Hunt, J. — Pierce County Jail Corrections Officer Jason Haley appeals the superior court's order granting summary judgment to Pierce County on his race discrimination and retaliation claims, which he brought under the Washington Law Against Discrimination (WLAD) because the County failed to promote him to deputy sheriff in 2007. Haley claims that the County is liable to him for race discrimination and retaliation for repeatedly disqualifying him from consideration for promotion during his background investigation and for failing him after his original oral board in 2007. Haley argues that the superior court erred in dismissing his claims on summary judgment because he produced sufficient evidence to establish a prima facie case for each of his claims and to demonstrate that the County's proffered reasons for denying him a promotion during these stages were pretexts for race discrimination and retaliation.
Although Haley alleged in his complaint multiple individual "John and Jane Does" as supervisors, he neither filed an amended complaint nor otherwise supplemented the record before summary judgment, naming any of these management employees or identifying them as individual defendants. Clerk's Papers (CP) at 2. Thus, we construe Haley's complaint as seeking redress only from the County in its capacity as Haley's employer.
Ch. 49.60 RCW.
Two years after Haley failed his 2007 oral board, the County voluntarily gave him a new oral board, which he also failed, in 2009. Haley's claims against the County in this action, however, are not based on this 2009 oral board's actions.
Holding that genuine issues of material fact exist about whether the County's actions involving Haley's background investigation and original 2007 oral board were pretextual, we reverse the superior court's summary judgment dismissal of Haley's race discrimination and retaliation claims and remand for trial.
We note that, if on remand, Haley is successful on his race discrimination and/or retaliation claims at trial, the County may argue to the jury that Haley's failure of his new oral board, administered in 2009, limits his damages or other potential remedies.
I. Employment History
Because this case involves a grant of summary judgment, we recount the facts in the light most favorable to the nonmoving party, here Jason Haley. In July 2006, the Pierce County Sheriff's Department hired Haley, an African American male, to work as a corrections officer in the jail; Haley had previously served 12 years as a Navy supervisor and training officer. When the County first hired Haley, it told him that his hairstyle—braids on top of his head—was "fine." Clerk's Papers (CP) at 20. But a few days into his employment, his hairstyle became a "major issue": Other employees commented that the County was "hiring thugs now" and gravitated away from him; and Haley could feel tension whenever he entered the room. CP at 24. When the County asked him to remove his braids because "the inmates were reacting to his hairstyle," Haley immediately complied. CP at 59. He did not, however, report his co-workers' derogatory comments at that time because he did not want to lose his job.
CP at 20.
According to his jail supervisors, Haley's performance as a corrections officer was satisfactory or "above average." CP at 718. They described him as being a "conscientious officer"; someone you could "count on"; having a "military bearing" and a clean appearance; communicating in a "nice, level manner"; and writing reports that were "on the edge of excellence." They also noted that Haley had a very high level of "integrity," which they had never questioned.
CP at 676, 699-700.
CP at 676, 705, 720.
After completing his probation period as a corrections officer in May or June 2007, Haley applied for promotion to deputy sheriff. He passed the physical agility test and the video and written exams. He was then placed on the register of eligible applicants for deputy sheriff (Deputy Sheriff Promotion Register).
A. First Disqualification from Deputy Sheriff Promotion Consideration
Shortly after Haley was placed on the register of eligible deputy sheriff applicants, the County's Background Unit received a telephone call from a county corrections facility employee stating that Haley had been "falsifying" his inmate "welfare checks" during his shifts at the county jail. CP at 32-33. Inmate "welfare checks" require correctional officers to check on the inmates at least once every hour and to record each time the officer performs a welfare check. CP at 740. Rather than actually entering the open-dorm cell, however, Haley had been looking in on the inmates through a window and then recording that he had completed his welfare checks.
Background Unit supervisor Sergeant David Perry, who had openly mocked African Americans for complaining about race discrimination in the County's hiring process two years earlier, investigated Haley's allegedly falsified inmate welfare checks. Perry and two other members from the Background Unit held a telephone conference with Sergeant David Schultz, one of Haley's jail supervisors. According to Perry, Schultz stated that (1) Haley's improper performance of the inmate welfare checks was a potentially "terminable offense"; (2) he (Schultz) believed Haley should have been written up; and (3) he (Schultz) disagreed with his supervisor Lieutenant Charla James-Hutchinson's assessment that the incident was merely a "training issue." CP at 751.
Perry did not confirm Schultz's statements with his higher-ranked jail supervisor, James-Hutchinson, who also served as Haley's supervisor. Instead, based solely on Schultz's unconfirmed report, Perry's Background Unit "disqualified" Haley from further consideration for promotion to deputy sheriff. CP at 613. The Background Unit emailed Haley about his deputy sheriff disqualification and told him that there were "significant concerns" about his job performance at the jail, without specifying what they were. CP at 2.
The record is not clear whether this first "disqualification" led to Haley's being formally removed from the Deputy Sheriff Promotion Register or whether it was merely a preliminary finding that he should be disqualified. CP at 751. Nevertheless, we note that (1) on or around July 20, 2007, the County notified Haley in writing that he was being disqualified, presumably because of the jail inmate welfare checks issue; and (2) this reason for disqualifying Haley at the Background Unit level was eventually removed.
Haley collected copies of his jail performance evaluations. Finding no reference to any job performance concerns, he attempted to contact the Background Unit several times, by email and by phone; but he received no response. After this first disqualification by the Background Unit, Haley filed an Equal Employment Opportunity (EEO) complaint with the County's human resources department, alleging race discrimination.
Eventually, Haley spoke to Perry by phone about the inmate welfare checks allegation. CP at 666-67. Perry became "upset" during this conversation: He yelled at Haley, accused him of calling another sergeant a "liar," and, just before hanging up, said that he (Perry) was "gonna have somebody's *ss." CP at 667. According to Perry, at the end of this conversation, he put Haley's disqualification "on hold" until the Background Unit could investigate further. CP at 751. This "hold" apparently had the effect of nullifying, or "remov[ing,]" Haley's first disqualification. CP at 613.
B. Second Disqualification from Deputy Sheriff Promotion Consideration
Meanwhile, the jail conducted its own investigation and determined that (1) Haley's improper inmate welfare checks were the result of a minor "glitch" in his field training program, (2) Haley "had done the welfare check[s] with the training that he had been given," (3) "it was not his fault that [the welfare checks] did not occur absolutely correctly," and (4) the welfare checks incident "was not an issue that should be taken up in [the deputy sheriff promotion] process." CP at 712 (emphasis added), 714. According to Perry, Schultz then "changed his [story]" and began presenting Haley's improper inmate welfare checks as a minor incident. CP at 751.
The Background Unit learned about these jail investigation findings exonerating Haley, including that Haley's failure to perform the welfare checks properly was not "serious," as originally believed. CP at 97. Despite this exoneration, the Background Unit conducted additional research on Haley. According to Perry, however, the Background Unit normally would not undertake such research "until later," after an applicant had passed his "pre-oral" board interview, which had not yet occurred for Haley. CP at 752. The record contains no explanation for the Background Unit's unusual focus on Haley.
This additional research revealed other performance-related issues in Haley's file that allegedly concerned the County's Background Unit: (1) Haley's initial, month-long field-training program had been extended after he missed half of it because of a leg injury and had temporarily failed to respond to training in a few areas (which he later remedied to receive a "Success" rating); (2) he had once forgotten to bring his gun to work; and (3) he had been counseled about misusing sick-leave. Based on this additional information, the Background Unit, under Perry's supervision, again "disqualified" Haley from further consideration for promotion to deputy sheriff. CP at 752.
CP at 537.
