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Ninth Circuit: Corporations & Section 1981 Claims

By Gregory Williams, Esq. | Under §1981, may corporations raise race discrimination claims in the Ninth Circuit? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

DOMINO’S PIZZA, INC. v. MCDONALD

The U.S. Supreme Court in Domino’s Pizza, Inc. v. McDonald ruled as follows:

Since [the single-shareholder corporation] settled its claims and is not involved in this case, we have no occasion to determine whether, as a corporation, it could have brought suit under §1981. We note, however, that the Courts of Appeals to have considered the issue have concluded that corporations may raise §1981 claims.

Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, n. 1, 126 S.Ct. 1246, 163 L.Ed.2d 1069 (2006) (referencing, e.g., Hudson Valley Freedom Theater, Inc. v. Heimbach, 671 F.2d 702, 706 (C.A.2 1982)) (emphasis added).

STAUTORY CONTEXTS

In various statutory contexts, several circuits have concluded that corporations have standing to assert race discrimination claims. See, e.g., Thinket Ink Info. Res., Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1060 (9th Cir. 2004) (Section 1981 claim); Oti Kaga, Inc. v. S.D. Hous. Dev. Auth., 342 F.3d 871, 882 (8th Cir. 2003) (Fair Housing Act claims); Guides, Ltd. v. Yarmouth Grp. Prop. Mgmt., Inc., 295 F.3d 1065, 1072 (10th Cir. 2002) (Sections 1981 and 1982 claims); Gersman v. Group Health Ass’n, 931 F.2d 1565, 1568, 289 U.S. App. D.C. 332 (D.C. Cir. 1991) (Section 1981 claim), vacated on other grounds, 502 U.S. 1068, 112 S.Ct. 960, 117 L.Ed.2d 127 (1992); Triad Assocs., Inc. v. Chi. Hous. Auth., 892 F.2d 583, 591 (7th Cir. 1989) (Section 1983 claim), abrogated on other grounds, Bd. of Cnty. Comm’rs v. Umbehr, 518 U.S. 668, 116 S.Ct. 2342, 135 L.Ed.2d 843 (1996); Hudson Valley Freedom Theater, Inc. v. Heimbach, 671 F.2d 702, 706 (2d Cir. 1982) (Title VI claim); Des Vergnes v. Seekonk Water Dist., 601 F.2d 9, 13-14 (1st Cir. 1979) (Section 1981 claim).

THE NINTH CIRCUIT

Particularly, the Ninth Circuit has found that “when a corporation has acquired a racial identity, either as a matter of law or by imputation, then it can be the direct target of discrimination and has standing to pursue a claim under § 1981.” Thinket Ink Information Resources, Inc. v. Sun Microsystems, Inc., 368 F.3d 1053, 1059 (9th Cir. 2004) (emphasis added).

PLAIN LANGUAGE OF § 1981

Further, the plain language of the statute may allow a corporation to have standing. For example, Title VI does not specifically define “person,” but the Dictionary Act does: “In determining the meaning of any Act of Congress, unless the context indicates otherwise, the word person includes corporations.” Carnell Constr. Corp. v. Danville Redevelopment & Hous. Auth., 745 F.3d 703, n. 4 (4th Cir. 2014) (citing 1 U.S.C. § 1) (internal quotation marks omitted).

Moreover, § 2000d prohibits a “person” from being discriminated against on the ground of race, color, or national origin; not on the ground of his or her race, color, or national origin.” Id. (see Hudson Valley Freedom Theater, Inc. v. Heimbach, 671 F.2d 702, 705 (2d Cir. 1982) (observing the same); see also Mohamad v. Palestinian Auth., 132 S.Ct. 1702, 1707-08, 182 L.Ed.2d 720 (2012) (observing that Congress often uses the word “individual” to mean something different from its use of the word “person” )) (emphasis added) (internal quotation marks omitted).

CONCLUSION

Thus, it seems that in the Ninth Circuit, corporations may raise race discrimination claims under §1981 when the corporation has acquired a racial identity.

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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Section 1981: Pretext & Discriminatory Remarks

By Gregory Williams, Esq. | Under Section 1981–and within the context of employment–may a plaintiff establish pretext by way of evidence of discriminatory remarks? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

MCDONNELL DOUGLAS ANALYSIS

This article will address the case in which only circumstantial evidence, as opposed to direct evidence, is offered to prove discrimination. Accordingly, in order to evaluate claims of intentional discrimination under Section 1981, where intent itself is generally impossible to prove, courts apply a burden-shifting analysis (hereinafter, “McDonnell Douglas Analysis”). Lindsey v. SLT Los Angeles, LLC, 447 F.3d 1138, 1144 (9th Cir. 2005) (referencing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Patterson v. McLean Credit Union, 491 U.S. 164, 186, 109 S.Ct. 2363, 105 L.Ed.2d 132 (1989), superseded by statute on other grounds, Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071).

Under McDonnell Douglas–and within the context of a Section 1981 claim–if the plaintiff satisfies the initial burden of establishing a prima facie case of racial discrimination, the burden shifts to the defendant to prove it had a legitimate non-discriminatory reason for the adverse action. Id. If the defendant meets that burden, the plaintiff must prove that such a reason was merely a pretext for intentional discrimination. Id. (internal citation omitted). The proof required to establish a prima facie case is “minimal and does not even need to rise to the level of a preponderance of the evidence.” Id. at 1144-45 (internal citation omitted).

PROVING PRETEXT

If the defendant meets its burden to produce a legitimate non-discriminatory reason, the plaintiff must persuade the jury that the defendant’s stated reason was merely a pretext for race discrimination, or in some other way prove it is more likely than not that race motivated the employer. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981).

EVIDENCE OF DISCRIMINATORY REMARKS

Evidence of discriminatory remarks may create an inference of discriminatory motive. See Warren v. City of Carlsbad, 58 F.3d 439, 443 (9th Cir.1995), cert. denied, 116 S.Ct. 1261 (1996); see also Lindahl v. Air France, 930 F.2d 1434, 1439 (9th Cir.1991). To establish pretext, there must be a sufficient nexus between the alleged discriminatory remarks and the adverse employment decision. Dehorney v. Bank of America, 879 F.2d 459, 468 (9th Cir.1989).

However, even if there is no nexus to the adverse employment decision, such that the remarks themselves are insufficient to withstand summary judgment, the remarks are still relevant evidence that, along with other evidence, may create a strong inference of intentional discrimination. Mangold v. California Pub. Util. Comm’n., 67 F.3d 1470, 1477 (9th Cir.1995). Bigoted remarks by a member of senior management may tend to show discrimination, even if directed at someone other than the plaintiff. Metoyer v. Chassman, 504 F.3d 919, 937 (9th Cir. 2007) (citing Cordova v. State Farm Ins. Cos., 124 F.3d 1145, 1149 (9th Cir. 1997)). Furthermore, remarks by such a decisionmaker tend to show bias, even if several years old. Id (referencing Mustafa v. Clark County School Dist., 157 F.3d 1169, 1179-80 (9th Cir. 1998)).

CONCLUSION

Thus, I believe that a Section-1981 plaintiff may establish pretext by way of evidence of discriminatory remarks, and such remarks may also be sued to create a strong inference of intentional discrimination.

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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National Bank Act Preemption & Title VII

By Gregory Williams, Esq. | Within the 9th Circuit, does the National Bank Act preempt Title VII of the Civil Rights Act of 1964? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

NATIONAL BANK ACT

The National Bank Act provides, inter alia, that a national bank shall have the power “to elect or appoint directors, and by its board of directors to appoint a president, vice president, cashier, and other officers, define their duties, require bonds of them and fix the penalty thereof, dismiss such officers or any of them at pleasure, and appoint others to fill their places.” 12 U.S.C. § 24(Fifth) (emphasis added). This is also known as the “at-pleasure provision” of § 24(Fifth) that is part of the scheme of federal laws governing the duties and powers of federally chartered banks. Thus, as a threshold matter, a federally chartered bank seeking to utilize the at-pleasure provision to preempt an employee’s claims for relief under other laws must first show that the employee was (1) appointed by the board of directors, (2) terminated by the board of directors, and (3) an officer.

POLICY BEHIND THE ACT

The purpose of the at-pleasure provision can be explained as follows:

Observation and experience alike teach that it is essential to the safety and prosperity of banking institutions that the active officers, to whose integrity and discretion the moneys and property of the bank and its customers are intrusted, should be subject to immediate removal whenever the suspicion of faithlessness or negligence attaches to them. High credit is indispensable to the success and prosperity of a bank. Without it, customers cannot be induced to deposit their moneys. When it has once been secured, and then declines, those who have deposited demand their cash, the income of the bank dwindles, and often bankruptcy follows. It sometimes happens that, without any justification, a suspicion of dishonesty or carelessness attaches to a cashier or a president of a bank, spreads through the community in which he lives, scares the depositors, and threatens immediate financial ruin to the institution. In such a case it is necessary to the prosperity and success–to the very existence–of a banking institution that the board of directors should have power to remove such an officer, and to put in his place another, in whom the community has confidence. In our opinion, the provision of the act of congress to which we have referred was inserted, ex industria, to provide for this very contingency.

Kroske v. United States Bank Corp., 432 F.3d 976, 983 (9th Cir. 2005) (citing Westervelt v. Mohrenstecher, 76 F. 118, 122 (8th Cir. 1896)) (internal quotation marks omitted).

Thus, the original congressional intent behind the at-pleasure provision of the National Bank Act was to ensure the financial stability of the banking institutions by affording them the means to discharge employees who were felt to compromise an institution’s integrity. Id. at 983-84 (internal citations and quotation marks omitted). Accordingly, courts uniformly have concluded that a bank’s power to dismiss at pleasure is analogous to dismiss at will, implying the absence of a contractual relationship between employer and employee. Id. at 984 (internal citations and quotation marks omitted).

TITLE VII

On the other hand, Title VII of the Civil Rights Act of 1964 makes it unlawful for employers (e.g., a bank), inter alia, to discriminate against an individual on the basis of race, color, religion, national origin, or sex; additional organizational forms are within purview of Title VII, but they are beyond the scope of this article. Title VII also makes it illegal to retaliate against an individual because the person complained about discrimination, filed a charge of discrimination, or participated in an employment discrimination investigation or lawsuit.

THE INTERSECTION OF LAWS

The intersection of the at-pleasure provision and Title VII presents a potential conflict of laws; and the 9th Circuit, in Kroske v. US Bank Corp, resolved the conflict in favor of bank officers both hired and fired by the board of directors. See Kroske v. United States Bank Corp., 432 F.3d 976 (9th Cir. 2005). In Kroske, Kathy Kroske was a bank officer that was both hired and fired by the board of directors, and Kroske subsequently filed suit against the bank alleging age discrimination under Washington Law Against Discrimination (WLAD). Accordingly, one of the issues the court addressed was whether the at-pleasure provision preempted her age discrimination claim under WLAD?

The court, in reaching its conclusion (the analysis is beyond the scope of this article), found, inter alia, that federal anti-discrimination statutes were relevant to its inquiry, because federally chartered banks are not exempt from liability under those laws. Id. at 986 (see Cooper v. Fed. Reserve Bank, 467 U.S. 867 (1984) (holding that members of a class of black employees of a Federal Reserve Bank could maintain separate actions against the bank under Title VII); see also Enforcement Guidance on Coverage of Federal Reserve Banks, EEOC Decision No. N-915-002 (1993) (concluding that Federal Reserve Banks are not executive agencies and are covered by Title VII, the ADEA, the Equal Pay Act (“EPA”), and the Americans with Disabilities Act (“ADA”) as private employers)). The court went on to find that courts that have addressed the issue consistently have held that banks are subject to liability for discrimination under federal anti-discrimination laws irrespective of the bank’s right to dismiss an officer (or employee) at pleasure. Id. (internal citations and quotation marks omitted).

