backtracked to the nearest gas station using Kiser's car. Later Kiser filled the van with gas using the school card. Kiser claims his car was also fueled using the school gas card. But Hash did not remember Kiser's car being fueled with the card but admitted it was a possibility, because the car was used to backtrack to the gas station. Hash believed Kiser may have gotten the impression that he approved of the school card being used to fuel Kiser's car "under that circumstance." 2 CP at 230.
According to Hash, the circumstances were extraordinary because it was snowing, the athletes were frustrated, and the motor pool was off schedule due to the van fuel mishap. Kiser also was aware that the secretary was submitting requests for gas mileage reimbursement on his behalf and that he signed the requests. Nevertheless, he believed his use of the gas card was consistent with the College's policy, because the "Womens' [sic] basketball budget paid a duplicate expense of both mileage expense and actual gas costs every time it checked out a van." Appellant's Br. at 13. Nisson did not recall any other employee who was found to have falsified records or committed improprieties with gas funds.
According to Nisson, the audit also showed that Kiser improperly handled and potentially pocketed student per diem meal money. In early March 2002, the women's and men's teams attended an NWAACC tournament in Pasco. Kiser stated that when three women players rode with the men's team against his instructions, he refused to reimburse per diem meal money to the women or to Dan Selby, an assistant coach for the men's team who had paid for the three players' meals. In a March 19 email to Waldow, Selby requested $18 for the women's meals. According to the College, some women team members complained about Kiser's handling of the per diem money at the NWAACC tournament and on other occasions. According to Kiser, he never retained student meal money.
Based on a hearsay objection, the trial court ruled that the Selby email would not be considered for the truth of the matter asserted but as a report on which the College relied in making its decision to discharge Kiser.
Kiser notes that Waldow also had issues regarding the men's team's per diem expenditures. In a March 13 email to Nisson, Waldow reported that his secretary would have to revise the men's basketball travel expense voucher for two games, as "the players were fed both lunch (Izzy's Pizza) and dinner (Wendy's)," which totaled more than the $10 per diem budgeted for each player. CP at 397. Waldow stated in the email that "[i]n the past, we were allowed to spend all of the money advanced for travel even if we traveled with fewer athletes than budgeted." 2 CP at 397. Waldow further stated, "I now understand this can develop an appearance of inequity. $64.16 will be deposited into the Men's Basketball account." 2 CP at 397. The record does not indicate whether Waldow was disciplined for this action but, according to Waldow's assistant, other coaches would occasionally make mistakes in per diem meal money forms but would receive relatively informal reminders rather than formal discipline.
(2) The College's April 1 and April 2, 2002 Letters to Kiser. In an April 1, 2002 letter to Kiser, Nisson stated that Waldow recommended Kiser's termination as head women's basketball coach based on the results of the College's internal audit. According to Nisson, the audit made it "very, very clear that [Kiser] had stolen from the college, stolen resources, and appeared to mishandle money, and perhaps that money also was misappropriated for his own personal gain." CP at 122. He personally reviewed the audit report and decided that Kiser would no longer serve as coach because: (1) the audit found that Kiser received duplicate reimbursement for gasoline, (2) Kiser later admitted duplicate reimbursement, and (3) Kiser apparently fraudulently handled per diem meal money.
But Nisson recommended that Kiser stay to teach billiards and bowling, so long as Kiser had no contact with team members or their families due to an ongoing review of per diem meal money. Kiser's continued employment was also contingent on his repaying $237.66 for improperly charged gas by Friday, April 12. In an April 2 letter, the director of personnel services, Katrina Golder, repeated these conditions, noting the school's decision was based on the recommendations of Waldow; Nisson; and Yvette Jackson, vice-president of instruction.
The mileage/fuel audit was complete, but the meal reimbursement investigation was ongoing.
Through his counsel, Kiser reimbursed the College $237.66 gas money and $105 per diem meal money on April 10. His counsel included a memo from Kiser stating that he was reimbursing the College $105 owed to 10 students who attended a tournament but had not received their per diem meal monies from him because when they left the tournament with their parents he only had $100 bills that he could not "break . . . into change." CP at 113. Kiser's counsel also noted that Kiser had already turned in $320 in meal money on March 11.