This second disqualification occurred less than three weeks after Haley filed his EEO racial discrimination complaint. The record suggests that Perry may have known about Haley's EEO discrimination complaint before the County Background Unit disqualified him this second time: Perry knew about Haley's race discrimination complaint by "approximately September, 2007"; Haley was informed about his second disqualification "on or about September 11, 2007." CP at 613. Again, this disqualification occurred without the Background Unit's first speaking to Haley's jail supervisor, James-Hutchinson, about Haley's jail performance evaluations. And Haley was eventually notified in writing that his name was being removed "for cause" from the Deputy Sheriff Promotion Register. CP at 613.
Haley filed his first EEO complaint on or around August 23, 2007. On or around September 11, the Background Unit informed him about his second disqualification.
James-Hutchinson believed that Haley's race was a "factor" in the County Background Unit's repeatedly disqualifying him during his background investigation. CP at 732. According to James-Hutchinson, Haley had no significant negative information in his jail performance evaluations. CP at 718. James-Hutchinson and most supervisors did not consider an officer's leaving his gun at home to be a serious performance issue unless it became a "repeat offense," which, in Haley's case, it apparently was not; nor had this one-time incident precipitated adverse employment consequences for Caucasian officers, who instead were nevertheless promoted. CP at 722. Similarly, Caucasian corrections officers had misused sick leave time; yet they, too, had been promoted to deputy sheriff.
A Caucasian corrections officer had previously left his gun in his car, from which the gun had been stolen. Nevertheless, the County had promoted this officer to deputy sheriff.
II. Administrative Procedure
A. Civil Service Commission Appeal; Reinstatement to Deputy Sheriff Promotion Register
Haley appealed his removal from the Deputy Sherriff Promotion Register to the County's civil service commission. Civil Service Chief Examiner Sandra L. Pietz conducted an investigation into Haley's two background-unit-level disqualifications and removal from the Deputy Sheriff Promotion Register. Finding insufficient evidence for Haley's disqualifications, Pietz placed Haley back on the Deputy Sheriff Promotion Register.
Haley's reinstatement to the Deputy Sheriff Promotion Register prompted strong reactions within the County sheriff's department: Perry called Haley a "punk," referred to his EEO complaint as "despicable" and "extremely, extremely offensive," and stated that Haley "wasn't doing himself any favors" by complaining about race discrimination. CP at 766, 767, 768. A sheriff's captain commented that Haley was being reinstated to the promotion register only because of "white guilt." CP at 791.
B. Oral Board Failure
Despite this dissension, the County scheduled Haley for an oral board interview, the next step in the deputy sheriff promotion process. These oral boards are normally conducted by a panel comprising three evaluators from different levels in the sheriff's department—one peer, one supervisor, and one administrator. During the oral board, the panel members ask a standard set of questions and individually score the applicant on a 0-4 scale in eight categories: (1) appearance, (2) oral presentation, (3) writing skills, (4) professional impact, (5) interpersonal sensitivity, (6) desire for self-improvement, (7) reasoning/problem solving abilities, and (8) integrity. To pass, an applicant must receive from at least two panel members a minimum of "44" points in the first seven categories and a minimum of "2" points in the eighth category, "integrity." CP at 539.
Despite his earlier negative remarks about Haley's EEO race discrimination complaint, Perry assisted Undersheriff Eileen Bisson in selecting two of the three panelists for Haley's oral board. Perry proposed, and received Bisson's "approval or blessing" for, Captain Ed Smith and Craig Adams, a legal advisor who, in addition to Perry, also knew about Haley's EEO complaint. CP at 611. Perry and Bisson then agreed that Bisson, Smith, and Adams would serve as Haley's oral board panelists. This panel's makeup was "unprecedented" and "highly unusual" because it comprised three high-ranking administrators rather than the standard peer, supervisor, and single administrator. CP at 610, 611.
On November 30, 2007, Haley had his oral board. He received passing scores from Bisson. He received failing scores from the two panel members whom Perry had proposed, Smith and Adams. Adams gave the following reasons for Haley's low scores: Haley was "monotone," had a "flat affect," did not appear "very approachable," saw the world as very "black and white," and produced a writing sample that was "very superficial" and did not communicate much information. CP at 530, 531. Adams gave Haley a score of "1.5" for integrity because he (Adams) believed that the panel had to "pry information" from Haley and that he had "changed [his] stories" on one of the questions. CP at 528, 532.
Smith commented that Haley did not seem "confident," did not have an "approachable demeanor," had "rigid" thinking, "[m]isspoke a couple of times," and produced a writing sample that was too "simple" and contained one spelling error. CP at 77, 84, 85. Smith gave Haley a score of "0" in the categories of reasoning/problem solving and integrity, largely because Haley had been involved in a juvenile gun incident. CP at 86. Smith maintained that this juvenile gun incident was an "automatic disqualifier" and that it appeared "[q]uestionable" whether Haley was telling the truth about the incident. CP at 80, 86. According to the County's written hiring standards, however, Haley's juvenile gun incident should not have been an "automatic disqualifier" or a determinative factor in the oral board's deputy sheriff promotion decision.
When the oral board panel members asked whether Haley had ever been arrested, he apparently told them he had been charged with "reckless handling of a firearm" and placed on "house arrest" for three months as a juvenile. CP at 556. Smith did not know whether Haley's juvenile reckless handling of a firearm charge was a misdemeanor or a felony or whether it had resulted in a conviction.
Pierce County's hiring standards provide for automatic disqualification only if an applicant was "convicted" of a felony crime as an adult or a misdemeanor within the last three years; these standards also provide for disqualification if there are domestic violence concerns. CP at 594. Haley's juvenile gun incident did not fall within these categories.
Bisson similarly reported that Haley did not have much inflection in his voice, that he was "quiet," and that the panel had to "prod" him for information. CP at 50-51. Unlike Smith and Adams, however, Bisson believed that Haley's grammar was "fine" and that his writing sample was "organized" and "easy to read." CP at 51. She gave Haley a passing score of "2" for integrity and commented that he had remained pretty "stoic" throughout the interview. CP at 52. Nevertheless, Adams' and Smith's negative votes caused Haley to fail his oral board; and he was again disqualified from consideration for promotion to deputy sheriff. As a result, Haley was again removed from the Deputy Sheriff Promotion Register.
C. Second Appeal to Civil Service Commission; Amended EEO Complaint
Haley appealed this disqualification by the oral board to the civil service commission, seeking reinstatement to the Deputy Sheriff Promotion Register. Pietz conducted a second investigation. CP at 784. Although she had past concerns about racial bias in the County's deputy sheriff hiring process, she had no "tangible evidence" of such bias; nor did she believe that such bias had affected Haley's promotion process. CP at 488. Finding no evidence of race discrimination, she declined to reinstate Haley to the County's Deputy Sheriff Promotion Register.
Haley filed an amended EEO complaint, alleging that his oral board panel had not been "'normal.'" CP at 539. An EEO investigator conducted another investigation and found potential evidence of retaliation:
Although [Haley] alleges that his oral board was not normal, there do[es] not appear to be clear indicators that race/color was involved. Nevertheless, it does appear that there was sufficient input into the panel's makeup by [Perry] that amounts to inappropriate involvement. . . . It is possible that retaliation was a conscious or unintended factor in selection of the panel members.CP at 615 (emphasis added). Based on irregularities in Haley's oral board panel's makeup, the EEO investigator recommended that Haley receive a new oral board interview with different panel members. The County followed this recommendation; Haley failed this new oral board, too.
On January 23, 2009, the County provided Haley with a new oral board. This new oral board panel had a "'more typical'" makeup, "'carefully crafted so that [Perry's] Background Unit [was] not involved.'" CP at 540. This time, Perry played no role in selecting the new oral board panelists: Lieutenant Larry Bauer (administrator), Detective/Sergeant Teresa Berg (supervisor), and Deputy Brian Anderson (peer). With the exception of Berg, who had some understanding that the County was "redoing" Haley's original oral board, the new oral board panel members knew nothing in advance about Haley or his EEO complaint. CP at 115.