CONCLUSION

Thus, I believe that the National Bank Act does not preempt Title VII of the Civil Rights Act of 1964.

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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Seizure, Derivative Contraband, and Search Warrants: WA State

by Gregory Williams, Esq. | Under Washington State law, can city police departments confiscate personal property derivative contraband without process when the seizure is incident to a search warrant? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

CONFISCATING DERIVATIVE CONTRABAND

In 1992, Division II held that the State of Washington cannot confiscate otherwise legally held property merely because it is derivative contraband, but instead must forfeit it using proper forfeiture procedures. State v. Alaway, 64 Wn.App. 796, 799-800, 828 P.2d 591 (Div. 2 1992), rev. denied, 119 Wn.2d 1016, 833 P.2d 1390 (1992)(internal quotation marks and internal citations omitted). Blacks Law Dictionary, p. 1325 (Rev 8th Ed. 2004), defines “confiscate“ as follows: CONFISCATE. “To seize (property) by authority of law”; and derivative contraband is property that is not contraband in and of itself but is used in connection with contraband. State v. Alaway, 64 Wn.App. 796, 799-800, 828 P.2d 591 (Div. 2 1992), rev. denied, 119 Wn.2d 1016, 833 P.2d 1390 (1992).

WA STATUTORY FORFEITURE PROCEDURE

Accordingly, city police departments can only seize property used in connection with contraband by using proper forfeiture procedures under Washington statutory law. Washington’s statutory forfeiture procedure for seizures of property is contained in RCW 69.50.505. State v. Alaway, 64 Wn.App. 796, 800, 828 P.2d 591 (Div. 2 1992), rev. denied, 119 Wn.2d 1016, 833 P.2d 1390 (1992).

SEIZURE OF PERSONAL PROPERTY WITHOUT PROCESS

Under relevant portions of RCW 69.50.505(2), seizure of personal property without process may be made if:

(a) The seizure is incident to an arrest or a search under a search warrant or an inspection under an administrative inspection warrant;

(b) The property subject to seizure has been the subject of a prior judgment in favor of the state in a criminal injunction or forfeiture proceeding based upon this chapter;

(c) A **board inspector or law enforcement officer has probable cause to believe that the property is directly or indirectly dangerous to health or safety;or

(d) The **board inspector or law enforcement officer has probable cause to believe that the property was used or is intended to be used in violation of this chapter.

RCW 69.50.505(2) (emphasis added).

And the relevant portion of RCW 69.50.505(3) essentially states that in the event of seizure pursuant to subsection (2) of this section, proceedings for forfeiture shall be deemed commenced by the seizure — in that case, the law enforcement agency under whose authority the seizure was made is required to, inter alia, cause notice to be served within fifteen days following the seizure on the owner of the property seized. See RCW 69.50.505(2)-(3).

CONCLUSION

Thus, I believe that city police departments can confiscate personal property derivative contraband without process when the seizure is incident to a search warrant if proper forfeiture procedures are utilized.

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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WA State Reviser’s note: **(2) Chapter 19, Laws of 2013 changed “state board of pharmacy” to “pharmacy quality assurance commission.”

Section 1981 & Would-Be Contractors

by Gregory Williams, Esq. | Are would-be contractors protected under Section 1981? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

SECTION 1981

Section 1981 prohibits racial discrimination in the making and enforcement of contracts. See 42 U.S.C. § 1981. A plaintiff cannot state a claim under § 1981 unless he has (or would have) rights under the existing (or proposed) contract that he wishes to make and enforce. See Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 479-80 (2006).

THE WOULD-BE CONTRACTOR

Accordingly, a contractual relationship need not already exist, because §1981 protects the would-be contractor along with those who already have made contracts. See id. at 476. The US Supreme Court made this clear in Runyon v. McCrary, 427 U.S. 160, 96 S.Ct. 2586, 49 L.Ed.2d 415 (1976), “which subjected defendants to liability under §1981 when, for racially-motivated reasons, they prevented individuals who sought to enter into contractual relationships from doing so.” Domino’s Pizza, Inc. 546 at 476 (internal citations and quotation marks omitted).

CONCLUSION

Thus, I believe that, depending on the circumstances, would-be contractors may be protected under Section 1981.

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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The Rehabilitation Act & Indirect Evidence

by Gregory Williams, Esq. | Under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec 794 (Rehabilitation Act), may a federal employee prove employment disability discrimination with indirect evidence? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

THE REHABILITATION ACT

The Rehabilitation Act is the controlling authority for a disability discrimination claim by a federal employee. As of the date of this article, the relevant portion of the Rehabilitation Act states as follows:

(a) Promulgation of rules and regulations

No otherwise qualified individual with a disability in the United States, as defined in section 705(20) of this title, shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance or under any program or activity conducted by any Executive agency or by the United States Postal Service …

(d) Standards Used In Determining Violation of Section

The standards used to determine whether this section has been violated in a complaint alleging employment discrimination under this section shall be the standards applied under title I of the Americans with Disabilities Act of 1990 (42 U.S.C. 12111 et seq.) and the provisions of sections 501 through 504, and 510, of the Americans with Disabilities Act of 1990 (42 U.S.C. 12201–12204 and 12210), as such sections relate to employment.

29 U.S.C. § 794 (a), (d).

TWO METHODS OF PROOF

Accordingly, there are two ways to prove discrimination under the Rehabilitation Act: (1) Mixed-Motive Analysis; and (2) McDonnell Douglas Burden-Shifting Framework.

(1) Direct Evidence

A Mixed-Motive Analysis is appropriate where direct evidence exists that an employer, in making an adverse employment decision, considered a proscribed factor, e.g. disability, as well as one or more legitimate factors, e.g. competence or performance. Rios-Jimenez v. Principi, 520 F.3d 31, 39 (1st Cir. 2008) (citing Price Waterhouse v. Hopkins, 490 U.S. 228, 241-42, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989); Fernandes v. Costa Bros. Masonry, Inc., 199 F.3d 572, 580 (1st Cir. 1999); and see Patten v. Wal-Mart Stores East, Inc., 300 F.3d 21, 25 (1st Cir. 2002) (discussing method for direct evidence analysis)).

(2) Circumstantial Evidence

Alternatively, the McDonnell Douglas Burden-Shifting Framework is appropriate when there is indirect evidence of discrimination. To succeed on a disability discrimination claim under the Rehabilitation Act of 1973 using the McDonnell Douglas burden-shifting framework, the employee-plaintiff must first establish a prima facie case of discrimination. Rios-Jimenez v. Principi, 520 F.3d 31 (1st Cir. 2008) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); see also, Crudder v. Peoria Unified School District No. 11, 11-15164 (FED9 2012) (referencing Noyes v. Kelly Servs., 488 F.3d 1163, 1168 (9th Cir. 2007)) (quotation marks omitted). If the employee states a prima facie case, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the challenged action. Id. (citing Chuang v. Univ. of Cal. Davis, Bd. Of Trs., 225 F.3d 1115, 1123-24 (9th Cir. 2000)) (quotation marks omitted). If the employer meets this burden, then the employee must then show a triable issue of material fact as to whether the defendant’s stated reason is mere pretext for unlawful discrimination. Id. (citing Hawn v. Exec. Jet Mgmt, Inc., 615 F.3d 1151, 1155 (9th Cir. 2010) (quotation marks omitted).

CONCLUSION

Thus, I believe that under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. Sec 794, a federal employee may prove employment disability discrimination with indirect evidence using the McDonnell Douglas framework.

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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The WA Doctrine of Judicial Estoppel

by Gregory Williams, Esq. | Under Washington law, what is the doctrine of judicial estoppel and how is it applied? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

THE POLICY

Courts apply the equitable doctrine of judicial estoppel to protect the integrity of the judicial process by precluding a party from gaining an advantage by asserting one position in a court proceeding and later seeking an advantage by taking a clearly inconsistent position. Urbick v. Spencer Law Firm, LLC, 192 Wn.App. 483, 367 P.3d 1103 (Div. 1 2016) (internal citation and quotation marks omitted).

THE 3 FUNDAMENTAL FACTORS

The Washington State Supreme Court set forth three fundamental factors to guide a court’s application of judicial estoppel as follows:

(1) whether a party’s later position is clearly inconsistent with its earlier position; (2) whether judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled; and (3) whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.

Id. (internal citation and quotation marks omitted).

SUMMARY JUDGMENT

On summary judgment, a party can ask the trial court to bar claims based on an inconsistent position taken in an earlier proceeding under the doctrine of judicial estoppel. Id. (internal citation and quotation marks omitted). To defeat summary judgment, the nonmoving party must present evidence raising an issue of fact about one of the factors guiding a court’s application of judicial estoppel or show that the trial court abused its discretion when applying the doctrine. Id. (internal citation and quotation marks omitted).

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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Individual Capacity State Officials & Section 1983 Qualified Immunity

by Gregory Williams, Esq. | Under §1983, may a state official sued in their individual capacity be entitled to qualified immunity? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

INDIVIDUAL CAPACITY

A state official sued in his or her individual capacity may be entitled to qualified immunity, unless the official violated a constitutional right of the plaintiff and that right was “clearly established.” Nelson v. Corr. Med. Servs., 583 F.3d 522, 528 (8th Cir. 2009) (internal quotation marks omitted).

QUALIFIED IMMUNITY

Qualified immunity is an entitlement not to stand trial, that is an immunity from suit rather than a mere defense to liability. See Rudebusch v. Hughes, 313 F.3d 506, 514 (9th Cir. 2002) (citing Mitchell v. Forsyth, 472 U.S., 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985) (emphasis in original)) (internal citations and quotation marks omitted). As a consequence, qualified immunity safeguards all but the plainly incompetent or those who knowingly violate the law. Rudebusch v. Hughes, 313 at 514 (internal citations and quotation marks omitted). This standard allows ample room for reasonable error on the part of the official. Id. (internal citations and quotation marks omitted). It encompasses both mistakes of fact and mistakes of law. Id. (internal citations and quotation marks omitted).

THE TWO-STEP PROCESS

Analysis of a Section 1983 qualified immunity issue involving an individual capacity state official typically involves a two-step process. The first step requires the following question be answered: “Taken in the light most favorable to the party asserting injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Rudebusch v. Hughes, 313 F.3d 506, 514 (9th Cir. 2002) (citing Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001)) (emphasis added).

Only after determining whether the constitutional right was violated does the court proceed to the second step of the two-part inquiry as follows: whether the law was so clearly established that a reasonable official would understand that what he is doing violates that right? See id. (internal citations and quotation marks omitted). Affirmative answers at both steps of the inquiry will typically prevent the state official from claiming qualified immunity.

THE POLICY

Ultimately, the concern of the immunity inquiry is to acknowledge that reasonable mistakes can be made as to the legal constraints on particular official conduct. Id. (internal citations and quotation marks omitted). And, thus, the qualified immunity analysis occurs in the specific context of the situation confronted by the official. See id. (internal citations and quotation marks omitted).

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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Sole Corporate Shareholder Plaintiff & Section 1981

by Gregory Williams, Esq. | Under Section 1981, may a plaintiff bring a claim of discrimination as the sole corporate shareholder authorized to make and enforce contracts for the shareholder’s corporation as its agent? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

STATING A CLAIM

A plaintiff cannot state a Section 1981 claim unless he has (or would have) rights under the existing (or proposed) contract that he wishes to make and enforce. Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 126 S.Ct. 1246, 163 L.Ed.2d 1069 (2006) (internal quotation marks omitted). The statute, originally enacted as § 1 of the Civil Rights Act of 1866, now protects the equal right of all persons to make and enforce contracts without respect to race, § 1981(a), and defines “make and enforce contracts” to include “the making, performance, modification, and termination of contracts, and the enjoyment of all benefits . . . of the contractual relationship,” § 1981(b). See id. (internal quotation marks omitted) (emphasis added).