On April 3, 2002, Kiser also wrote a memo indicating that he repaid $15 for three team members' lunch expenses.
Nisson said that during his investigation some team members were pressuring other members at Kiser's behest to sign statements acknowledging that Kiser had paid them their per diem funds in full even though those students had not been paid and the funds had not been returned to the school. Kiser admitted that he also spoke with a concerned father after the no communication instruction, although he says that the father called him. As a result, according to Kiser, the College also relieved Kiser from his teaching duties. Kiser unsuccessfully contested his dismissal through the grievance process.
PROCEDURAL HISTORY
Kiser sued the College, alleging retaliatory discharge under both RCW 49.60.210 and Title IX and for wrongful termination in violation of public policy. Kiser based his state statutory claim on the College's alleged violation of chapter 28B.110 RCW, prohibiting discrimination on the basis of gender in intercollegiate athletics.
The trial court granted the College's motion for summary judgment on Kiser's state and federal statutory retaliation claims. Although Kiser introduced evidence to support his argument that the College had retaliatory motivations, the trial court found the evidence insufficient to establish pretext as a matter of law and dismissed his retaliatory discharge claims. The trial court concluded that he presented evidence of complaints about Title IX violations and protected activity under RCW 49.60.210, but that the College presented evidence of a legitimate, non-retaliatory reason for terminating his employment.
At later hearing, the trial court granted summary judgment for the College on Kiser's remaining wrongful termination claim. The trial court also denied Kiser's motion for reconsideration. He appeals.
ANALYSIS Standard of Review
We review an order on summary judgment de novo, engaging in the same inquiry as the trial court. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004). We consider summary judgment appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c). We consider facts in the light most favorable to the nonmoving party. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005); Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982).
Retaliatory Discharge
RCW 28B.110.010 provides that "Article XXXI, section 1, Amendment 61 of the Washington state Constitution requires equal treatment of all citizens, regardless of gender. Recognizing the benefit to our state and nation of equal educational opportunities for all students, discrimination on the basis of gender against any student in the institutions of higher education of Washington state is prohibited." RCW 49.60.210(1) provides that "[i]t 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." Title IX provides that '[n]o person in the United States shall, on the basis of sex, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any education program or activity receiving Federal financial assistance." 20 U.S.C. § 1681(a).
Washington courts generally look to federal law when analyzing discrimination claims. Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 180, 23 P.3d 440 (2001); see also Stegall v. Citadel Broad. Co., 350 F.3d 1061, 1065 (9th Cir. 2003). Washington's "antidiscrimination law closely parallels Title VII of the United States Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.," and we, therefore, look to interpretations of federal law when construing chapter 49.60 RCW. Graves v. Dep't of Game, 76 Wn. App. 705, 712, 887 P.2d 424 (1994); Little v. Windermere Relocation, Inc., 301 F.3d 958, 969 (9th Cir. 2001).
An implied cause of action exists under Title IX for retaliatory employment action based on an employee's complaints of sex discrimination. Jackson v. Birmingham Bd. of Ed., 544 U.S. 167, 125 S. Ct. 1497, 161 L. Ed. 2d 361 (2005). The Jackson Court did not provide specific guidance on how to analyze a Title IX retaliation claim. But one federal court has decided in the absence of such guidance that it would rely on "Title VII's well developed standards." Burch v. Regents of the Univ. of Cal., 433 F. Supp. 2d 1110, 1125 (2006). Thus, in accord with Title VII standards, the Court noted that complaining informally to a supervisor is a protected activity under Title IX, as is complaining about the discriminatory treatment of others. Burch, 433 F. Supp. 2d at 1126.