Similar to the original oral board panel members, these new oral board panel members commented that Haley was "closed off," that he was not very "approachable," and that his writing sample was "clean" but had "minimal content." CP at 108, 150. Two of the three new board panel members scored Haley high enough in the first seven categories to receive the minimum 44 points necessary for a passing score and for promotion to deputy sheriff. But because all three panel members failed Haley in the eighth "integrity" category, he failed this new oral board. CP at 581.
III. Judicial Procedure
During the time Haley sought promotion to deputy sheriff and was rejected, the County had promoted seven other corrections officers to this position after passing their oral boards: five Caucasians, one African-American, and one Asian-American. The County's employment records and oral board interview notes contain the following information about these applicants, who had arguably comparable background deficiencies but whom the County nevertheless promoted to deputy sheriff:
"Deputy A," an African American, had been counseled about his use of sick leave when his grandmother was ill; he had been charged with theft/robbery (but not arrested) for taking a "dollar" and a skateboard when he was 15.
"Deputy B," a Caucasian, had helped a friend steal a $200 barbeque pit from Home Depot (his employer) in 2001 and admitted two instances of vandalizing as a juvenile and driving under the influence on four or five occasions; he described himself as "too quiet." His oral board panel members described him as "[un]approachable," not "flexible," having "rigid" responses and a "bad" or "very standard" writing sample, and appearing "truthful." He received an integrity score of "2" from all panel members.
"Deputy C," a Caucasian, had recently had a domestic violence restraining order filed against him by his wife; he admitted violating the restraining order and
contacting his wife, and taking pens and latex gloves from his previous employers. His oral board panel members described him as "soft spoken" or "shy," not having much "excitement in his voice," "approachable" and "friendly," appearing "honest," and having a "few spelling errors" in his writing sample. He received a score of "3" in integrity from all panel members.
"Deputy D," a Caucasian, had recently been "suspend[ed]" from the corrections department for inappropriate use of email, disciplined by corrections for not paying parking tickets, investigated by internal affairs for using excessive force on inmates, admitted abusing sick leave time, admitted shoplifting beef jerky when he was 16, and had been fired as King County "reserve officer" for being "too much of a liability" after he left his gun in his car and it was stolen.
Deputy D's oral board panel members described him as "approachable" and "friendly," having "good judgment" and "flexible thinking," having "no issues in the jail," appearing "truthful," and having "high morals and ethics" and a "well written" writing sample with a few "minor errors." He received integrity scores of "3" and "3.5" from the panel members, including a "3.5" in integrity from
Captain Smith (who had graded Haley harshly and given him a "0" for integrity).
CP at 184.
CP at 184, 205.
CP at 212, 216, 217, 220.
CP at 213, 217, 221.
CP at 252, 253, 258, 260.
CP at 254, 258, 262.
CP at 186, 267, 269.
CP at 308, 309, 313, 314.
CP at 86, 304, 309, 314.
Against this backdrop, Haley sued the County for race discrimination and retaliation under WLAD. The County moved for summary judgment, arguing that Haley could neither establish a "prima facie case" nor prove "pretext" for his race discrimination and retaliation claims. CP at 824, 831. The superior court granted summary judgment to the County and dismissed Haley's race discrimination and retaliation claims. Haley appeals.
Haley's complaint also alleged several other causes of action that are not part of this appeal, including: hostile work environment; disparate impact; negligence; negligent infliction of emotional distress; negligent hiring, retention, and supervision; and outrage. Although the superior court's summary judgment order is not clear about which claims it dismissed on summary judgment, we note that the County's summary judgment motion challenged all of Haley's causes of action; and the superior court appears either to have dismissed these claims before summary judgment or to have granted the County's summary judgment on them. Nevertheless, Haley appeals the superior's summary judgment dismissal of only his race discrimination (i.e., disparate treatment) and retaliation claims.
Haley argues that the superior court erred in granting summary judgment to the County on his race discrimination and retaliation claims, premised on the County's actions involving his background investigation and his original deputy sheriff promotion oral board. Haley asserts that for both claims he produced sufficient evidence to establish prima facie cases and to create a question of fact about whether the County's actions were pretextual. We agree.
I. Standard of Review
We review summary judgment orders de novo, performing the same inquiry as the superior court. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004). Summary judgment is appropriate only if the pleadings, affidavits, depositions, interrogatories, and admissions on file demonstrate an absence of any "genuine issue [of] material fact and . . . the moving party is entitled to a judgment as a matter of law." CR 56(c); Davis v. W. One Auto. Grp., 140 Wn. App. 449, 456, 166 P.3d 807 (2007). A material fact is "'one upon which the outcome of the litigation depends.'" Eriks v. Denver, 118 Wn.2d 451, 456, 824 P.2d 1207 (1992) (quoting Barrie v. Hosts of Am., Inc., 94 Wn.2d 640, 642, 618 P.2d 96 (1980)). When reviewing a summary judgment, we consider all facts submitted and all reasonable inferences from them in the light most favorable to the non-moving party. Marquis v. City of Spokane, 130 Wn.2d 97, 105, 922 P.2d 43 (1996). If there is a dispute about a material fact, then summary judgment is improper. Marquis, 130 Wn.2d at 105.
To defeat an employer's motion for summary judgment in an employment discrimination case, a plaintiff must "do more than express an opinion or make conclusory statements"; he must establish "specific and material facts" to support each element of his prima facie case. Marquis, 130 Wn.2d at 105. "Questions of fact may be determined as a matter of law only when reasonable minds could reach but one conclusion from them." Sherman v. State, 128 Wn.2d 164, 184, 905 P.2d 355 (1995) (emphasis added). Thus, "[s]ummary judgment in favor of the employer in a discrimination case is often inappropriate because the evidence will generally contain reasonable but competing inferences of both discrimination and nondiscrimination that must be resolved by a jury." Davis, 140 Wn. App. at 456 (citing Kuyper v. Dep't of Wildlife, 79 Wn. App. 732, 739, 904 P.2d 793 (1995)). Such is the case here.
II. Burden-Shifting Scheme
To evaluate summary judgment in employment discrimination cases under WLAD, Washington courts have largely adopted the federal burden-shifting scheme announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 180, 23 P.3d 440 (2001), overruled on other grounds by McClarty v. Totem Elec., 157 Wn.2d 214, 137 P.3d 844 (2006); Kirby v. City of Tacoma, 124 Wn. App. 454, 464, 98 P.3d 827 (2004), review denied, 154 Wn.2d 1007 (2005). Under the McDonnell Douglas burden-shifting scheme, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. Hill, 144 Wn.2d at 181.
At the summary judgment stage, however, a plaintiff's prima facie burden is not "onerous." The "'requisite degree of proof necessary to establish a prima facie case . . . is minimal and does not even need to rise to the level of a preponderance of the evidence.'" Fulton v. Dep't of Soc. & Health Servs., 169 Wn. App. 137, 152, 279 P.3d 500 (2012) (second emphasis added) (alteration in original) (quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994)). If the plaintiff succeeds in establishing a prima facie case of discrimination, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its adverse employment action. Hill, 144 Wn.2d at 181.
Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981); see also Johnson v. Dep't of Soc. & Health Servs., 80 Wn. App. 212, 227 n.21, 907 P.2d 1223 (1996).
If the employer then provides a legitimate, nondiscriminatory reason for its adverse employment action, the burden shifts back to the plaintiff to produce admissible evidence sufficient to create a triable issue of fact as to whether the employer's articulated reason was "pretext" for discrimination and whether that discrimination was, in fact, a substantial factor in its employment decision. Barker v. Advanced Silicon Materials, LLC, 131 Wn. App. 616, 624, 128 P.3d 633, review denied, 158 Wn.2d 1015 (2006). If the plaintiff fails to make this pretext showing, the employer is entitled to judgment as a matter of law. Hill, 144 Wn.2d at 182.