THE SOLE CORPORATE SHAREHOLDER

Importantly, this cannot be read to give a sole corporate shareholder a cause of action, because he “made and enforced contracts” for his corporation as its agent. See id. The right to “make contracts” protected by the Section 1981 was not the insignificant right to act as an agent for someone else’s contracting, but was rather the right, denied in some States to blacks, to give and receive contractual rights on one’s own behalf. Id. at 475. Any §1981 claim, therefore, must initially identify an impaired “contractual relationship,” §1981(b), under which the plaintiff has rights. Id. at 476 (internal citations omitted).

A POTENTIAL EXCEPTION

However, the court in Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, n. 3, 126 S.Ct. 1246, 163 L.Ed.2d 1069 (2006), alluded to a potential exception, but elected not to decide it; because the plaintiff made no such claim. Particularly, the court stated, “[W]e do not mean to exclude the possibility that a third-party intended beneficiary of a contract may have rights under §1981.” Id. (referencing 2 Restatement (Second) of Contracts §304, p. 448 (1979) (“A promise in a contract creates a duty in the promisor to any intended beneficiary to perform the promise, and the intended beneficiary may enforce the duty”)). “Neither do we mean to affirm that possibility.” Id. (referencing Blessing v. Freestone, 520 U.S. 329, 349, 117 S.Ct. 1353, 137 L.Ed.2d 569 (1997) (SCALIA, J., concurring) (“Until relatively recent times, the third-party beneficiary was generally regarded as a stranger to the contract, and could not sue upon it”)).

CONCLUSION

Thus, in my opinion it appears that a sole corporate shareholder plaintiff will probably not be able to pursue a cause of action under Section 1981 simply because the shareholder “made and enforced contracts” for her corporation, as its agent, establishing the basis for claims of discrimination. However, if the sole corporate shareholder is able to argue that the plaintiff-corporation was a third party beneficiary under the subject contract(s), then the shareholder-plaintiff might be able to pursue a viable Section 1981 claim.

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced employment attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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The Diversity Jurisdiction Gambit

by Gregory Williams, Esq. | Under 28 U.S.C. § 1332, is a plaintiff that files an employment discrimination case originally in Federal court–based on diversity jurisdiction–entitled to costs when the court finally adjudges that Plaintiff is entitled to recover less than the sum or value of $75,000? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

DIVERSITY & SUPPLEMENTAL JURISDICTION

As an initial matter, United States District Courts have original jurisdiction  of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between citizens of different States (i.e., Diversity Jurisdiction); there are additional provisions. See 28 U.S.C. § 1332(a).

Further, in any civil action of which the district courts have original jurisdiction, the district courts shall have Supplemental Jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution; but, there are exceptions. See 28 U.S.C. § 1367(a)-(b).

EXAMPLE

Employment discrimination cases often involve these two jurisdictional bases. For example, assume that an employment-discrimination plaintiff is a resident of the State of Washington and works for an employer corporation located and licensed in Washington State; but the employer is actually incorporated in Delaware. In some instances, the plaintiff might be able to bring the discrimination lawsuit originally in a United States District Court against the employer corporation based on claims under both Title VII of the Civil Rights Act of 1964 (Diversity Jurisdiction) and the Washington Law Against Discrimination (Supplemental Jurisdiction).

THE DIVERSITY JURISDICTION GAMBIT

However, there may be risks for the plaintiff in using Federal court–based on Diversity Jurisdiction–to originally file an employment discrimination lawsuit. The relevant law is 28 U.S.C. § 1332(b), and as of the date of this article, it states as follows:

(b) Except when express provision therefor is otherwise made in a statute of the United States, where the plaintiff who files the case originally in the Federal courts is finally adjudged to be entitled to recover less than the sum or value of $75,000, computed without regard to any setoff or counterclaim to which the defendant may be adjudged to be entitled, and exclusive of interest and costs, the district court may deny costs to the plaintiff and, in addition, may impose costs on the plaintiff.

Id. This statute stands for the principle that if the outcome shows that the case did not belong in federal court, then costs may be denied. Berkla v. Corel Corp., 302 F.3d 909, 921 (9th Cir. 2002) (internal citations and questions marks omitted).

CONCLUSION

Thus, subject to exceptions, a plaintiff that files an employment discrimination case originally in Federal court based on diversity of citizenship jurisdiction must, arguably, recover $75,000 or more, or the court may deny costs authorized by statute to the plaintiff; moreover, the court may also impose costs on the plaintiff. But this law may be superseded by an express provision in a statute of the United States; and the limitation does not apply to cases wherein subject matter jurisdiction is founded upon federal question or supplemental jurisdiction. See, e.g., id. at 921 (subject matter jurisdiction was founded on federal question jurisdiction and thus 28 U.S.C. § 1332(b) did not apply).

In any event, this is a gambit that some plaintiffs may not want to take – proceed with caution.

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced employment attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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Overcoming Legitimate Reasons for Discrimination

by Gregory Williams, Esq. | Under both Washington Law Against Discrimination (WLAD) and the McDonnell Douglas Framework, can an employment-discrimination plaintiff circumstantially prove that discrimination was a substantial factor motivating the employer, even though the employer’s stated reason is legitimate? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

Proving Discrimination In Washington

-Substantial Factor-

Under the WLAD–and with few exceptions–it is an unfair practice for any employer to refuse to hire any person because of age, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability, unless based upon a bona fide occupational qualification.

At trial, the WLAD plaintiff must ultimately prove that the protected class was a substantial factor in an employer’s adverse employment action. See Scrivener v. Clark College, 181 Wn.2d 439, 444, 334 P.3d 541 (Wash. 2014) (internal citation and quotation marks omitted).

A “substantial factor” means that the protected characteristic was a significant motivating factor bringing about the employer’s decision. Id. (internal citation and quotation marks omitted). It does not mean that the protected characteristic was the sole factor in the decision. Id. (internal citation and quotation marks omitted).

-Proof By Circumstantial Evidence-

To overcome summary judgment, a plaintiff needs to show only that a reasonable jury could find that the plaintiff’s protected trait was a substantial factor motivating the employer’s adverse actions. Scrivener v. Clark College, 181 Wn.2d 439, 445, 334 P.3d 541 (Wash. 2014) (internal citation omitted). This is a burden of production, not persuasion, and may be proved through direct or circumstantial evidence. Id. (internal citation omitted) (emphasis added).

Where a plaintiff lacks direct evidence, Washington courts use the burden shifting analysis articulated in McDonnell Douglas, 411 U.S. 792, to determine the proper order and nature of proof for summary judgment. Id. (internal citations omitted) ( emphasis added).

Thus, at summary judgment, Washington State courts typically apply the McDonnell Douglas Framework to decide employment discrimination issues where plaintiffs offer proof by circumstantial evidence.

The McDonnell Douglas Framework

The McDonnell Douglas Framework is a three pronged test; and in Scrivener the Washington State Supreme Court defined it as follows:

Under the first prong of the McDonnell Douglas framework, a plaintiff bears the initial burden of establishing a prima facie case of discrimination, which creates a presumption of discrimination. (citations omitted). Once the plaintiff establishes a prima facie case, [under the second prong] the burden of production shifts to the employer to articulate a legitimate, nondiscriminatory reason for the adverse employment action. (citations omitted).

If the Defendant meets this burden, the third prong of the McDonnell Douglas test requires the Plaintiff to produce sufficient evidence that Defendant\’s alleged nondiscriminatory reason for [the employment action] was a pretext. (citations omitted). Evidence is sufficient to overcome summary judgment if it creates a genuine issue of material fact that the employer\’s articulated reason was a pretext for a discriminatory purpose. (citations omitted).

If the plaintiff satisfies the McDonnell Douglas burden of production requirements, the case proceeds to trial, unless the judge determines that no rational fact finder could conclude that the action was discriminatory. (citations omitted).

Scrivener v. Clark College, 181 Wn.2d 439, 446, 334 P.3d 541 (Wash. 2014) (internal citations and quotation marks omitted).

At this point, I’ve gone over enough information to warrant revisiting the main issue of this article: under both WLAD and the McDonnell Douglas Framework, can a plaintiff circumstantially prove that discrimination was a substantial factor motivating the employer, even though the employer’s stated reason is legitimate? The answer lies in the proper definition and application of the third prong of McDonnell Douglas — pretext.

The Fulton Error

The definition of “pretext” under McDonnell Douglas has contracted and expanded over the last two decades as a result of the “Fulton Error.” In 2014, the Washington State Supreme Court essentially described the Fulton Error as follows:

  1. In 1995, the Court of Appeals in Kuyper v. Dep’t of Wildlife, 79 Wn.App. 732, 738-39, 904 P.2d 793 (1995), listed the following four factors as examples of how to prove the defendant’s articulated reasons were pretextual: (1) the reason has no basis in fact, (2) it was not really a motivating factor for the decision, (3) it lacks a temporal connection to the decision, or (4) was not a motivating factor in employment decisions for other employees in the same circumstances.
  2. In 2000, the Court of Appeals in Fulton v. Dep’t of Soc. & Health Servs., 169 Wn.App. 137, 161, 279 P.3d 500 (2012), repeated these four factors, omitting that they were only examples – thus creating the “Fulton Error.”
  3. In 2013, the Court of Appeals in Scrivener v. Clark Coll., 176 Wn.App. 405, 309 P.3d 613 (2013), review granted, 179 Wn.2d 1009, 316 P.3d 495 (2014), repeated the Fulton Error, overlooking that a plaintiff may also establish pretext by proving that discrimination was a substantially motivating factor in the employment decision.

Scrivener v. Clark College, 181 Wn.2d at 447-48. Eventually, the Washington State Supreme Court decided it was time to address the Fulton Error.

The Pretext Prong

In 2014, the Washington State Supreme Court elected to review the 2013 Scrivener decision and found that an employee may satisfy the pretext prong by offering sufficient evidence to create a genuine issue of material fact either (1) that the defendant’s reason is pretextual or (2) that although the employer’s stated reason is legitimate, discrimination nevertheless was a substantial factor motivating the employer. Scrivener v. Clark College, 181 Wn.2d 439, 446-47, 334 P.3d 541 (Wash. 2014). Moreover, the court found that an employee does not need to disprove each of the employer’s articulated reasons to satisfy the pretext burden of production. Id. at 447 (internal citation omitted). The court went on to say:

[O]ur case law clearly establishes that it is the plaintiff’s burden at trial to prove that discrimination was a substantial factor in an adverse employment action, not the only motivating factor. (internal citation omitted). An employer may be motivated by multiple purposes, both legitimate and illegitimate, when making employment decisions and still be liable under the WLAD. (internal citation omitted).

Id. at 447 (internal citations omitted).

The Scrivener Correction

The Court then squarely addressed the Fulton Error and ruled, “A plaintiff may satisfy the pretext prong using one of the four factors listed by the Court of Appeals, but the plaintiff may also satisfy the pretext prong by presenting sufficient evidence that discrimination nevertheless was a substantial factor motivating the employer.” Id. at 448 (emphasis added).

Conclusion

Thus, I believe that under both Washington Law Against Discrimination and the McDonnell Douglas Framework, an employment-discrimination plaintiff can circumstantially prove that discrimination was a substantial factor motivating the employer, even though the employer’s stated reason is legitimate.