The College asserts for the first time on appeal that Kiser failed to engage in statutorily protected activity as defined by Title IX and that his complaints did not provide the College with actual notice of Title IX violations as required under 20 U.S.C. § 1681(a). According to the College, the Court's opinion in Jackson, finding an implied cause of action under Title IX, relied in part on Gebser v. Lago Vista Independent School District, 524 U.S. 274, 118 S. Ct. 1989, 141 L. Ed. 2d 277 (1998). In Gebser, the Court held that damages were not an available remedy in a Title IX action unless actual notice of a violation is given to a school official who has authority to institute corrective actions and that official is deliberately indifferent to the violation. 524 U.S. at 277. According to the College, Kiser's complaints to Waldow should have been directed instead to Allen, "the Clark College administrator . . . designated to respond to Title IX issues." Resp't's Br. at 27.
The College seems to argue that Waldow had no "authority" to institute corrective actions and, thus, Kiser has failed to establish the first prong of his prima facie case, i.e., that he engaged in statutorily-protected activity by making "cognizable complaints under Title IX sufficient to sustain his retaliation claims." Resp't's Br. at 29. Kiser counters that he repeatedly made complaints regarding budget discrepancies, officiating, and accommodations, among other things, to Waldow, Nisson, and Allen. Kiser insists that the College, therefore, received actual notice of his Title IX concerns, especially in light of Waldow's alleged threat.
According to our reading of Burch, the College misconstrues and narrows the actual notice required under Gebser, especially when we view the facts in the light most favorable to Kiser. See Burch, 433 F. Supp. 2d at 1126. The record does not show that the College was unaware of Kiser's allegedly protected activities before terminating his position as head coach. Moreover, Waldow's threat, again taken in the light most favorable to Kiser, indicates that the College received adequate notice.
Further, even if we were to accept the College's argument regarding Gebser, the record indicates that Waldow possessed sufficient "authority" to remedy Title IX violations, regardless of who the College officially "designated" to address Title IX violations. At the very least, Waldow had an implicit authority to address Title IX issues, as is suggested by his reply to the concerned father who wrote the letter threatening to file a Title IX complaint. Therefore, the College's argument that Kiser cannot establish that he engaged in statutorily-protected activity fails.
To avoid summary dismissal under either RCW 49.60.210 or Title IX, the plaintiff must survive the burden shifting rubric first set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), and adopted in Washington in Hill, 144 Wn.2d at 180-81. See also Renz v. Spokane Eye Clinic, P.S., 114 Wn. App. 611, 618, 60 P.3d 106 (2002); Burch, 433 F. Supp. 2d at 1125-26. First, the plaintiff must establish a prima facie case of retaliatory discharge. Hill, 144 Wn.2d at 181 (citing McDonnell Douglas, 411 U.S. at 802). For a prima facie case, the plaintiff must show that (1) he engaged in statutorily protected activity, (2) he suffered adverse employment action, and (3) there is a causal link between the protected activity and adverse action. Milligan v. Thompson, 110 Wn. App. 628, 638, 42 P.3d 418 (2002); Stegall, 350 F.3d at 1065-66.
In establishing a prima facie case of retaliatory discharge, a retaliatory motive need not be the employer's sole or chief reason for the termination, so long as the employee establishes that retaliation was a substantial factor. Renz, 114 Wn. App. at 621. A factor supporting the termination is substantial if "it so much as tips the scales one way or the other." Renz, 114 Wn. App. at 621. Because employers infrequently announce a retaliatory motive, employees ordinarily must resort to circumstantial evidence to show it. Estevez v. Faculty Club of the Univ. of Wash., 129 Wn. App. 774, 799, 120 P.3d 579 (2005).
In determining a causal link, proximity in time between the termination and protected activity is a factor that suggests retaliatory motivation. Estevez, 129 Wn. App. at 799. Thus, if the employee establishes that he participated in opposition activity, the employer knew of the opposition activity, and he was discharged, a rebuttable presumption arises in favor of the employee. Estevez, 129 Wn. App. at 799. But opposition to an employer's possible discrimination does not create absolute immunity for the employee who may be discharged for proper cause, even when engaged in protected activity. Vasquez v. Dep't of Soc. Health Servs., 94 Wn. App. 976, 985, 974 P.2d 348 (1999).