When applying the McDonnell Douglas three-part burden-shifting scheme, the court neither weighs evidence nor assesses witness credibility. Barker, 131 Wn. App. at 624. Rather, the court's "'job is to pass upon whether a burden of production has been met, not whether the evidence produced is persuasive. That is the jury's role, once a burden of production has been met.'" Barker, 131 Wn. App. at 624 (quoting Renz v. Spokane Eye Clinic, PS, 114 Wn. App. 611, 623, 60 P.3d 106 (2002)). We apply the McDonnell Douglas burden-shifting scheme to both Haley's race discrimination and retaliation claims in this appeal. Milligan v. Thompson, 110 Wn. App. 628, 638, 42 P.3d 418 (2002).
III. Race Discrimination Claim
Relying on the County's actions in his background investigation and his original oral board, Haley argues that summary judgment dismissal of his race discrimination claim was error because he presented a prima facie case and he produced evidence sufficient to raise a genuine issue of material fact about whether the County's reasons for denying him deputy sheriff promotion were pretextual. Construing the facts and inferences in the light most favorable to Haley, we agree.
A. Haley's Prima Facie Case
To prove a prima facie case of race discrimination under WLAD, a plaintiff must show that (1) he is a member of a racial minority; (2) he applied for and was qualified for an available job; (3) he was not offered the position; and (4) after his rejection, the position remained open and the employer continued to seek applicants from other persons with the plaintiff's qualifications. Hill, 144 Wn.2d at 181 (citing McDonnell Douglas, 411 U.S. at 802). The County does not dispute that Haley is a member of a racial minority, that he applied for an available promotion to deputy sheriff, and that it continued to seek applications from others with similar qualifications after it denied him the position. The County disputes only Haley's assertion that he was "qualified" for the position, arguing that he was "not qualified" because he failed to achieve a passing score on his original oral board. Br. of Resp't at 26, 27. Thus, we address only this second element of the prima facie case.
The County relies on a different articulation of the McDonnell Douglas prima facie case elements, one which we have used in age and gender discrimination cases and which requires the plaintiff to show that he was "replaced by a younger person" or by a person of the opposite sex. See Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 362, 753 P.2d 517 (1988) (age discrimination claims); Kuyper at 735 (age and gender discrimination claims). Based on the prima facie age and gender case elements in Grimwood and Kuyper, the County argues that Haley cannot establish a prima facie case of race discrimination because the County's having promoted another African-American around the same time that Haley sought promotion prevents his showing that the deputy sheriff position went to a person "outside [his] protected class." Br. of Resp't at 26 (emphasis omitted). Kuyper and Grimwood, however, did not involve race discrimination claims; nor did these cases explicitly require the plaintiff to show that the available position went to a person outside the plaintiff's "protected class" to establish a prima facie case. See e.g., Grimwood, 110 Wn.2d at 363 (replacement with a person outside the plaintiff's protected class not an "absolute" requirement under McDonnell Douglas). Because the County has cited no relevant authority extending the Kuyper and Grimwood prima facie case elements to race discrimination claims under WLAD, we do not further consider this argument. RAP 10.3(a)-(b); Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
Instead, we apply the standard race discrimination prima facie case elements that our Supreme Court set forth in Hill, which do not require Haley to show that the County promoted a person outside his protected class. Hill, 144 Wn.2d at 181. In so doing, we note that federal courts interpreting Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e have also repeatedly rejected employer arguments similar to the County's that hiring a person within the plaintiff's protected class defeats a plaintiff's prima facie case as a matter of law. See e.g., Diaz v. Am. Telephone & Telegraph, 752 F.2d 1356, 1359 (9th Cir. 1985) ("Under the traditional McDonnell Douglas test, the 'inference of discrimination' is not dependent upon an examination of who, if anyone, was promoted instead of the plaintiff. Ordinarily, the fourth element of McDonnell Douglas[ ] is met whenever the employer continues to consider other applicants whose qualifications are comparable to the plaintiff's after refusing to consider or rejecting the plaintiff.") (Emphasis added).
The County later argues that Haley failed to establish a prima facie case of retaliation because he also failed his new oral board in 2009. As we discuss later in this opinion, Haley's failure to pass his new oral board is arguably relevant to potential damages and remedy, but not to the County's liability for race discrimination and retaliation based on the alleged conduct by County employees in 2007.
To demonstrate that he was qualified for a job, at the prima facie stage a plaintiff need only present evidence from which a reasonable trier of fact could infer that he possessed the "'minimum qualifications'" for the position or that his qualifications were "comparable" to those of the person awarded the position. Lyons v. England, 307 F.3d 1092, 1114 (9th Cir. 2002). Although the record does not contain a job description or other objective criteria that the County used to evaluate deputy sheriff applicants, Haley produced sufficient evidence from which a reasonable trier of fact could conclude that he possessed the minimum qualifications for the position. Haley presented evidence that he had passed the physical agility test and the video and written exams; after he passed these tests, the County placed him on the register of applicants "to be considered" for promotion to deputy sheriff. CP at 538. A reasonable trier of fact, thus, could infer that these tests established the minimum qualifications for the deputy sheriff position.
Despite disqualifying Haley, the County promoted to deputy sheriff Caucasian applicants who, like Haley, had worked in the corrections facility, had juvenile indiscretions in their backgrounds, and had been similarly described by their oral board panelists as "[un]approachable," "shy," "rigid," and/or possessing poor writing skills. CP at 212, 220, 253. Construing the facts and inferences in the light most favorable to Haley, we conclude that he met his minimal prima facie burden of showing that he was qualified for the deputy sheriff position and, therefore, that he established a prima facie case of race discrimination justifying proceeding to the second stage of the McDonnell Douglas burden-shifting scheme.
The County offers no explanation for this apparent inconsistency in its oral board evaluations for these applicants. Instead, it contends that Haley was "not qualified" simply because his oral board panelists had subjectively determined, without clearly articulating why, that he lacked "integrity" and other vaguely-defined characteristics it deemed necessary to succeed as a deputy sheriff. Br. of Resp't at 11-12, 27, 30-32.
Accepting the County's minimallysupported qualifications argument, at least at this first, prima facie stage, could potentially shield employers from a limitless array of discriminatory conduct, contrary to the purpose of WLAD and the McDonnell Douglas burdenshifting scheme. Federal courts have generally analyzed such disputes over an employee's subjective qualifications at the second and third stages of the McDonnell Douglas burdenshifting scheme (employer's legitimate nondiscriminatory reason and pretext) to avoid putting too onerous a burden on the plaintiff in establishing a prima facie case. See e.g., Ezold v. Wolf, Block, Schorr & SolisCohen, 983 F.2d 509, 523 (3rd Cir. 1992), cert. denied, 510 U.S. 826 (1993). We, therefore, reject the County's argument that its later subjective evaluations of Haley during his oral board established that he lacked the minimum deputy sheriff qualifications necessary for him to establish his prima facie case for purposes of WLAD and the McDonnell Douglas burdenshifting scheme.
B. County's Non-Discriminatory Reasons
Because Haley established a prima facie case of race discrimination, the burden shifted to the County to articulate a legitimate, nondiscriminatory reason for its adverse employment action. Hill, 144 Wn.2d at 181. The County asserted two such reasons: (1) It initially disqualified Haley because Perry's Background Unit had a "good faith" belief that Haley's improper inmate welfare checks and other information in his personnel file posed serious performance concerns, which precluded him from consideration for promotion; and (2) Haley failed his original board because he had been involved in a juvenile gun incident and his panel members, again in "good faith," perceived him as unapproachable, rigid, not forthcoming or truthful, and as having poor writing skills. Br. of Resp't at 29.