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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Section 1983, Class Of One, & Racial Discrimination

by Gregory Williams, Esq. | Under federal law, what is a “Class of One” racial discrimination claim? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

SECTION 1983

Section 1983 is not itself a source of substantive rights, but merely provides a method for vindicating federal rights elsewhere conferred. Albright v. Oliver, 510 U.S. 266, 271, 114 S.Ct. 807, 811 (1994) (quoting Baker v. McCollan, 443 U.S. 137, 144, n. 3, 99 S.Ct. 2689, 2694, n. 3 (1979)) (internal quotation marks omitted). Section 1983 and other federal civil rights statutes address liability in favor of persons who are deprived of rights, privileges, or immunities secured to them by the Constitution. Carey v. Piphus, 435 U.S. 247, 253, 98 S.Ct. 1042 (1978) (quoting Imbler v. Pachtman, 424 U.S. 409, 417, 96 S.Ct. 984, 996 (1976)) (internal quotation marks omitted). The first inquiry in any Section 1983 suit, therefore, is whether the plaintiff has been deprived of a right secured by the Constitution and laws. Baker, 443 U.S. at 140, 99 S.Ct. 2689 (1979) (internal quotation marks omitted).

CLASS OF ONE CLAIM

The Equal Protection Clause of the Fourteenth Amendment (hereinafter, “Equal Protection Clause“) is a right secured by the Constitution. The central purpose of the Equal Protection Clause is the prevention of official conduct discriminating on the basis of race. When an equal protection claim is premised on unique treatment rather than on a classification, the Supreme Court has described it as a “class of one” claim. North Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008) (citing Vill. of Willowbrook v. Olech, 528 U.S. 562, 564, 120 S.Ct. 1073, 145 L.Ed.2d 1060 (2000) (per curiam)).

THE ELEMENTS

Generally, to make a class-of-one equal protection claim, a plaintiff must establish that defendants: (1) intentionally treated him (2) differently than other similarly situated individuals (3) without a rational basis. See Gearhart v. Lake County, Mont., 637 F.3d 1013, 1022 (9th Cir. 2011).

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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Equal Rights Under the Law – Section 1981

by Gregory Williams, Esq. | Under federal law, what is Section 1981 – Equal rights under the law? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

SECTION 1981

Section 1981 prohibits racial discrimination in the making and enforcement of contracts. See 42 U.S.C. § 1981. A plaintiff cannot state a claim under Section 1981 unless he has (or would have) rights under the existing (or proposed) contract that he wishes to make and enforce. See Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 479-80 (2006). The relevant law is entitled “Equal rights under the law” and states as follows:

(a) STATEMENT OF EQUAL RIGHTS

All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other.

(b) MAKE AND ENFORCE CONTRACTS DEFINED

For purposes of this section, the term “make and enforce contracts” includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.

(c) PROTECTION AGAINST IMPAIRMENT

The rights protected by this section are protected against impairment by nongovernmental discrimination and impairment under color of State law.

42 U.S.C. § 1981.

Discriminatory intent is required to support a claim under Section 1981. Patterson v. McLean Credit Union, 491 U.S. 164, 186 (1989).

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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Section 1981 & Non-Employment Contracts: 9th Circuit

by Gregory Williams, Esq. | In the federal Ninth Circuit, can one establish claims of racial discrimination in non-employment contracts arising under 42 U.S.C. § 1981 – Equal rights under the law? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

FOUR ELEMENTS

The real issue is how to adapt the four elements of a prima facie case established in the employment discrimination context to claims of racial discrimination in non-employment contracts arising under 42 U.S.C. § 1981; this was a matter of first impression in the Ninth Circuit in Lindsey v. SLT Los Angeles, LLC, 447 F.3d 1138, 1145 (9th Cir. 2005).

LINDSEY v. SLT LOS ANGELES, LLC

In Lindsey, the court agreed with the decisions of other circuits that the first three elements of the McDonnell Douglas test are easily adapted to claims arising under Section 1981 outside of an employment context. Id. So adapted, the first three elements require a plaintiff to show that: (1) it is a member of a protected class, (2) it attempted to contract for certain services, and (3) it was denied the right to contract for those services. Id. (referencing Christian v. Wal-Mart Stores, Inc., 252 F.3d 862, 872 (6th Cir.2001); Bratton v. Roadway Package Sys., Inc., 77 F.3d 168, 176 (7th Cir.1996)).

THE 4TH ELEMENT

However, the Lindsey court identified that the Seventh and Sixth Circuits conflict over adaptation of the fourth McDonnell Douglas requirement, which, as applied by the district court in Lindsey, require that such services remained available to similarly-situated individuals who were not members of the plaintiff’s protected class. Id. The court then pointed out that the Seventh Circuit adopts this requirement, Bratton, 77 F.3d at 176, but the Sixth Circuit concludes that this flat requirement is too rigorous in the context of the denial of services by a commercial establishment, because customers often have no way of establishing what treatment was accorded to other customers. Id. (internal citations and quotation marks omitted).

COMMERCIAL CONTEXT

The Lindsey court then reasoned that the Sixth Circuit distinguishes the commercial services context from the employment context, where records are kept and there is a paper trail disclosing what treatment is given to similarly-situated others. Id. (internal citations and quotation marks omitted). Accordingly, the Sixth Circuit alters the elements to require: (a) that plaintiff was deprived of services while similarly situated persons outside the protected class were not; and/or (b) that plaintiff received services in a markedly hostile manner and in a manner which a reasonable person would find objectively discriminatory. Id. (internal citations and quotation marks omitted).

CONCLUSION

Ultimately, the Ninth Circuit found the Sixth Circuit’s reasoning compelling, but did not decide whether its modification/relaxation of the fourth element of a prima facie case under Section 1981 is required in many or all cases arising in a commercial, non-employment context.

Thus, it appears that in the Ninth Circuit, the following may be required to establish a prima facie case of racial discrimination in non-employment contracts arising under 42 U.S.C. § 1981: a) membership in a protected class; b) an attempt to contract for certain services; c) denial of the right to contract for those services; and (possibly) d) plaintiff was deprived of services while similarly situated persons outside the protected class were not [AND/OR] plaintiff received services in a markedly hostile manner and in a manner which a reasonable person would find objectively discriminatory.

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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Affidavits of Prejudice: WA State

by Gregory Williams, Esq. | Under WA state law, what is an affidavit of prejudice? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

THE GENERAL RULE

In the simplest terms, Washington State jurisprudence does not allow a superior court judge to sit to hear or try an action or proceeding when it is properly established that the judge is “prejudiced against any party or attorney, or the interest of any party or attorney appearing” in the action (however, this law does not apply to water right adjudications filed under chapter 90.03 or 90.44 RCW; disqualification of judges in water right adjudications is governed by RCW 90.03.620). See RCW 4.12.040 and 4.12.050.

Accordingly, the procedural tool used to disqualify a superior court judge based on prejudice, as described above, is an affidavit of prejudice. An affidavit of prejudice will produce different results depending on the size of the associated judicial district.

ONE MEMBER JUDICIAL DISTRICTS

If one files an affidavit of prejudice in a judicial district containing only one judge, then the following law will apply:

[I]n all judicial districts where there is only one judge, a certified copy of the motion and affidavit filed in the cause shall be transmitted by the clerk of the superior court to the clerk of the superior court designated by the chief justice of the supreme court. Upon receipt the clerk of said superior court shall transmit the forwarded affidavit to the presiding judge who shall direct a visiting judge to hear and try such action as soon as convenient and practical …

RCW 4.12.040(1). Thus, one member judicial districts will typically utilize visiting judges to resolve properly drafted and presented affidavits of prejudice.

MULTIPLE MEMBER JUDICIAL DISTRICTS

However, if one files an affidavit of prejudice in a judicial district containing more than one judge, then “in such case the presiding judge in judicial districts where there is more than one judge shall forthwith transfer the action to another department of the same court, or call in a judge from some other court.” See id. Thus, multiple member judicial districts have slightly more flexibility in resolving properly drafted and presented affidavits of prejudice.

Notwithstanding the size of the judicial district, all Washington State affidavits of prejudice must conform to specific requirements.

REQUIREMENTS

Typically, any party to or any attorney appearing in any action or proceeding in a superior court may establish judicial prejudice by submitting a motion supported by affidavit. See RCW 4.12.050(1). Importantly, the affidavit must say at least the following:

  1. The judge before whom the action is pending is prejudiced against such party or attorney;
  2. Consequently, such party or attorney cannot, or believes he or she cannot, have a fair and impartial trial before such judge.

Id. However, these requirements are subject to limitations.

LIMITATIONS

Pursuant to RCW 4.12.050(1), the motion and affidavit must conform to the following:

[They must be] filed and called to the attention of the judge before he or she shall have made any ruling whatsoever in the case, either on the motion of the party making the affidavit, or on the motion of any other party to the action, of the hearing of which the party making the affidavit has been given notice, and before the judge presiding has made any order or ruling involving discretion…

Id. (emphasis added). Notwithstanding this limitation, there are exceptions and the following are not considered an order or ruling involving discretion within the meaning of this law:

  • arrangement of the calendar;
  • the setting of an action;
  • motion or proceeding down for hearing or trial;
  • the arraignment of the accused in a criminal action;
  • fixing of bail.

Id. In any event, in counties where there is but one resident judge, such motion and affidavit shall be filed not later than the day on which the case is called to be set for trial.

Importantly, affidavits of prejudice are also subject to limitation in number: no party or attorney is allowed to make more than one such application in any action or proceeding under RCW 4.12.040 and 4.22.050.

STIPULATIONS

If a motion and affidavit of prejudice is filed, the subject judge may nevertheless hear argument and rule upon any preliminary motion, demurrers, or other matter presented if the parties so agree in writing by stipulation. See RCW 4.12.050.

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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Disparate Treatment: Proving Pretext by Comparison

by Gregory Williams, Esq. | Under the the McDonnell Douglas burden-shifting scheme (hereinafter, “McDonnell Douglas“),  can a plaintiff show pretext through comparison, when the claim is based on disparate treatment discrimination? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

MCDONNELL DOUGLAS

To succeed on a claim of disparate treatment using the McDonnell Douglas framework, the plaintiff must first establish a prima facie case of discrimination. See Crudder v. Peoria Unified School District No. 11, 11-15164 (9th Cir. 2012) (referencing Noyes v. Kelly Servs., 488 F.3d 1163, 1168 (9th Cir. 2007)). If the plaintiff states a prima facie case, the burden shifts to the defendant-employer to articulate a legitimate, non-discriminatory reason for the challenged action. Id. (citing Chuang v. Univ. of Cal. Davis, Bd. Of Trs., 225 F.3d 1115, 1123-24 (9th Cir. 2000)). If the employer meets this burden, the plaintiff must then show a triable issue of material fact as to whether the defendant-employer’s stated reason is mere pretext for unlawful discrimination. Id. (citing Hawn v. Exec. Jet Mgmt, Inc., 615 F.3d 1151, 1155 (9th Cir. 2010)) (emphasis added).

Only when the parties meet their evidentiary burdens under all three prongs of McDonnell Douglas and the record contains evidence supporting reasonable but competing inferences of both discrimination and nondiscrimination should the superior court send the case to a jury. Fulton v. State, Dept. of Social & Health Services, 169 Wn.App. 137, 161, 279 P.3d 500, (Wash.App. Div. 2 2012) (internal citation omitted). In simpler terms; a plaintiff’s prima facie case, plus evidence sufficient to disbelieve an employer’s explanation, will ordinarily, but not necessarily, suffice to submit the case to a jury trial. Id.

PRETEXT BY COMPARISON

A closer look at the McDonnell Douglaspretext” requirement reveals that a Plaintiff can prove pretext by using comparison. Generally, to prove pretext under McDonnell Douglas, a plaintiff must show that the defendant-employer’s articulated reasons (1) had no basis in fact, (2) were not really motivating factors for its decision, (3) were not temporally connected to the adverse employment action, or (4) were not motivating factors in employment decisions for other employees in the same circumstances. Id. (internal citation omitted) (emphasis added). Specifically, the fourth element allows a plaintiff to prove pretext by using comparison.