If the employee establishes a prima facie case, "the evidentiary burden shifts to the defendant to produce admissible evidence of a legitimate, nondiscriminatory explanation for the adverse employment action sufficient to 'rais a genuine issue of fact as to whether [the defendant] discriminated against the plaintiff.'" Hill, 144 Wn.2d at 181 (quoting Texas v. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981)); Renz, 114 Wn. App. at 622. If the employer meets its burden, the employee then has the opportunity to demonstrate that the employer's articulated rationale was not the true reason for its action but rather a pretext for discrimination. Hill, 144 Wn.2d at 182; Renz, 114 Wn. App. at 622. If the plaintiff cannot show pretext, the defendant is entitled to judgment as a matter of law. Hill, 144 Wn.2d at 182.
Even though a plaintiff establishes a prima facie case and presents some evidence to challenge the defendant's stated reason for its action, a court may still grant summary judgment. Milligan, 110 Wn. App. at 637. Summary judgment is proper if the record conclusively reveals some other, nondiscriminatory reason for the employer's decision, or if the plaintiff creates only a weak issue of fact as to whether the employer's reason was untrue and there is abundant and uncontroverted independent evidence that no discrimination occurred. Milligan, 110 Wn. App. at 637. Conversely, if the parties meet all three McDonnell Douglas intermediate burdens and the record contains reasonable but competing inferences of both discrimination and nondiscrimination, the jury must choose between such inferences. Hill, 144 Wn.2d at 186.
A plaintiff may establish a prima facie case of discrimination by offering direct or circumstantial evidence of discrimination. Vasquez v. County of Los Angeles, 349 F.3d 634, 640 (9th Cir. 2003). Direct evidence is "'evidence which, if believed, proves the fact [of discriminatory animus] without inference or presumption.'" Vasquez, 349 F.3d at 640 (quoting Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998)). When there is no direct evidence of a final decisionmaker's discriminatory animus, the employee must show a nexus between the decisionmaker's employment action and the subordinate supervisor's discriminatory animus. See Vasquez, 349 F.3d at 640. There is no nexus when a decisionmaker conducts an investigation sufficiently independent of the conflict between a subordinate and employee. See Vasquez, 349 F.3d at 639-40 (finding no nexus between a director's investigation of a conflict between supervisor and employee where the supervisor made allegedly discriminatory remarks).
In assessing whether Kiser presented evidence of a statutorily protected activity, the trial court specifically noted that it considered the van, the sweat suits, and the officiating evidence. According to the trial court,
[i]t's for this Court to determine whether or not given the time line that Ms. Huffington has presented the college was looking for a method to remove Mr. Kiser and happened upon the inappropriate accounting of the per diem and mileage expenses. I think it's in that portion of the analysis that the question regarding the significance and the substance of the Title IX allegations comes in. . . . [T]he allegations that were made under Title IX were indirect, were minor, and were not extensively pursued. It seems to me that the college's action stands on its own and can be considered not as a pretext but as a valid employment action taken by an employer who has been confronted with falsification of forms regarding [the] budgeting for a sports activity.
Given all of that and finding that the employment action was not a pretext, I'm prepared to grant the Motion for Summary Judgment this morning.
3 CP at 489-90. Our de novo review discloses that the trial court should not have granted summary judgment.
Under Vasquez, 349 F.3d 634, Kiser satisfied his burden of production by showing a nexus between the alleged retaliatory threat from Waldow and the employment decision. Kiser asserts that the threat occurred after the February 13 meeting in which he, Waldow, Nisson, and Allen discussed the officiating problem. Although Nisson claims that he undertook an independent investigation, we view the record in a light most favorable to the nonmoving party and Kiser has provided evidence, in the form of Waldow's threat, to create a genuine issue of fact whether the College fired him as a result of retaliatory animus. As described above, whether Waldow personally was the "final" decisionmaker, he appears vested with sufficient authority as athletic director to address Title IX violations. Thus, his threat presents direct evidence of a nexus between retaliatory motive and the employment decision.