Federal courts have held that an employer may rebut a plaintiff's prima facie case by showing it (1) "honestly believed" that the employee violated a work rule or (2) based its hiring decision on an "honest even though partially subjective" evaluation of the plaintiff's relative qualifications. Jones v. Gerwens, 874 F.2d 1534, 1540 (11th Cir. 1989); Lieberman v. Gant, 630 F.2d 60, 67 (2d Cir. 1980). An employer is even "entitled to be wrong in its judgment so long as it does not base its incorrect decision on unlawful . . . discrimination or stereotype." Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 547 n.38 (3rd Cir. 1992) (emphasis added), cert. denied, 510 U.S. 826 (1993).
Our Washington Supreme Court has rejected an employer's alleged good faith belief as a "complete defense" to a WLAD discrimination claim. Xieng v. Peoples Nat'l Bank, 120 Wn.2d 512, 523, 844 P.2d 389 (1993) (emphasis added). But the Court has not held that a good faith belief cannot serve as a legitimate, non-discriminatory reason for an employer's adverse employment action for purposes of the McDonnell Douglas burden-shifting scheme. See Xieng, 120 Wn.2d at 521-23. We conclude here that the County articulated a legitimate non-discriminatory reason for its adverse employment action. Thus, the burden shifted back to Haley to produce admissible evidence sufficient to create a triable issue of fact as to whether the County's reasons were mere pretext for unlawful discrimination. Barker, 131 Wn. App. at 624.
C. Genuine Issue of Fact for Pretext
A plaintiff can demonstrate pretext by showing that the employer's articulated reasons for the adverse employment action against him (1) had no basis in fact, (2) were not really the motivating factors for the employer's decision adversely affecting his employment, (3) lacked temporal connection to the employer's decision, or (4) were not used by the employer as motivating factors in its employment decisions affecting other similarly-situated employees. Kuyper, 79 Wn. App. at 738-39. To meet this burden, a plaintiff need not produce direct or "'smoking gun'" evidence; circumstantial, indirect, or inferential evidence is sufficient. Chen v. State, 86 Wn. App. 183, 190, 937 P.2d 612 (1997) (quoting Sellsted v. Washington Mut. Sav. Bank, 69 Wn. App. 852, 860, 851 P.2d 716 (1993), review denied, 122 Wn.2d 1018 (1993), overruled on other grounds by Mackay v. Acorn Custom Cabinetry, Inc., 127 Wn.2d 302, 310, 898 P.2d 284 (1995)). Showing that the employer's reasons conflict or presenting evidence that rebuts the employer's reasons' accuracy or believability is sufficient to create competing inferences of discrimination and nondiscrimination that the trial court cannot resolve on summary judgment. Renz, 114 Wn. App. at 624.
To demonstrate pretext, Haley argues that (1) the County treated Caucasian applicants for deputy sheriff more favorably than him—both in the background investigation and in the oral board context; (2) we should "carefully scrutinize" the County's deputy sheriff promotion system, which relied heavily on the "subjective judgments" of the Background Unit and oral board panelists, because such decisions can easily mask discrimination; (3) Perry, who had exhibited hostility against African Americans in the past and against Haley personally, selected the two panel members who failed Haley in his oral board, raising an inference that Perry could have influenced their board decisions or could have selected them because they shared his discriminatory animus; (4) other County employees perceived racial bias in the deputy sheriff promotion system; (5) statistical evidence suggests that the County discriminates against African Americans in hiring deputy sheriffs; and (6) this evidence combined is sufficient to create a genuine issue of material fact about the County's reasons for denying him a promotion. Br. of Appellant at 28. We agree.
Haley offered evidence that the County employs fewer African Americans in law enforcement than it does in corrections. As of June 29, 2009, for example, only 3.4 percent of the County's deputy sheriffs were African American, but 12.4 percent of its corrections officers were African American. Although statistics may be useful in disparate treatment cases, Haley's ability to prove the County's alleged discriminatory intent based on statistical evidence depends on his selection of the "proper labor pool." Sengupta v. Morrison-Knudsen Co., Inc., 804 F.2d 1072, 1075-76 (9th Cir. 1986). A court should generally judge an employment practice's impact on a protected class against the actual pool of employees affected by that practice. Sengupta, 804 F.2d at 1076.
Here, the relevant labor pool would have been the number of African American corrections officers, who, like Haley, applied and were rejected from promotion to deputy sheriff, not merely the current demographic makeup of the County's corrections and law enforcement departments, on which Haley's proffered statistical evidence focused. Accordingly, we do not consider this evidence as part of his pretext argument.
Haley produced evidence that Perry supervised the Background Unit and that Perry had made offensive remarks both about African Americans generally and about Haley specifically. Perry's Background Unit repeatedly disqualified Haley from consideration for promotion during his background investigation, asserting suspicious "performance" concerns. The Background Unit also persisted in asserting "performance" concerns even after learning that the jail's independent investigation had determined that Haley's improper inmate welfare checks were a training issue that should not have been considered in the deputy sheriff promotion process. As we describe more fully below, the Background Unit's stated reasons for Haley's second disqualification, such as misusing sick leave time or leaving his gun at home on one occasion, were apparently ignored or were not material reasons preventing Caucasian corrections officers from being promoted to deputy sheriff.
Haley also produced evidence to cast doubt on his original oral board's neutrality and its reasons for failing him and denying him a promotion. In particular, he presented evidence that Perry, who had previously exhibited racial animus toward African Americans in general and had made offensive remarks about Haley in particular, influenced the makeup of this oral board. This original oral board panel was "highly unusual" in that it comprised three high-level administrators, rather than the typical peer-supervisor-administrator structure. CP at 611. Bisson, the lone panel member whom Perry did not select, passed Haley on both portions of his original oral board (i.e., the first seven categories and the critical eighth category, "integrity").. In contrast, Smith and Adams, the two panel members whom Perry had selected, failed Haley on both portions; and they scored him particularly harshly for the last and most heavily-weighted category, "integrity"—with Smith giving Haley a "0" in this category.
Smith's giving Haley a "0" score for integrity contrasted with the much higher scores Smith gave to Caucasian applicants like Deputy D, who exhibited background facts and characteristics seemingly comparable to (or worse than) those Smith articulated for disqualifying African American Haley but, which in Smith's view, did not similarly disqualify Caucasian Deputy D. For example, Deputy D (1) had been investigated for using excessive force on inmates in the jail, (2) had been disciplined for inappropriate use of email and for not paying parking tickets, (3) had abused sick leave time, (4) had shoplifted at age 16, and (5) had been fired as a King County "reserve officer" for being "too much of a liability" when he left his gun in his car and the gun was stolen. CP at 267. Despite these questionable aspects of Deputy D's background, Smith gave Deputy D a "3.5" in integrity, a near perfect score. CP at 304.
Smith also gave Haley a combined score of "20" points total in the first seven categories, which was more than 20 points lower than the "45.5" passing score that Bisson gave Haley. Compare CP at 50-52, 84-86. At the very least, Perry's involvement in the selection of oral board panelists Smith and Adams created an inference that Smith and Adams may have evaluated Haley unduly harshly as Perry had intended. Based on the record before us, it is not otherwise clear how Smith and Adams derived their conclusions that Haley lacked integrity or was deficient in any of the other categories in which they evaluated him.
Adams, the County's legal advisor, did not serve on the oral boards of any of the other deputy sheriff applicants whose employment files are included in the record; so comparative evidence is not available for him. Nor it is not clear whether Adams regularly served on oral boards.