Accordingly, to prove pretext by comparison in Washington, a plaintiff must show that (1) an employee outside the protected class (2) committed acts of comparable seriousness (3) but was not demoted or similarly disciplined. Johnson v. Department of Social & Health Services, 907 P.2d 1223, 80 Wn.App. 212, 227 (Wash.App. Div. 2 1996) (referencing Hiatt v. Rockwell Int\’l Corp., 26 F.3d 761, 770 (7th Cir.1994)).

ACTS OF COMPARABLE SERIOUSNESS

The 7th Circuit court in Hiatt v. Rockwell Int’l Corp also determined that acts of comparable seriousness need not be violations of identical company disciplinary rules. Hiatt v. Rockwell Intern. Corp., 26 F.3d 761, 770 (7th Cir. 1994) (internal citation omitted). Plaintiffs are free to compare similar conduct, focusing more on the nature of the misconduct rather than on specific company rules. Id. (internal citation omitted). However, Plaintiffs need to demonstrate more than occasional leniency toward other employees who had engaged in conduct of a similar nature. See id. at 771 (internal citation and quotation marks omitted). Ultimately, incomplete or arbitrary comparisons reveal nothing concerning discrimination. Id.

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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Cat’s Paw Theory Applies in WA State

by Gregory Williams, Esq. | Under the various employment discrimination theories of liability in Washington state, what is the “Cat’s Paw” theory? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

CAT’S PAW THEORY

The “cat’s paw“ theory of liability is a another term for subordinate bias liability which has been defined in Washington state as follows: If a supervisor performs an act motivated by retaliatory animus that is intended by the supervisor to cause an adverse employment action, and if that act is relied on by the employer and is a substantial factor in the ultimate employment action, then the employer is liable for retaliation. See Boyd v. State of Washington, 45174-3-II, 15-16 (Div. II 2015) (quotation marks omitted).

ORIGINS

Under the “cat’s paw” theory, the animus of a non-decision-maker who has a singular influence may be imputed to the decision-maker. Id. at 2 n.1 (referencing, Staub v. Proctor Hosp., 562 U.S. 411, 131 S. Ct. 1186, 179 L. Ed. 2d 144 ( 2011)) (quotation marks omitted).

The term “cat’s paw” originated in the fable, “The Monkey and the Cat,” by Jean de La Fontaine. As told in the fable, the monkey wanted some chestnuts that were roasting in a fire. Unwilling to burn himself in the fire, the monkey convinced the cat to retrieve the chestnuts for him. As the cat carefully scooped the chestnuts from the fire with his paw, the monkey gobbled them up. By the time the serving wench caught the two thieves, no chestnuts were left for the unhappy cat.

Id. (citing, Julie M. Covel, The Supreme Court Writes A Fractured Fable of the Cat’s Paw Theory in Staub v. Proctor Hospital [ Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011)], 51 Washburn L.J. 159 ( 2011)) (quotation marks omitted).

In the workplace, the cat represents an unbiased decision-maker who disciplines an employee unknowingly due to a supervisor’s bias, represented by the monkey. Id. (citing, Edward Phillips, The Law at Work: Staub v. Proctor Hospital: The Cat’s Paw Theory Gets Its Claws Sharpened, 47 Tenn. B.J. (June, 2011), at 21) (quotation marks omitted).

INDEPENDENT INVESTIGATIONS

Oftentimes, the employer-defendant in a “cat’s paw“ theory of liability case will claim that it conducted an “independent investigation“ and found an unrelated basis for the adverse employment actions upon which the plaintiff-employee seeks recourse. In such a case, employers will typically argue that the so-called “independent investigation” was a supervening cause of any retaliatory animus. Nevertheless, the employer may not necessarily be relieved of liability.

If the “independent investigation“ relies on facts provided by the biased supervisor “as is necessary in any case of cat’s-paw liability” then the employer (either directly or through the ultimate decision maker) will have effectively delegated the fact-finding portion of the investigation to the biased supervisor. Boyd, 45174-3-II at 14 (quotation marks and internal citation omitted). Accordingly, the plaintiff may have a firm basis to argue that a causal connection exists, depending on the evidence. See, e.g., id. at 14.

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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Discriminatory Application Forms in WA State

by Gregory Williams, Esq. | Under the Washington Law Against Discrimination, is it an unfair practice for an employer to use a job application form that expresses any limitation, specification, or discrimination as to a protected class when the limitation is not based upon a bona fide occupational qualification? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

UNFAIR EMPLOYER PRACTICES

The short answer is yes. The relevant law is found in chapter 49.60.180(4) RCW and states as follows:

It is an unfair practice for any employer:

. . .

(4) To print, or circulate, or cause to be printed or circulated any statement, advertisement, or publication, or to use any form of application for employment, or to make any inquiry in connection with prospective employment, which expresses any limitation, specification, or discrimination as to age, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability, or any intent to make any such limitation, specification, or discrimination, unless based upon a bona fide occupational qualification: PROVIDED, Nothing contained herein shall prohibit advertising in a foreign language.

RCW 49.60.180(4) (emphasis added).

PROTECTED CLASSES

Under the Washington Law Against Discrimination, the following categories, as referenced above, are also known as “protected classes“: age, sex, marital status, sexual orientation, race, creed, color, national origin, honorably discharged veteran or military status, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a person with a disability.

Thus, under the Washington Law Against Discrimination, it’s an unfair practice for a Washington State employer to use a job application form expressing a limitation, specification, or discrimination as to any protected class unless based upon a bona fide occupation qualification; moreover, it’s also an unfair practice for the same employers to use a job application form that expresses any intent to make any such limitation, specification, or discrimination — again, unless based upon a bona fide occupational qualification.

REMEDIES

Ultimately, any person deeming himself or herself injured by any act in violation of the Washington Law Against Discrimination has a right to a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by the Washington Law Against Discrimination or the United States Civil Rights Act of 1964 as amended, or the Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.). See RCW 49.60.030(2). However, there are risks in litigating a civil matter.

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced job application discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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WA Priority of Action Rule: Same Relief

by Gregory Williams, Esq. | Under the Washington Priority of Action Rule, how do courts determine if “relief” is the same? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

THE ELEMENTS

The Washington Priority of Action Rule will only apply if the two relevant cases involve identical (1) subject matter, (2) parties, and (3) relief. Am. Mobile Homes of Wash. Inc. v. Seattle-First Nat’l Bank, 115 Wn.2d 307, 317, 796 P.2d 1276 (1990). These factors must be established before the Washington Priority of Action Rule should be applied. Id. The identity of the above elements must be such that a decision in one tribunal would bar proceedings in the other because of res judicata. State ex rel. Evergreen Freedom Foundation v. Washington Educ. Ass’n, 111 Wn.App. 586, 607, 49 P.3d 894 (Div. 2 2002). If the Rule applies, the court which first gains jurisdiction of a cause retains the exclusive authority to deal with the action until the controversy is resolved. Am. Mobile Home, 115 Wn.2d at 316-17

THE THIRD ELEMENT: RELIEF

The Washington Supreme Court has established the following factors to determine if the relief is the same for purposes of the Washington Priority of Action Rule: (1) whether the form of relief available to each tribunal is the same (FORM OF RELIEF); and (2) whether the first tribunal can resort to another to equalize any disparity in the amount of relief available between the first and second lawsuits (EQUALIZE DISPARITY)? See, State ex rel. Evergreen Freedom Found. v. Washington Educ., 111 Wn.App. at 607 (holding that remedy was the same in both suits because the type of relief available to both courts was the same; and because the administrative agency could otherwise seek relief in superior court in the first case to equalize any disparity in the amount of relief available in the administrative tribunal).

In Evergreen Freedom Found., plaintiff attempted to amend its citizens lawsuit in superior court by adding claims that were contemporaneously being pursued by an administrative agency with statutory authority to preempt plaintiffs’ lawsuit; plaintiff sought, inter alia, the same form of remedy (i.e., a fine) as the administrative agency based on exactly the same RCW statute. The court ruled that the relief was the same in both actions and upheld the trial court’s application of the priority of action rule, because the relief in both cases was a monetary fine pursuant to RCW 42.17.395(4), and because any disparity in the amount of relief available could be eliminated if the administrative tribunal ushered the claim to superior court. The court then analyzed res judicata and concluded that jurisdiction in the second court was improper under Washington Priority of Action Rule. Id.

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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Res Judicata May Be Limited In Bankruptcy Court

by Gregory Williams, Esq. | Can Federal Bankruptcy Courts limit the application of res judicata in relation to both a plaintiff’s nondichargeability claim under 11 U.S.C. Section 523(a)(2)(A) and an associated state court action that has been decided? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

DECEIT, FRAUD, & MALICIOUS CONVERSION

The U.S. Supreme Court may avoid applying res judicata to bankruptcy courts if exclusion permits them to make an accurate determination whether a debtor in fact committed deceit, fraud, and malicious conversion. See Brown v. Felsen, 442 U.S. 127, 138, 99 S.Ct. 2205, 60 L.Ed.2d 767 (1979). Such questions are allowed to be brought up for the first time in bankruptcy court even though a related state court action has been settled. See id. Such issues are the type of question Congress intended that the bankruptcy court would resolve. Brown v. Felsen, 442 U.S. at 138. That court can weigh all the evidence, and it can also take into account whether or not petitioner’s failure to press these allegations at an earlier time betrays a weakness in his case on the merits. Id.

ARCHER V. WARNER

In Archer v. Warner, the U.S. Supreme Court reasoned that the Bankruptcy Code’s nondischargeability provision had originally covered “only ‘judgments’ sounding in fraud.” Archer v. Warner, 538 U.S. 314, 321, 123 S.Ct. 1462, 155 L.Ed.2d 454, 71 USLW 4249 (2003) (internal citations omitted). Congress later changed the language so that it covered all such “liabilities.” Id. (internal citations and quotation marks omitted). This change indicated that Congress intended the fullest possible inquiry to ensure that all debts arising out of fraud are excepted from discharge, no matter what their form. Id. Importantly, Congress also intended to allow the relevant determination (whether a debt arises out of fraud) to take place in bankruptcy court, not to force it to occur earlier in state court at a time when nondischargeability concerns are not directly in issue and neither party has a full incentive to litigate them. Id. (citing Brown v. Felsen, 442 U.S. 127 (1979)). This principle is particularly applicable if the issue of fraud was not actually litigated and determined by the jury in state court. In re: Diamond, 285 F.3d 822, 828 (9th Cir. 2002) (state court judgment had preclusive effect in bankruptcy court only because it was “actually and necessarily” litigated and determined by the state court jury).

CONCLUSION

It appears that Federal Bankruptcy Courts can limit the application of res judicata in relation to both a plaintiff’s nondichargeability claim under 11 U.S.C. Section 523(a)(2)(A) and an associated state court action that has been decided — particularly when it permits them to make an accurate determination whether a debtor in fact committed deceit, fraud, and malicious conversion..

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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Ambiguous Contracts in WA State

by Gregory Williams, Esq. | Under Washington State law, how do Washington State courts view ambiguous contracts at summary judgment? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

SUMMARY JUDGMENT

Summary judgment is not appropriate on an ambiguous contract. Marshall v. Thurston County, 165 Wn.App. 346, 351, 267 P.3d 491 (Div. 2 2011)(holding the term “incident” as it appeared in the release of liability was ambiguous and therefore not subject to summary judgment) (internal quotation marks and citations omitted). Whether a written contract is ambiguous or not is a question of law for the courts. Dice v. City of Montesano, 131 Wn.App, 675, 128 P.3d 1253 (Div. 2 2006), rev. denied, 158 Wn.2d 1017, 149 P.3d 377 (2006).