Here, Kiser has met his burden of production with respect to establishing a prima facie case. The College also produced evidence that Kiser sought and received duplicate reimbursement for gas which the trial court found to be a legitimate basis for the College to Page 17 discharge Kiser. Thus, in order to proceed on his case, Kiser had to produce evidence that raised a genuine issue of material fact whether the College's stated reasons for discharging him were unworthy of belief or were simply a pretext.
Genuine Issues of Material Fact Regarding Pretext
Under the McDonnell Douglas burden allocation scheme as followed by Milligan and Hill, both parties are required to carry their respective "intermediate evidentiary burdens" to preclude an unfavorable judgment as a matter of law. Hill, 144 Wn.2d at 180-81 (citing Burdine, 450 U.S. at 253); see also Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 143, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). As noted, once an employer meets its burden of showing a legitimate reason for termination, an employee must produce evidence that raises a genuine issue of material fact whether the reason given for discharging the employee is unworthy of belief or is a mere pretext for what is in fact a discriminatory purpose. Sellsted v. Wash. Mut. Sav. Bank, 69 Wn. App. 852, 859-60, 851 P.2d 176 (1993). In showing pretext, an employee is not required to produce evidence beyond that already offered to establish the prima facie case. Sellsted, 69 Wn. App. at 860). This evidence and inferences properly drawn therefrom may also be considered in determining pretext. Burdine, 450 U.S. at 255 n. 10.
In Hill, our Supreme Court held that "while a McDonnell Douglas prima facie case, plus evidence sufficient to disbelieve the employer's explanation, will ordinarily suffice to require determination of the true reason for the adverse employment action by a fact finder in the context of a full trial, that will not always be the case." Hill, 144 Wn.2d at 185. Further, according to the court, "an employer would be entitled to judgment as a matter of law if the record conclusively revealed some other, nondiscriminatory reason for the employer's decision, or if the plaintiff created only a weak issue of fact as to whether the employer's reason was untrue and there was abundant and uncontroverted independent evidence that no discrimination had occurred." Hill, 144 Wn.2d at 184-85.
On the other hand, an employee may show the employer's stated reasons for the adverse action are unworthy of belief by showing that (1) the reasons lack a factual basis; (2) even if there is a factual basis, the employer was not motivated by these reasons; or (3) the reasons are insufficient to motivate adverse employment action. Renz, 114 Wn. App. at 619. If the employee fails to make this showing, the employer is entitled to summary judgment. Renz, 114 Wn. App. at 619.
Kiser primarily argues that the trial court's analysis was faulty because it "focused on weighing the seriousness of Kiser's accusations of Title IX violations against the seriousness of the alleged non-retaliatory reasons for termination." Appellant's Br. at 35. According to Kiser, the trial court erred because it weighed the evidence and required him to prove pretext rather than only assess whether he met his burden of production. Kiser claims pretext by highlighting the following: (1) a direct threat from Waldow, (2) a suspicious timeline of events, (3) shortcomings in the College's investigation, (4) differing standards of discipline, (5) the College's lack of a written policy in handling the gas card or per diem funds, and (6) his belief that he handled funds reasonably.
The record does not show conclusively as a matter of law, as described in Hill, that Kiser's termination of employment was based on his alleged theft and fraud or that his Title IX complaints were not a substantial factor in the decision to relieve him of his coaching duties. The College does not deny that Waldow threatened Kiser with losing his job if he did not refrain from making Title IX allegations. Under Nauroth v. Spokane County, 121 Wn. App. 389, 393-94, 88 P.3d 996 (2004), that threat became an established, undisputed fact on appeal. The College does not directly refute Kiser's claim; it merely claims that the evidence was taken out of context because Kiser says that Waldow also said that he was "trying to help" him. 2 CP at 297. Thus, his threat presents direct evidence of a nexus between retaliatory motive and the employment decision sufficient to suggest that the College's stated reasons for termination were pretextual.