The record does show, however, that (1) Haley's juvenile gun incident was not an automatic disqualifier from deputy sheriff promotion, as Smith claimed; (2) the County promoted otherwise arguably similar Caucasian applicants who, like Haley, had misused sick leave time, had left their guns at home or in their car on an isolated occasion, and were described as "quiet," "unapproachable," "rigid," and as having a poor writing sample by their oral board panel members; and (3) Haley's jail supervisors, who worked closely with him, emphatically reported that they had never doubted his integrity. Haley's supervisors' positive reports about his integrity, based on their having worked with him in the jail, were in stark contrast to Smith's and Adams' flat assessment that Haley lacked integrity. This evidence casts doubt on the County's articulated reasons for having denied Haley a deputy sheriff promotion following the original oral board; and it requires credibility determinations that the superior court cannot determine on summary judgment and we cannot make on appeal.
CP at 212, 220, 253.
When asked whether they had ever questioned Haley's integrity, (1) James-Hutchinson replied, "No"; (2) Schultz responded, "[F]lat out, no"; and (3) Sergeant Bruce Cary explained that he had "never even thought about [lack of integrity] in relation to [Haley]." CP at 676, 705, 720.
Considering the facts and inferences in the light most favorable to Haley, as we must in reviewing a summary judgment, we hold that (1) he met his burden of producing evidence sufficient to create a genuine issue of material fact about whether the County's reasons for denying him a promotion were pretext for racial discrimination, and (2) the superior court erred in granting the County summary judgment on this claim.
IV. Retaliation Claim
Again, relying on the County's actions during his background investigation and his original oral board, Haley argues that summary judgment for the County on his retaliation claim was also error because he presented a prima facie case of retaliation, and he produced sufficient evidence to create a question of fact about whether the County's actions were pretextual. For many of the same reasons discussed above, we agree.
A. Haley's Prima Facie Case
WLAD forbids an employer to discharge or otherwise to discriminate against an employee in retaliation for "oppos[ing] any practices forbidden by this chapter" or for filing a charge, testifying, or assisting in a discrimination proceeding. RCW 49.60.210(1); see also Milligan, 110 Wn. App. at 638. To establish a prima facie retaliation case, a plaintiff must show that (1) he engaged in a statutorily protected activity, (2) his employer took adverse employment action against him, and (3) there was a causal link between the activity and the adverse employment action. Milligan, 110 Wn. App. at 638. Haley met this burden here.
1. Statutorily protected activity
To prove a statutorily protected activity, a plaintiff need not show that his employer's challenged conduct was unlawful under WLAD. Renz, 114 Wn. App. 619. On the contrary, "'[a]n employee who opposes employment practices reasonably believed to be discriminatory is protected by the 'opposition clause' whether or not the practice is actually discriminatory.'" Renz, 114 Wn. App. at 619 (emphasis added) (internal quotation marks omitted) (quoting Graves v. Dep't of Game, 76 Wn. App. 705, 712, 887 P.2d 424 (1994)). Haley engaged in a statutorily protected activity when he appealed his deputy sheriff promotion disqualifications to the civil service commission and when he filed his first EEO complaint based on his reasonable belief that racially discriminatory reasons motivated the County's actions. See RCW 49.60.210(1).
Because this element requires only that an employee have an "objectively reasonable belief" that his employer's conduct was unlawful, Haley could arguably prevail on his retaliation claim even if he cannot sustain his race discrimination claim at trial. See Ellis v. City of Seattle, 142 Wn.2d 450, 460, 13 P.3d 1065 (2000); Renz, 114 Wn. App. at 619.
The County argues that, because it had promoted another African American to deputy sheriff "a month or two" before Haley filed his first EEO complaint, Haley cannot show that he "reasonably believed" the County disqualified him from promotion based on race discrimination. Br. of Resp't at 38. Contrary to the County's argument, however, the record does not state when the County promoted the other African American to deputy sheriff or who was involved in this other applicant's background investigation. Furthermore, even if the record contained such evidence, it does not show that Haley knew the County had promoted another African American around the time he filed his complaint; thus, this potential evidence bears little on the "reasonableness" of Haley's beliefs.
See also Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006) (interpreting analogous retaliation provision in Title VII of the Civil Rights Act of 1964 as prohibiting employer actions that are likely to deter discrimination victims from complaining to the Equal Employment Opportunity Commission, the courts, and their employers).
2. Adverse employment action
Under WLAD an "adverse employment action" may include any tangible change in employment status, such as "'hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'" Crownover v. Dep't of Transp., 165 Wn. App. 131, 148, 265 P.3d 971 (2011) (emphasis added) (quoting Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 761, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998)), review denied, 173 Wn.2d 1030 (2012). Federal courts interpreting analogous provisions of Title VII of the Civil Rights Act of 1964 have also recognized that an adverse employment action is broader in the retaliation context than in the discrimination context because the retaliation provision's protections extend to any employer action that "well might have 'dissuaded a reasonable worker from making or supporting a charge of discrimination.'" Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006) (internal quotation marks omitted) (quoting Rochon v. Gonzalez, 370 U.S. App. D.C. 74, 438 F.3d 1211, 1219 (2006)). We find this analysis persuasive here.
Because the primary purpose of Title VII's retaliation provision is to maintain an employee's "'unfettered access to the statutory remedial mechanisms,'" this provision potentially covers more employer actions than the statute's antidiscrimination provision. Burlington Northern, 548 U.S. at 64 (emphasis added) (quoting Robinson v. Shell Oil Co., 519 U.S. 337, 346, 117 S. Ct. 843, 136 L. Ed. 2d 808 (1997)).
Although federal discrimination cases are not binding on this court, they are persuasive and we may adopt their analyses "where they further the purposes and mandates of state law." Antonius v. King County, 153 Wn.2d 256, 266, 103 P.3d 729 (2004).
Less than three weeks after Haley filed his EEO complaint and after the jail had concluded that his improperly performed inmate welfare checks were a "training issue" that should not be considered in the deputy sheriff promotion process, Perry's Background Unit took an unusual step at that point in the process: They dug more deeply into Haley's background and disqualified him a second time for seemingly disingenuous reasons, which reasons had not led to disqualification of similarly qualified Caucasian applicants. CP at 751. When Haley was reinstated to the Deputy Sheriff Promotion Register, the Background Unit then scheduled Haley for a "highly unusual" oral board with three high-level administrators, at least one of whom knew about his EEO complaint, and two of whom Perry had selected and who ultimately failed Haley. CP at 611. Construed in the light most favorable to Haley, these County actions might have dissuaded a reasonable worker from making or supporting a charge of racial discrimination.
The County's actions, both in disqualifying Haley at the background check level and in the oral board context, also removed Haley from the Deputy Sheriff Promotion Register and terminated his consideration for promotion. We therefore conclude that these actions constituted adverse employment action by the County for McDonnell Douglas burden-shifting purposes.
3. Causal link between protected activity and adverse action
Haley next had to produce evidence of causation. To establish causation at the prima facie stage, a plaintiff must demonstrate that retaliation was a "substantial factor" motivating the employer's adverse employment action; he need not show, however, that retaliation was the sole or principal motivation. Burchfiel v. Boeing Corp., 149 Wn. App. 468, 482, 205 P.3d 145, review denied, 166 Wn.2d 1038 (2009); Renz, 114 Wn. App. at 621. "A factor supporting the [employer's] decision is 'substantial if it so much as 'tips the scales one way or the other.'" Renz, 114 Wn. App. at 621 (internal quotation marks omitted) (quoting Rowe v. Vaagen Bros. Lumber, Inc., 100 Wn. App. 268, 277, 996 P.2d 1103 (2000)). Such is the case here.