AMBIGUOUS CONTRACT PROVISIONS

Contract provisions can be ambiguous if two reasonable meanings can be attributed to the contract or if a material contract term is uncertain or capable of being understood as having more than one meaning. Marshall v. Thurston County, 165 Wn.App. at 351.

EXAMPLE: MARSHALL V. THURSTON COUNTY

In Marshall v. Thurston County, Marshall filed a claim for damages in 2001 against Thurston County based on flooding to his property, and Marshall eventually signed a release agreement with the County that exculpated the County from liability related to the 2001 claim, as well as further claims arising from the “incident.” However, in 2009 Marshall brought a new lawsuit for damages against the County as a result of additional flooding occurring after the release was signed. The County asserted that Marshall’s 2009 claim was barred by the previously executed release of liability, but the court found that the dispute turned on the meaning of the word “incident.” The court then reasoned that the 2001 claim suggested two reasonable interpretations of “incident” and held that the release was ambiguous; “therefore summary judgment was not appropriate based on the meaning of the release.” Id.

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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Title VII, WLAD, & Res Judicata: Causes of Action

by Gregory Williams, Esq. | Under Washington State law, is a Title VII (Civil Rights Act of 1964) lawsuit filed in a Federal court and a Washington Law Against Discrimination (WLAD) lawsuit concurrently filed in a Washington state court considered identical causes of action for purposes of a res judicata/claim-splitting analysis (assume that the parties, subject matter, and quality are identical between the two suits)? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

INDEPENDENT CAUSES OF ACTION

The Washington Supreme Court addressed the issue of independent causes of action in Seattle-First Nat. Bank when it held as follows:

[W]hile it is often said that a judgment is res judicata of every matter which could and should have been litigated in the action, this statement must not be understood to mean that a plaintiff must join every cause of action which is joinable when he brings a suit against a given defendant. CR 18(a) permits joinder of claims. It does not require such joinder. And the rule is universal that a judgment upon one cause of action does not bar suit upon another cause which is independent of the cause which was adjudicated.

Seattle-First Nat. Bank v. Kawachi, 91 Wash. 2d 223, 588 P.2d 725 (1978) (citing 50 C.J.S. Judgments §668 (1947) (emphasis added); 46 Am.Jur.2d Judgments §404 (1969).

Furthermore, it appears that in cases involving statutes, the courts may find different causes of action when the statutes relied upon are not exactly the same. Cf., e.g., Camer v. Seattle School Dist. No. 1, 52 Wn.App. 531, 535, 762 P.2d 356 (Wash.App. Div. 1 1988) (finding identical causes of action, because the same statutes and constitutional provisions were relied upon in both cases); and Cf., e.g., Rains v. State, 100 Wn.2d 660, 664, 674 P.2d 165 (Wash. 1983) (finding identical causes of action, because the same infringement of civil rights under 42 U.S.C. § 1983 was alleged in both cases). And both the Washington State and United States Supreme Courts have held that WLAD and Title VII claims are independent and personal causes of action.

TITLE VII: INDEPENDENT STATUTORY RIGHTS

Title VII Claims are Independent Statutory Rights: The Washington State Supreme Court has held that in filing a lawsuit under Title VII of the U.S. Civil Rights Act of 1964, an employee asserts independent statutory rights accorded by the U.S. Congress that are distinctly separate in nature from other rights and which are not vitiated merely because they are violated with another right as a result of the same factual occurrence. Civil Service Com’n of City of Kelso v. City of Kelso, 137 Wn.2d 166, 175, 969 P.2d 474 (1999) (emphasis added). Moreover, the court in City of Kelso showed that the United States Supreme Court echoed this sentiment in holding that a statutory claim brought under Title VII (Civil Rights Act of 1964) is an independent cause of action when it does not turn on the meaning of any provision in the other claim, even though the two claims involve the same factual considerations. Civil Service Com’n of City of Kelso v. City of Kelso, 137 Wn.2d 166, 175-76, 969 P.2d 474 (1999) (emphasis added) (citing Lingle v. Norge Div. of Magic Chef, Inc., 486 U.S. 399, 409-10, 108 S.Ct. 1877, 100 L.Ed.2d 410 (1988)).

Similarly, the United States Supreme Court in Morales held that Title VII (Civil Rights Act of 1964) statutory rights are legally independent rights. See, Morales v. Westinghouse Hanford Co., 73 Wn.App. 367, 372, 869 P.2d 120 (Div. 3 1994) (citing International Union of Electrical Workers v. Robbins & Myers, Inc., 429 U.S. 229, 236, 97 S.Ct. 441, 446, 50 L.Ed.2d 427 (1976)) (emphasis added). Moreover, the United States Supreme Court in Alexander held that the legislative history of Title VII statutory rights manifests a congressional intent to allow an individual to pursue independently his rights under both Title VII (Civil Rights Act of 1964) and other applicable state and federal statutes. Alexander v. Gardner-Denver Co., 94 S.Ct. 1011, 1019, 415 U.S. 36 (1974).

WLAD: INDEPENDENT STATUTORY RIGHTS

WLAD Claims are Independent Statutory Rights: Likewise, the Washington Supreme Court has held that WLAD (RCW 49.60) confers on individual employees an independent statutory right. See, Reese v. Sears, Roebuck & Co., 107 Wn.2d 563, 577, 731 P.2d 497 (Wash. 1987) (holding that the comprehensive statutory scheme contained in RCW 49.60 evidences the Legislature’s intent to allow individual employees to pursue their statutory rights independently), overruled on other grounds by Phillips v. City of Seattle, 111 Wash.2d 903 766 P.2d 1099 (Wash. 1989)) (emphasis added); see also, Morales v. Westinghouse Hanford Co., 73 Wn.App. 367, 372, 869 P.2d 120 (Div. 3 1994) (holding that the Washington Legislature has emphasized the independent nature of the remedy provided by the Washington Law Against Discrimination) (emphasis added). The Court in Reese went on to hold that the “statutory scheme designed by the Legislature in RCW 49.60 confers on individual employees a substantive right to be free from unlawful employment discrimination and provides a personal cause of action to vindicate that right.” Id. (referencing RCW 49.60.030, .180, .230) (emphasis added).

CONSIDERATIONS

Ultimately, the state Supreme Court has deemed that the following factors should be considered to determine if there is identity of causes of action: (1) Would the second action destroy or impair rights or interests established in the first judgment? (2) Is the evidence presented in the two actions substantially the same? (3) Do the two suits involve infringement of the same right? (4) Do the two suits arise out of the same nucleus of facts?

CONCLUSION

It appears that a Title VII (Civil Rights Act of 1964) lawsuit filed in a Federal court and a Washington Law Against Discrimination (WLAD) lawsuit concurrently filed in a Washington state court will not necessarily be considered identical causes of action for purposes of a res judicata/claim-splitting analysis (assuming that the parties, subject matter, and quality are identical between the two suits). The answer to this issue will typically lie in the specific facts of each case as applied to the considerations above.

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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Elements of Claim Splitting: WA State

by Gregory Williams, Esq. | Under Washington State law, what are the elements to prove unlawful claim splitting? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

THE THEORY

The theory of dismissal based upon claim splitting is variously referred to as res judicata or splitting causes of action. Landry v. Luscher, 95 Wn.App. 779, 783, 976 P.2d 1274 (1999); See also, Sound Build Homes, Inc. v. Windermere Real Estate/ South, Inc., 118 Wn.App. 617, 628, 72 P.3d 788 (Wash.App. Div. 2 2003) (theory on which dismissal is granted is variously referred to as res judicata or splitting causes of action). Thus, the rules of res judicata are typically applied to determine if improper claim splitting has occurred.

THE ELEMENTS

Dismissal on the basis of res judicata is inappropriate unless the subsequent action is identical with a prior action in four respects: (1) persons and parties; (2) cause of action; (3) subject matter; and (4) quality of the persons for or against whom the claim is made. Landry 95 Wn.App. at 783 (citing Hayes v. City of Seattle,131 Wn.2d 706, 711-12, 934 P.2d 1179, 943 P.2d 265 (1997); Kuhlman v. Thomas, 78 Wn. App. 115, 120, 897 P.2d 365 (1995)) (internal quotation marks omitted).  And the res judicata test is a conjunctive one requiring satisfaction of all four elements. Hisle v. Todd Pacific Shipyards Corp., 151 Wn.2d 853, 866, 93 P.3d 108 (Wash. 2004).

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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Section 1983, Qualified Immunity, & Employee Suspensions

by Gregory Williams, Esq. | Under a § 1983 action, is a municipal official that suspends an employee without allowing that employee to deny the underlying allegations entitled to qualified immunity? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

MUNICIPAL OFFICIALS & MUNICIPALITIES

A municipal official under a § 1983 action in his or her official capacity is treated as an action against the municipality entity itself. 14A C.J.S. Official Capacity Actions, § 445 (2006) (citing Shamaeizadeh v. Cunigan, 338 F.3d 535, 2003 FED App. 0238P (6th Cir. 2003), cert. denied, 541 U.S. 1041, 124 S.Ct. 2159, 158 L. Ed.2d 729 (2004). And municipalities sued under § 1983 are not entitled to immunity, either absolute or qualified. Monell v. Department of Social Services of the City of New York, 436 U.S. 658, 660, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) (citation omitted) (quotation marks omitted); Owen v. City of Independence, 445 U.S. 622, 657, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980).

ABSOLUTE IMMUNITY

However, absolute immunity is extended to municipal officials when they are performing quasi-prosecutorial and quasi-judicial functions not involving investigatory conduct, discretionary decisions or recommendations. Tamas v. Department of Social & Health Services, 08-35862 (9th Cir. 2010) (quotation marks omitted). But these individuals are not granted absolute immunity when they are acting in their capacity as employers and are demoting or discharging their employees. See Los Angeles Police Protective League v. Gates, 907 F.2d 879, 889 (9th Cir. 1990) (citing Forrester v. White, 484 U.S. 219, 229, 108 S.Ct. 538, 98 L.Ed.2d 555 (1988)).

QUALIFIED IMMUNITY

Regarding qualified immunity; an official is entitled to qualified immunity when the official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Finkelstein v. Bergna, 924 F.2d 1449, 1451 (9th Cir. 1989) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982); Schwartzman v. Valenzuela, 846 F.2d 1209, 1211 (9th Cir. 1988)) (internal quotation marks omitted). In order for an official to violate clearly established rights, the unlawfulness of the challenged conduct must be apparent in light of preexisting law. Id. (citations omitted).

EXAMPLE: FINKELSTEIN V. BERGNA

For example, in Finkelstein v. Bergna, 924 F.2d 1449 (9th Cir. 1989), the local governmental prosecutor suspended his deputy district attorney without providing him an opportunity to deny derogatory allegations forming the basis for his suspension. Id. The employee subsequently filed suit alleging denial of procedural due process under the Fourteenth Amendment. The 9th Circuit held that the employee had a protected property interest in continued public employment under California law and that he alleged a violation of clearly established law that a reasonable person would have known; the court then refused the prosecutor qualified immunity. Id.

CONCLUSION

It appears that a municipal official that suspends an employee without providing the employee an opportunity to deny the underlying allegations will not be entitled to qualified immunity if the employee both had a protected property interest in continued public employment and alleges a violation of clearly established law that a reasonable person would have known.

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced civil rights attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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WA State Contract Law & Sham Consideration

by Gregory Williams, Esq. | Under Washington State law, may “consideration” to establish an enforceable contract be based upon an agreement to do that which one is already obliged to do? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

CONSIDERATION

Generally, the issue of whether a contract is supported by consideration is a question of law. Nationwide Mut. Fire Ins. Co. v. Watson, 120 Wn.2d 178, 840 P.2d 851 (1992). And every contract must be supported by a consideration to be enforceable. Huberdeau v. Desmarais, 79 Wn.2d 432, 439-40, 486 P.2d 1074 (1971) (internal citations and quotation marks omitted). Consideration may consist of an act, a forbearance, the creation, modification or destruction of a legal relationship, or a return promise given in exchange. Id. at 439 (internal citations and quotation marks omitted). Overall, there is consideration if the promisee, in return for the promise, does anything legal which he is not bound to do, or refrains from doing anything which he has a right to do. Browning v. Johnson, 70 Wn.2d 145, 149, 422 P.2d 314 (1967) (internal quotation marks and citations omitted).