In Nauroth, the court held that where a plaintiff did not contradict the defendant's evidence, the plaintiff failed to establish the existence of a genuine issue of material fact. 121 Wn. App. at 393-94.
Apart from this direct evidence, Kiser also presents circumstantial evidence that raises issues of fact as to whether the College had retaliatory motive. With respect to the timing of the College's investigation, an issue of fact exists whether the College began monitoring Kiser before or after complaints were made. Waldow's assistant stated that either Waldow or Nisson asked her to take notes regarding Kiser's interactions. The assistant initially said that she was asked to takes these notes in late February. But she also stated the dates regarding the notes were a "blur" and were in relation to the issue of per diem and gas card payments. 4 CP at 434. The record is not clear whether the trial court considered this as "timeline" evidence. In light of the assistant's conflicting assertions, the assistant's testimony does not preclude a reasonable inference that the College's investigation was tainted by a retaliatory animus.
Further, Nisson's and Jackson's April letters to Kiser indicated that the College considered Kiser guilty of theft or fraud (with respect to the fueling of his personal car and that he would need to reimburse any of the per diem money he had retained). Yet the College still remained willing to conditionally retain him in a limited capacity. The import of these letters gives rise to a reasonable inference that the College may have had mixed motivations regarding terminating Kiser as a result of the contact between him and a team member's father.
In sum, the record supports a reasonable inference that the College had a retaliatory motive that was a substantial factor in its rationale for terminating Kiser. Kiser met his burden of production with regard to pretext, given (1) the direct evidence of Waldow's threat and his continued employment at the College after his dismissal from his coaching duties and (2) the questions Kiser raised surrounding the timing, motivation, and thoroughness of the College's investigation. Thus, the trial court should not have granted summary judgment dismissing Kiser's claims under RCW 49.60.210 and Title IX.
Wrongful Discharge
The trial court also dismissed Kiser's claim of wrongful discharge against the College. The analysis that allows Kiser to survive summary judgment for his wrongful discharge claim overlaps somewhat with the analysis regarding his state and federal statutory claims we have discussed above.
To establish a claim for wrongful discharge in violation of public policy claim, an employee must show: "'(1) the existence of a clear public policy ( clarity element); (2) that discouraging the conduct in which [he or she] engaged would jeopardize the public policy ( jeopardy element); and (3) that the public-policy-linked conduct caused the dismissal ( causation element)." Korslund v. DynCorp Tri-Cities Servs., Inc., 156 Wn.2d 168, 178, 125 P.3d 119 (2005) (citing Hubbard v. Spokane County, 146 Wn.2d 699, 707, 50 P.3d 602 (2002)). After those three elements are established, "(4) 'the defendant must not be able to offer an overriding justification for the dismissal' ( absence of justification element)." Korslund, 156 Wn.2d at 178 (quoting Hubbard, 146 Wn.2d at 707).
In determining a wrongful termination in violation of public policy, Washington statutes and case law provide the primary sources for public policy, but other sufficient sources of public policy may be found in federal law in order to satisfy the clarity element. Anica v. Wal-Mart Stores, Inc., 120 Wn. App. 481, 495-96, 84 P.3d 1231 (2004). "Whether a particular statute contains a clear mandate of public policy is a question of law." Hubbard, 146 Wn.2d at 708. The plaintiff bears the burden of showing that the dismissal violates a clear mandate of public policy. Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 232, 685 P.2d 1081 (1984). Thus, to satisfy the clarity element, a plaintiff must merely establish a clear statement of public policy, not that the public policy was violated. Hubbard, 146 Wn.2d at 708-09. Here, Kiser established the clarity element by his claim that he was fired for complaining of conduct violating Title IX, RCW 28B.110.010, .050, Chapter 49 RCW, and the public policies promoted by those statutes.