Because employers rarely openly reveal that retaliation was a motive for adverse employment action, a plaintiff may rely on circumstantial evidence to show retaliatory purpose. Renz, 114 Wn. App. at 621. Thus, close "[p]roximity in time between the adverse [employment] action and the protected activity, along with evidence of satisfactory work performance, suggests an improper motive." Campbell v. State, 129 Wn. App. 10, 23, 118 P.3d 888 (2005), review denied, 157 Wn.2d 1002 (2006). Furthermore, if an employee establishes that he participated in an opposition activity, that the employer knew of the opposition activity, and that the employer still took adverse action against the employee, then the employee creates a rebuttable presumption of retaliation that precludes a court from dismissing the employee's case. Estevez v. Faculty Club of the Univ. of Wash., 129 Wn. App. 774, 799, 120 P.3d 579 (2005).
Haley presented evidence that (1) his jail supervisors believed he was performing satisfactorily, despite the Background Unit's repeatedly disqualifying him from consideration for promotion to deputy sheriff; (2) Perry had been openly hostile toward African American employees in the past for complaining about race discrimination and had made offensive remarks about Haley in particular after he complained of race discrimination and filed a formal EEO complaint; (3) less than three weeks after Haley filed his EEO complaint, Perry's Background Unit disqualified Haley a second time, eventually removing him "for cause" from the Deputy Sheriff Promotion Register; and (4) shortly after Civil Service Chief Examiner Pietz found insufficient reasons for the Background Unit's repeated disqualifications of Haley and reinstated him to the Deputy Sheriff Promotion Register, Perry selected the two panel members for Haley's "highly unusual" original oral board (Smith and Adams) who subsequently failed him for reasons that had not caused them to fail other deputy sheriff applicants. CP at 611, 613. According to Perry, Adams, at least, knew about Haley's EEO complaint, even if Smith did not. Construing the facts and inferences in the light most favorable to Haley, we conclude that he satisfied the causal link element of his prima facie retaliation case.
Perry was openly hostile in particular against Haley for filing a race discrimination complaint. For example, after Haley's EEO complaint resulted in his reinstatement to the Deputy Sheriff Promotion Register, Perry had called Haley a "punk," referred to his EEO complaint as "despicable" and "extremely, extremely offensive," and stated that Haley wasn't "doing himself any favors" by complaining about race discrimination. CP at 766, 767, 768.
B. Legitimate Non-Retaliatory Reason
The County asserts that the two reasons it alleged to rebut Haley's race discrimination claim also constitute legitimate non-retaliatory reasons for its adverse employment action against Haley: (1) that Perry disqualified Haley based on Perry's "good faith" belief that Haley had serious performance issues in his background, and (2) that Haley failed his oral board because the board members believed that he lacked the subjective skills and characteristics that the County deemed necessary to perform well as a deputy sheriff. Br. of Resp't at 29. For the same reasons we explained above, we conclude that the County met its burden of producing a legitimate, non-retaliatory reason for its adverse employment action. The burden, thus, shifted back to Haley to produce admissible evidence sufficient to create a triable issue of fact as to whether the County's reasons were pretext for retaliation. Barker, 131 Wn. App. at 624; Renz, 114 Wn. App. at 619.
C. Genuine Issue of Material Fact for Pretext
Again, a plaintiff can demonstrate pretext by showing that the employer's articulated reasons had no basis in fact, were not the real motivating factors for its adverse employment decision, lacked temporal connection to the employer's decision, or were not used by the employer as motivating factors in its employment decisions affecting other similarly-situated employees. Kuyper, 79 Wn. App. at 738. Although the plaintiff retains the ultimate burden of persuasion at trial, his "task at the summary judgment stage is limited to showing that a reasonable trier of fact could, but not necessarily would, draw the inference that [retaliation] was a [substantial factor] in the decision." Sellsted v. Wash. Mut. Sav. Bank, 69 Wn. App. 852, 860, 851 P.2d 716 (emphasis added), review denied, 122 Wn.2d 1018 (1993), overruled on other grounds by Mackay v. Acorn Custom Cabinetry, Inc., 127 Wn.2d 302, 310, 898 P.2d 284 (1995). Showing that the employer's reasons conflict or that there is evidence rebutting the reasons' accuracy or believability is sufficient to create competing inferences of retaliation and non-retaliation, which cannot be resolved on summary judgment. Renz, 114 Wn. App. at 624.
Haley produced the following evidence to discredit the Background Unit's "good faith" stated belief that there were "performance" reasons for disqualifying him from deputy sheriff promotion and to demonstrate that these "performance" reasons were pretext for a retaliatory purpose. As we have already described, Perry had previously been hostile toward African Americans for filing race discrimination complaints. Perry's Background Unit had conducted a relatively cursory investigation into Haley's allegedly "falsified" inmate welfare checks: The Unit held a single phone conference with one person from the jail (Schultz), who allegedly later "changed his [story]" about the severity of the improper jail inmate welfare checks, before initially disqualifying Haley from promotion consideration. CP at 751. After learning that the jail had exonerated Haley of any blame for his improperly performed inmate welfare checks and had concluded that they were a "training issue" and not a serious concern, the Background Unit nevertheless prematurely dug more deeply into Haley's background and found other arguably specious reasons to disqualify him. CP at 751.
CP at 750.
Haley also produced evidence that, after he filed his EEO complaint alleging race discrimination, Perry yelled at him on the phone, called him derogatory names, stated that his EEO complaint was "despicable" and "extremely, extremely offensive," asserted that he wasn't "doing himself any favors" by complaining, and declared that he (Perry) was going to "have somebody's *ss." CP at 667, 767, 768. Perry's Background Unit then raised other allegedly serious performance-related reasons for disqualifying Haley from promotion, including that (1) his initial field training program had been extended after he had suffered a leg injury and had temporarily failed to respond to training in some areas, (2) he had been counseled for misusing sick time, and (3) he had left his gun at home on one occasion. Like the investigation into Haley's jail inmate welfare checks, the Background Unit did not consult with Haley's jail supervisor, James-Hutchinson, about the severity of this conduct or its impact on the jail before disqualifying Haley from promotion consideration a second time.
In contrast, the Background Unit ignored similar conduct when evaluating, and promoting, "Deputy D" and other deputy sheriff applicants who, also in contrast with Haley, had not complained of race discrimination. Furthermore, Civil Service Chief Examiner Pietz found insufficient evidence for the County Background Unit's disqualifications of Haley and placed him back on the Deputy Sheriff Promotion Register.
Haley also provided evidence that his oral board's actions may have been retaliatory. Rather than giving Haley a traditional oral board composed of one peer, one supervisor, and one administrator, the County deviated from its normal procedures and scheduled Haley for a "highly unusual" oral board comprising three high-level administrators—two of whom Perry selected and at least one of whom (Adams) knew about Haley's racial discrimination complaint. CP at 611. The two board members selected by Perry failed Haley while Bisson passed him. Perry's involvement in the selection of this panel, coupled with his previous hostility toward Haley and toward African Americans who file race discrimination claims, create an inference that this original oral board may have acted in retaliation to Haley's racial discrimination complaint when it failed him and removed him from the Deputy Sheriff Promotion Register.
Again, when reviewing a summary judgment, we do not weigh evidence or assess witness credibility; instead, we decide only whether alternating burdens of production have been met. Barker, 131 Wn. App. at 624. Construing the facts and inferences in the light most favorable to Haley, we hold that he produced evidence sufficient to raise a genuine issue of material fact about whether the Background Unit's reasons for disqualifying him after he filed his EEO complaint and whether the original oral board's (especially Smith's and Adams') reasons for failing him were a pretext for retaliating against Haley for having filed a race discrimination complaint. We, therefore, hold that the superior court erred in granting the County summary judgment on Haley's retaliation claim.