SHAM CONSIDERATION

However, an agreement to do that which one is already obliged to do does not constitute consideration to support a contract. Boardman v. Dorsett, 38 Wn.App. 338, 341, 685 P.2d 615 (Div. 3 1984) (internal citations and quotation marks omitted). In addition, a gratuitous promise, even if reduced to a writing, remains unenforceable. Huberdeau, 79 Wn.2d 432 (1971). According to the Restatement of Contracts, the surrender of an invalid claim by one who has neither an honest nor a reasonable belief in the validity of the claim will not constitute consideration. Id. at 439 (internal citations omitted). Importantly, the policy behind the requirement that an enforceable contract be supported by consideration has its roots in the common-law idea that one ought not be held to his gratuitous promises. Id. at 440 (internal citations and quotation marks omitted).

EXAMPLE: HUBERDEAU V. DESMARAIS

For example, in Huberdeau v. Desmarais; Huberdeau, a real estate seller, contracted for the sale of his land to Desmarais, a farmer. After the parties executed a contract for sale, the farmer was spontaneously granted by the U.S. Department of Agriculture a personal Hop Growing License–not attached to the land–authorizing the farmer to grow and sell a certain amount of hops. Subsequently, the seller required the then financially distressed farmer to sign a writing in which the farmer agreed that the Hop Growing License (an unalienable personal right) would be considered part of the land and the new writing would be part of their previous real estate contract in the event of breach by the farmer. The Supreme Court held that the seller gave and the farmer received no new, different or additional consideration in support of the new writing, that the promise to transfer the Hop Growing License was gratuitous and unsupported by consideration, and that therefore the promise was unenforceable. Id., 79 Wn.2d 432.

CONCLUSION

In Washington State, “consideration” to establish an enforceable contract may not be based upon an agreement to do that which one is already obliged to do.

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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WLAD: Discrimination & Attorneys’ Fees

by Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), do courts allow prevailing plaintiffs attorneys’ fees to be paid by the defendant-employer? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

WASHINGTON LAW AGAINST DISCRIMINATION

WLAD places a premium on encouraging private enforcement, and it entitles prevailing plaintiffs to “reasonable attorneys’ fees.” RCW 49.60.030(2). These fees are typically calculated using a lodestar formula.

THE LODESTAR FORMULA

To calculate a lodestar amount, a court multiplies the number of hours reasonably expended by the reasonable hourly rate. Chuong Van Pham v. City of Seattle, Seattle City Light, 159 Wn.2d 527, 538, 151 P.3d 976 (2007) (citing Bowers v. Transamerica Title Ins. Co., 100 Wn.2d 581, 597, 675 P.2d 193 (1983)) (quotation marks omitted). The hours reasonably expended must be spent on claims having a “common core of facts and related legal theories.” Id. (internal citations and quotation marks omitted). The court should discount hours spent on unsuccessful claims, duplicated or wasted effort, or otherwise unproductive time. Id. (internal citations and quotation marks omitted). In order to reverse an attorney fee award, an appellate court must find the trial court manifestly abused its discretion. Id. (internal citations and quotation marks omitted). That is, the trial court must have exercised its discretion on untenable grounds or for untenable reasons. Id. (internal citations and quotation marks omitted).

THE CONTINGENCY ADJUSTMENT

After the lodestar amount is calculated, the court may consider adjusting the award to reflect additional factors; this is also known as a “Contingency Adjustment.” However, I will address the Contingency Adjustment in another article.

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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WLAD: Discrimination & The Contingency Adjustment

by Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), do courts allow prevailing plaintiffs to attach a risk multiplier to attorneys’ fees to be paid by the defendant-employer? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

THE LODESTAR FORMULA

WLAD entitles prevailing plaintiffs to reasonable attorneys’ fees typically calculated using a lodestar formula; to calculate a lodestar amount, a court multiplies the number of hours reasonably expended by the reasonable hourly rate. And occasionally a risk multiplier will be warranted, because the lodestar figure does not adequately account for the high risk nature of a case. Chuong Van Pham v. City of Seattle, Seattle City Light, 159 Wn.2d 527, 544, 151 P.3d 976, (Wash. 2007) (quotation marks omitted).

THE CONTINGENCY ADJUSTMENT

Accordingly, after the lodestar amount is calculated the court may consider adjusting the award to reflect additional factors; this is also known as a “Contingency Adjustment.” Id. at 541. The contingency adjustment is based on the notion that attorneys generally will not take high risk contingency cases, for which they risk no recovery at all for their services, unless they can receive a premium for taking that risk. Id. In addition, the WLAD places a premium on encouraging private enforcement, and the possibility of a multiplier works to encourage civil rights attorneys to accept difficult cases. Id. at 542 (internal citation omitted); RCW 49.60.020.

CONSIDERATIONS & DISCRETION

Adjustments to the lodestar are considered under two broad categories: the contingent nature of success, and the quality of work performed. Id. (quotation marks omitted). In adjusting the lodestar to account for the risk factor, the trial court must assess the likelihood of success at the outset of the litigation. Id. at 541 (internal citations and quotation marks omitted). This is necessarily an imprecise calculation and must largely be a matter of the trial court’s discretion. Id.

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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CIVIL RIGHTS: Informal Custom & Local Governmental Liability

by Gregory Williams, Esq. | Under U.S. Federal laws, can a plaintiff base a civil rights lawsuit against a city upon custom — even if the custom was not officially established? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

INFORMAL GOVERNMENT CUSTOM

Local governmental entities may be sued for constitutional deprivations visited pursuant to governmental custom, even though such a custom has not received formal approval through the entity’s official decision-making channels. City of St. Louis v. Praprotnik, 485 U.S. 112, 121, 108 S. Ct. 915, 99 L. Ed. 2d 107, 14 Fed. R. Serv. 3d 412 (1988) (quotation marks omitted). And showing a longstanding practice or custom which constitutes the standard operating procedure of the local government entity is one way to establish municipal liability; a plaintiff need not show a series of similar acts. Ulrich v. City and County of San Francisco, 308 F.3d 968, 984 (9th Cir. 2002) (citations omitted) (quotation marks omitted).

NON-POLICYMAKERS: CHEW V. GATES

In Chew v. Gates, 27 F.3d 1432 (9th Cir. 1994) a police officer turned a police dog loose on Chew and it assaulted Chew directly causing injury; the city argued that the unofficial policy of using dogs to apprehend suspects was attributable only to the non-policymaking officers responsible for training the canine units and not the police chief or commission — policymaking officials. Id. The court found that a city could not escape liability for the consequences of established and ongoing departmental policy simply by permitting such basic policy decisions to be made by lower level officials who are not ordinarily considered policymakers. Id. Furthermore, the court held that if the city in fact permitted departmental policy regarding the use of canine force to be designed and implemented at lower levels of the department, a jury could, and should, nevertheless find that the policy constituted an established municipal custom or usage regarding the use of police dogs for which the city is responsible. Thus, the court held that the city acted under color of law in injuring Chew. Id.

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced civil rights attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

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Notice Requirements for Default and Judgment In WA

by Gregory Williams, Esq. | Under Washington State law,  what are the default and Judgment notice requirements when the responding party’s appearance is in dispute? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

POLICY

In the State of Washington, default judgments are supported by the policy that an orderly system of justice requires compliance with judicial process and finality to judicial proceedings. Ellison v. Process Systems inc. Const. Co., 112 Wash. App. 636, 50 P.3d 658 (Div. 3 2002) (quoting Griggs v. Averbeck Reality, Inc., 92 Wash.2d 576, 581, 599 P.2d 1289 (1979)). Moreover, the appellate courts have observed that the need for a responsive and responsible legal system mandates that parties comply with a judicial summons in upholding default orders and judgments. Griggs v. Averbeck Realty, Inc., 92 Wn.2d 576, 599 P.2d 1289 (1979); Norton v. Brown, 99 Wn.App. 118, 992 P.2d 1019 (1999). As our Supreme Court has recently noted: “Litigation is inherently formal. All parties are burdened by formal time limits and procedures.” Rosander v. Nightrunners Transport, Ltd., 147 Wn.App. 392, 196 P.3d 711 (Div. II 2008) (court affirmed trial court’s denial of defendant’s motion to vacate default order and judgment). Ultimately, the decision on a motion to vacate an order of default or a default judgment is within the sound discretion of the trial court. Estate of Stevens, 94 Wn. App. 20, 971 P.2d 58 (Div. II 1999).

NOTICE REQUIREMENTS

In light of the foregoing, as of the date of this article the relevant notice requirement for default and judgment pursuant to Civil Rule 55(a)(3) (visit the official State website for the most current version of the law) is generally as follows:

Any party who has appeared in the action for any purpose shall be served with a written notice of motion for default and the support affidavit at least 5 days before the hearing on the motion. Any party who has not appeared before the motion for default and supporting affidavit are filed is not entitled to a notice of the motion, except as provided in rule 55(f)(2)(A).

Civil Rule 55(a)(3) (emphasis added). Civil Rule 55(f)(2)(A) states as follows:

(f) How Made After Elapse of Year.

(2) Service. Service of notice of the time and place on the application for the order of default or default judgment shall be made as follows:

(A) by service upon the attorney of record;

CR  55(f)(2)(A).

APPEARANCE

Whether a party has “appeared” is generally a question of intention, as evidenced by acts or conduct, such as the indication of a purpose to defend or a request for affirmative action from the court, constituting a submission to the court’s jurisdiction. City of Des Moines v. $81,231, 87 Wn. App. 689, 696, 943 P.2d 669 (Div. I 1997) (emphasis added). Keep in mind that CR 55 is intended to protect those parties who, although delaying in the formal sense by failing to file pleadings within the prescribed period, have otherwise indicated to the moving party a clear purpose to defend the lawsuitEllison, 112 Wash. App. 636, 642, 50 P.3d 658 (Div. 3 2002) (emphasis added) (internal quotations omitted).

As an aside, the Supreme Court narrowed the Substantial Compliance Doctrine in 2007 when it held that parties cannot substantially comply with the appearance rules through prelitigation contacts. Parties must take some action acknowledging that the dispute is in court before they are entitled to a notice of default judgment hearing. Morin v. Burris, 160 Wn.2d 745, 161 P.3d 956 (2007).

CONCLUSION

Thus, the notice requirements for a party seeking default against another will depend on whether the defaulting party has appeared. A party who has not appeared before the motion for default and supporting affidavit are filed is not entitled to a notice of the motion, except as provided in rule 55(f)(2)(A); whereas any party who has appeared in the action for any purpose shall be served with a written notice of motion for default and the support affidavit at least 5 days before the hearing on the motion.

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

–gw

 

Citing Unpublished Opinions In Washington

by Gregory Williams, Esq. | Under Washington State Court Rules, may a party to a lawsuit cite as authority an unpublished appellate court opinion? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

GENERAL RULE 14.1

Washington State Court Rule: General Rule 14.1 is the relevant rule, and, as of the date of this article (visit the official website for most current version of the rule), it states as follows:

(a) Washington Court of Appeals. Unpublished opinions of the Court of Appeals are those opinions not published in the Washington Appellate Reports. Unpublished opinions of the Court of Appeals have no precedential value and are not binding on any court. However, unpublished opinions of the Court of Appeals filed on or after March 1, 2o13, may be cited as nonbinding authorities, if identified as such by the citing party, and may be accorded such persuasive value as the court deems appropriate.