A plaintiff establishes the jeopardy element by showing that he "'engaged in particular conduct, and the conduct directly relates to the public policy, or was necessary for the effective enforcement of the public policy.'" Hubbard, 146 Wn.2d at 713 (quoting Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 945, 913 P.2d 377 (1996)). Thus, the plaintiff must "'argue that other means for promoting the policy . . . are inadequate.'" Hubbard, 146 Wn.2d at 713 (quoting Gardner, 128 Wn.2d at 945). Also, the plaintiff must "'show how the threat of dismissal will discourage others from engaging in the desirable conduct.'" Hubbard, 146 Wn.2d at 713 (quoting Gardner, 128 Wn.2d at 945). In deciding if the public policy has been contravened or jeopardized, we must look to the "'letter or purpose of a statute.'" Hubbard, 146 Wn.2d at 713 (quoting Dicomes v. State, 113 Wn.2d 612, 620, 782 P.2d 1002 (1989)). Where there is no concern of imminent threat to public safety, the jeopardy element is satisfied if the plaintiff has an objectively reasonable belief that the employer has violated the law. See Ellis v. City of Seattle, 142 Wn.2d 450, 460-61, 13 P.3d 1065 (2000). In this case, for similar reasons discussed above with respect to his statutory claims, Kiser met his burden of production that he had a reasonable belief the College was violating Title IX and chapter 49 RCW.
Under the causation element, a plaintiff may show that his public-policy-linked conduct actually caused termination of his employment. Gardner, 128 Wn.2d at 941. Wrongful discharge in violation of public policy is an intentional tort; therefore, the plaintiff must establish wrongful intent to discharge. Korslund, 156 Wn.2d at 178. There must be sufficient evidence of a nexus between the discharge and the alleged policy violation. Havens v. CD Plastics, Inc., 124 Wn.2d 158, 179, 876 P.2d 435 (1994). A court may determine causation as a matter of law when reasonable minds can reach but one conclusion. Miller v. Likins, 109 Wn. App. 140, 144, 34 P.3d 835 (2001). For reasons discussed above with respect to his statutory claims, Kiser has raised a material issue of fact regarding whether the College possessed wrongful intent to discharge in violation of a public policy.
Finally, with respect to the remaining element of a wrongful discharge claim, justification for a termination is an affirmative defense. See Hubbard, 146 Wn.2d at 718. Where the plaintiff has "met the clarity element and a question of fact remains as to the jeopardy and causation elements, the burden does shift to the [defendant] to show an overriding justification for [the plaintiff's discharge]." Hubbard, 146 Wn.2d at 718. Therefore, if Kiser has met the clarity and jeopardy elements, it is the College's burden to raise the question of justification.
Kiser asserts that the College failed to show that its reasons for terminating his employment were an overriding justification above public policy concerns. The College counters that he failed to establish the jeopardy element, causation, or absence of justification. It also asserts that the justification element is only relevant where the employer asserts an affirmative defense and it is undisputed that the employer took adverse action against the employee due to public policy related conduct.
Additionally, the College argues that Kiser cannot bring a wrongful discharge claim because he merely had a periodically renewable contract. The College barely gives passing review to these arguments in its brief and we decline to review them further. RAP 2.5(a).
With respect to the wrongful discharge claim, Kiser relies on the same evidence that applies to the statutory McDonnell Douglas analysis. But as discussed above, and given that we review the record in a light most favorable to the nonmoving party, he has raised material issues of fact regarding the jeopardy and causation elements, and the College has not conclusively and affirmatively shown as a matter of law that they were justified in terminating his employment.
Attorney Fees
Kiser seeks attorney fees and reasonable costs on appeal under RCW 49.48.030, RCW 49.60.030(2), and Title IX, 20 U.S.C. § 1681. These statutes provide for prevailing party attorney fees and costs. We award Kiser attorney fees and costs on appeal upon compliance with RAP 18.1(d).
"In any action or proceeding to enforce a provision of . . . Title IX . . . the court, in its discretion, may allow the prevailing party . . . a reasonable attorney's fee." 42 U.S.C. § 1988(b).
Reversed and remanded for further proceedings.
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.
BRIDGEWATER, J. and PENOYAR, J., concur.