V. Significance of New Oral Board Recommended by EEO
The parties have offered different interpretations about the legal significance of the County's providing Haley with a new oral board, as recommended by the EEO investigator. Although this new oral board is not a basis for Haley's claims of discrimination or retaliation by the County, it may become pertinent to the issue of damages or some other remedy in the event that Haley prevails on either or both of his claims at trial on remand. Therefore, we take this opportunity to clarify the applicable law as we perceive it based on the current posture of this case.
As we have previously explained, Haley based his race discrimination and retaliation claims on the County's actions leading up to and concluding with his original oral board—i.e., the Background Unit's repeatedly disqualifying him during his background investigation and the original oral board's failing him in 2007. In 2009, more than a year after Haley filed his initial race discrimination and retaliation EEO complaints, the County "voluntarily afforded [Haley] the opportunity" to sit for a new oral board, to which he agreed. Br. of Resp't at 31. This new oral board comprised three panel members, none of whom Perry selected or had participated in Haley's original oral board. These panelists interviewed Haley, independently determined that he lacked the "integrity" necessary to become a deputy sheriff, and failed him, essentially for this reason alone. CP at 581.
In its brief of respondent, the County lists a number of temperament-based factors for which the new oral board failed Haley. Nevertheless, we note that (1) he achieved a high enough score to pass in the first seven categories of his new oral board, and (2) he failed this new oral board only because all three panelists failed him in the eighth category, "integrity." See Br. of Resp't at 32; CP at 581. Thus, Haley's failing his new oral board appears to have been based essentially on a unanimous determination that he lacked integrity.
In its respondent's brief, the County argues that Haley's failing his new 2009 oral board (1) "conclusively demonstrates" that he had failed his original 2007 oral board because he lacked the "necessary attributes to perform well as a deputy sheriff," and (2) thereby suggests that race discrimination and retaliation were not motives influencing the original 2007 oral board's actions. Br. of Resp't at 42. We find this argument unpersuasive and contrary to the law.
Again, we note that the new oral board comprised panel members who differed from the members of Haley's original oral board, whom Perry had selected. The new oral board panel members evaluated Haley more than a year after his original oral board and under a different set of circumstances. The new oral board's subjective judgments about Haley, therefore, do not conclusively establish that race discrimination and/or retaliation were or were not impermissible motives influencing the original oral board's failure-to-promote decision, which together with the Background Unit's repeatedly disqualifying Haley are the basis for the County's potential liability in the action before us here.
This legal conclusion does not, however, mean that the results of Haley's new oral board are irrelevant for purposes of determining the County's measure of damages, or other remedy, if Haley successfully proves his race discrimination and/or retaliation claims at trial on remand. As the Ninth Circuit Court of Appeals has explained, "[T]he question of appropriate remedy is distinct from the question [of] whether there was intentional discrimination." Muntin v. State of Cal. Parks & Recreation Dep't, 671 F.2d 360, 363 (9th Cir. 1982). The employer has the burden of proof on the issue of appropriate remedy, which cannot be allocated to the employee plaintiff. Muntin, 671 F.2d at 363. But "the law does not contemplate an award of [back pay] to a plaintiff who, though qualified, would not have been hired or promoted even in the absence of proven discrimination." Muntin, 671 F.2d at 363. Thus, the County's explanations for failing Haley on his new oral board "are relevant on the issue of appropriate remedy, even though they cannot rebut the proof of discrimination" and/or retaliation that Haley may prove motivated the County's repeated disqualifications of him at the Background Unit level and in his original oral board failure. Muntin, 671 F.2d at 363 (emphasis added).
Our Washington Supreme Court has adopted the federal courts' standard for determining an employer's liability for back pay damages in such situations. In Davis v. Dep't of Labor & Indus., 94 Wn.2d 119, 127, 615 P.2d 1279 (1980), the Court held that, after a factfinder determines that discrimination has occurred, the employer can avoid back pay damages only if it can prove by "clear and convincing evidence" that the employee would not have been promoted even absent the discrimination. Davis, 94 Wn.2d at 125-27. Federal courts have also used this standard as a basis for rejecting an employee's retroactive appointment or promotion to a desired position. See Muntin, 671 F.2d at 363.
In Davis, the Supreme Court carefully noted, however, that, if a court has any doubts about an employer's liability for back pay damages, it should resolve these doubts against the employer. Davis, 94 Wn.2d at 127.
If Haley is ultimately successful at trial on his race discrimination and/or retaliation claims, premised on the facts leading up to and including his original 2007 oral board, under Davis and Muntin, the County may be able to avoid liability for back pay damages and/or avoid promoting Haley retroactively. To avoid such liability, the County would need to prove by clear and convincing evidence that it would have reached the same decision not to promote Haley even if discrimination and/or retaliation had not played a role in the Background Unit's and the original oral board's earlier promotion disqualification decisions.
Nevertheless, such a finding likely would not allow the County to avoid liability altogether for its 2007 actions; nor would it negate the County's initial acts of discrimination and/or retaliation, as the County suggests. Instead, it would likely allow the County to lessen its liability for certain types of damages or other remedies.
Although we acknowledge the potential legal significance of Haley's new oral board failure, at this juncture we can neither apply the Davis and Muntin rules nor determine the measure of damages or other remedy for which the County may ultimately be found liable. This is so because there has not yet been a trial on Haley's claims or a jury finding that the County (1) actually discriminated and/or retaliated against Haley, based on the Background Unit's and/or on the original oral board's actions; or (2) proved by clear and convincing evidence that the County would have reached the same refusal-to-promote decision even in the absence of the Background Unit's and/or the original oral board's race discrimination or retaliation against Haley. Instead, we note merely that the new oral board's findings provide potential factual issues and legal arguments for the parties to make at trial on remand.
We reverse the superior court's summary judgment dismissal of Haley's race discrimination and retaliation claims against the County and remand both claims for trial.
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 in accordance with RCW 2.06.040, it is so ordered.
I concur: _______________
Quinn-Brintnall, J. (concurring in the result) — When reviewing a decision on summary judgment, we weigh all facts and any reasonable inferences in favor of the nonmoving party. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005) (citing Atherton Condo. Apartment-Owners Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990)). But we do not weigh evidence or assess witness credibility. Biggers v. City of Bainbridge Island, 162 Wn.2d 683, 693, 169 P.3d 14 (2007). We decide only whether the nonmoving party has demonstrated a genuine issue of material fact. Tennyson v. Plum Creek Timber Co., 73 Wn. App. 550, 568, 872 P.2d 524 (Kennedy, J., dissenting in part) ("The point is, it is not our task to weigh the evidence, but only to determine whether it raises genuine issues of material fact."), review denied, 124 Wn.2d 1029 (1994).
Here, Jason Haley presented evidence consistent with racial discrimination and retaliation. Pierce County countered with evidence that it acted in good faith or with cause in declining to promote Haley from corrections officer to deputy sheriff. In addition, the County presented evidence that it provided Haley with a second, neutral oral board which Haley also failed. The County argues that Haley's failure of the second oral board demonstrates that racial discrimination was not the cause of Haley failing the first oral board. Haley does not raise any challenges to the neutrality of the second oral board. Because the evidence presented by both parties raises competing inferences about whether racial discrimination was the cause of Haley's failure to receive a promotion, there is a genuine issue of material fact which precludes summary judgment. See Hollenback v. Shriners Hosps. for Children, 149 Wn. App. 810, 825, 206 P.3d 337 (2009) (In a case for wrongful termination based on retaliation for engaging in an activity protected under the Washington Law Against Discrimination, ch. 49.60 RCW, summary judgment is inappropriate when "there are competing inferences as to whether [the plaintiff's] participation in the protected activity caused her termination.").
Whether evidence of the second oral board is relevant on the issue of causation or only relevant to the issue of damages is a determination I would leave to the trial court which can evaluate any relevance in light of all the evidence presented at trial.
Accordingly, I concur with the majority result that remand for trial is required.