(b) Other Jurisdictions. A party may cite as an authority an opinion designated “unpublished,” “not for publication,” “non-precedential,” “not precedent,” or the like that has been issued by any court from a jurisdiction other than Washington state, only if citation to that opinion is permitted under the law of the jurisdiction of the issuing court.

(c) Citation of Unpublished Opinions in Subsequent Opinions. Washington appellate courts should not, unless necessary for a reasoned decision, cite or discuss unpublished opinions in their opinions.

(d) Copies of Unpublished Opinions. The party citing an unpublished opinion from a jurisdiction other than Washington shall file and serve a copy of the opinion as an appendix to the pleading in which the authority is cited.

GR 14.1 Washington State Court Rules (emphasis added).

Thus, a party is no longer prohibited from citing unpublished opinions of the Court of Appeals as nonbinding authorities if they are filed on or after March 1, 2o13; however, the citing party must identify to the court that the cited authority is nonbinding. Because the court may accord these opinions such persuasive value as it deems appropriate, unpublished opinions may tip the scales in your favor, depending on the circumstances.

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

–gw

 

Monell Liability


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by Gregory Williams, Esq. | Can a municipality, local government unit, or local government official be subject to liability for violation of civil rights? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

42 U.S.C. § 1983

To state a claim under 42 U.S.C. § 1983 (§ 1983)–Civil Action For Deprivation of Rights–a plaintiff must not only allege the violation of a right secured by the Constitution and laws of the United States, the plaintiff must also show that the alleged deprivation was committed by a “person” acting under color of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40, 56 USLW 4664 (1988) (citation omitted) (quotation marks omitted). If a defendant’s conduct satisfies the state action requirement of the Fourteenth Amendment, that conduct is also action under color of state law and will support a suit under §1983. Id. at 49 (quotation marks omitted).

MUNICIPALITIES, LOCAL GOVERNMENT UNITS, & LOCAL GOVERNMENT OFFICIALS

Under § 1983–which imposes liability upon every person who, acting under color of the law of any state or territory or the District of Columbia, causes a deprivation of federal rights–municipalities, local government units, and local government officials sued in their official capacities are “persons” and can be subject to liability. 14A C.J.S. Municipalities § 433 (citing Monell v. Department of Social Services of City of New York, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978); 42 U.S.C.A. § 1983; 14A C.J.S. Official Capacity Actions, § 445 (2006) (citing Monell, 436 U.S. 658, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978)).  And a municipal official under a § 1983 action in his or her official capacity is treated as an action against the municipality entity itself. 14A C.J.S. Official Capacity Actions, § 445 (2006) (citations omitted).

ESTABLISHING LIABILITY

In order to establish Monell liability against municipalities, local government units, and local government officials sued in their official capacities, a plaintiff must show a constitutional right violation resulting from either (A) an employee acting pursuant to an expressly adopted official policy; (B) an employee acting pursuant to a longstanding practice or custom; or (C) an employee acting as a final policymaker. Delia v. City of Rialto, 621 F.3d 1069, 1081-82 (9th Cir. 2010) (citing Webb v. Sloan, 330 F.3d 1158, 1164 (9th Cir.2003); see Ulrich v. City & County of San Francisco, 308 F.3d 968, 984-85 (9th Cir.2002); Gillette v. Delmore, 979 F.2d 1342, 1346-47 (9th Cir.1992)) (quotation marks omitted).


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L E A R N M O R E

If you would like to learn more, then consider contacting an experienced discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

–gw

Behind Closed Doors: WA ESD Appeals & WLAD


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by Gregory Williams, Esq. | In Washington State, may findings made by an administrative law judge during a Washington State unemployment benefits appeal hearing be admitted in a separate employment discrimination lawsuit, outside the scope of Title 50 RCW, between an individual and the individual’s present or prior employer? Here’s my point of view (NOTE: please read our Disclaimer, Terms of Use, & Privacy Policy before proceeding).

Occasionally, one of my employment discrimination clients (I only represent employees) will vigorously attempt to convince me that they received favorable findings against their employer during their unemployment benefits appeal conducted through the Washington State Office of Administrative Hearings; and that the findings will help them win their subsequent discrimination lawsuit under the Washington Law Against Discrimination (WLAD). Unfortunately, I usually have bad news for those clients.

THE ESD

The Washington State Employment Security Department (ESD) was created in 1939. Its mission is to “partner to connect employers and job seekers – supporting transitions to new jobs and empowering careers.” If an individual applies for unemployment benefits through the ESD and is denied; then the individual can request an appeal. In that case, the ESD will forward the appeal to the Washington State Office of Administrative Hearings (OAH) which is not part of the ESD. The OAH will then assign an administrative law judge to hear the case.

TITLE 50

The state laws relating to the ESD are contained in Title 50 RCW; and the relevant law states as follows:

Any finding, determination, conclusion, declaration, or final order made by the commissioner, or his or her representative or delegate, or by an appeal tribunal, administrative law judge, reviewing officer, or other agent of the department for the purposes of Title 50 RCW, shall not be conclusive, nor binding, nor admissible as evidence in any separate action outside the scope of Title 50 RCW between an individual and the individual’s present or prior employer before an arbitrator, court, or judge of this state or the United States, regardless of whether the prior action was between the same or related parties or involved the same facts or was reviewed pursuant to RCW 50.32.120.

RCW 50.32.097 (emphasis added).

CONCLUSION

Thus, findings made by an administrative law judge during a Washington State unemployment benefits appeal hearing are generally not admissible in a subsequent employment discrimination lawsuit outside the scope of Title 50 RCW between the employee and the employee’s present or prior employer.


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L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

–gw

WA State District Court Civil Actions & Proceedings


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by Gregory Williams, Esq. | In Washington State, what are the civil actions and proceedings that may be brought before County District Courts? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding). This article will not address claim value limitations; see RCW 3.66.020 for more information.

In Washington, County District Court jurisdiction over civil actions and proceedings is limited to the following:

(1) Actions arising on contract for the recovery of money;

(2) Actions for damages for injuries to the person, or for taking or detaining personal property, or for injuring personal property, or for an injury to real property when no issue raised by the answer involves the plaintiff’s title to or possession of the same and actions to recover the possession of personal property;

(3) Actions for a penalty;

(4) Actions upon a bond conditioned for the payment of money, when the amount claimed does not exceed fifty thousand dollars, though the penalty of the bond exceeds that sum, the judgment to be given for the sum actually due, not exceeding the amount claimed in the complaint;

(5) Actions on an undertaking or surety bond taken by the court;

(6) Actions for damages for fraud in the sale, purchase, or exchange of personal property;

(7) Proceedings to take and enter judgment on confession of a defendant;

(8) Proceedings to issue writs of attachment, garnishment and replevin upon goods, chattels, moneys, and effects;

(9) Actions arising under the provisions of chapter 19.190 RCW;

(10) Proceedings to civilly enforce any money judgment entered in any municipal court or municipal department of a district court organized under the laws of this state; and

(11) All other actions and proceedings of which jurisdiction is specially conferred by statute, when the title to, or right of possession of, real property is not involved.

RCW 3.66.020.

WA State County District Courts can be ideal for litigating civil matters depending upon the specific circumstances of your case.

L E A R N   M O R E

If you would like to learn more, then consider visiting your county’s district court website or contacting an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

–gw

Credit Transaction Discrimination in Washington


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by Gregory Williams, Esq. | Under Washington State law, is it unlawful to discriminate with respect to credit transactions? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

WA LAW AGAINST DISCRIMINATION

Under the Washington Law Against Discrimination (WLAD), it’s considered an unfair practice for any person (whether acting for himself, herself, or another) in connection with any credit transaction to engage in any of the following on account of a person’s protected class (i.e., race, creed, color, national origin, sex, marital status, honorably discharged veteran or military status, sexual orientation, disability, or the use of a trained dog guide or service animal by a person with a disability):

(a) deny credit to any person;

(b) increase the charges or fees for or collateral required to secure any credit extended to any person;

(c) restrict the amount or use of credit extended or to impose different terms or conditions with respect to the credit extended to any person or any item or service related thereto;

(d) attempt to do any of the unfair practices as defined above.

See RCW § 49.60.176.

EXCEPTIONS

However, it’s important to note that this law does not prohibit any party to a credit transaction from considering the credit history of any individual applicant; and doesn’t prohibit any party to a credit transaction from considering the application of the community property law to the individual case or from taking reasonable action thereon. Id.

CONSUMER PROTECTION ACT

Significantly, credit transaction discrimination–except in the context of employment and real estate transaction discrimination–committed in the course of trade or commerce as defined in the Consumer Protection Act, RCW §19.86, might be considered, for the purpose of applying that chapter, a matter affecting the public interest, not reasonable in relation to the development and preservation of business, and an unfair or deceptive act in trade or commerce. In other words, a victim of credit transaction discrimination might also have a claim under, inter alia, the Consumer Protection Act. See RCW 49.60.030(3).


L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

–gw

Top 2 Racial Discrimination Agencies in WA State


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by Gregory Williams, Esq. | Under Washington State law, what are the top two governmental agencies that assist employees experiencing, inter alia, racial and/or color employment discrimination? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

1.  U.S. EEOC

The United States Equal Employment Opportunity Commission (EEOC) is responsible for enforcing federal laws that make it illegal to discriminate against a job applicant or an employee because of the person’s race, color, religion, sex (including pregnancy), national origin, age (40 or older), disability or genetic information. Most employers with at least 15 employees are covered by EEOC laws (20 employees in age discrimination cases). Most labor unions and employment agencies are also covered.

The laws apply to all types of work situations, including hiring, firing, promotions, harassment, training, wages, and benefits.

2.  WA HRC

The WA State Human Rights Commission (WAHRC) was established in 1949 by the Washington State Legislature, and is a state agency responsible for administering and enforcing the Washington Law Against Discrimination RCW § 49.60. The term “employer” includes any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons, and does not include any religious or sectarian organization not organized for private profit.

The mission of the WAHRC is to eliminate and prevent discrimination in Washington State through the fair application of the law, efficient use of resources, and establishment of productive partnerships in the community.

L E A R N   M O R E

If you would like to learn more, then consider contacting an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

–gw

TITLE VII: Religious Exemption & Non-Religious Discrimination


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by Gregory Williams, Esq. | Under Title VII of the Civil Rights Act of 1964, are religious organizations exempt from the reach of Title VII discrimination claims NOT based on religion? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

The relevant law is contained in 42 U.S.C. §2000e-1(a) as follows:

(a) Inapplicability of subchapter to certain aliens and employees of religious entities.

This subchapter shall not apply to an employer with respect to the employment of aliens outside any State, or to a religious corporation, association, educational institution, or society with respect to the employment of individuals of a particular religion to perform work connected with the carrying on by such corporation, association, educational institution, or society of its activities.

Id. (emphasis added).

Simply put, according to this religious exemption, “Section 702 of the Civil Rights Act of 1964, 78 Stat. 255, as amended, 42 U.S.C. § 2000e-1, exempts religious organizations from Title VII’s prohibition against discrimination in employment on the basis of religion.” Saeemodare v. Mercy Health Services-Iowa Corp., C 05-4136-MWB (US Dist. Ct. N.D. Iowa, Western Division, 2006) (quoting Corporation of Presiding Bishop of Church of Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 327, 329 (1987)) (internal quotation marks omitted) (emphasis added).

Thus, it is my opinion that religious organizations may not claim the religious exemption against a Title VII discrimination claim based on a protected class other than religion; stated differently, the Title VII exemption will only apply to claims of religious discrimination by a religious organization.

L E A R N   M O R E

If you would like to learn more then consider contacting an experienced employment discrimination attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

–gw

Vacation of Default Judgment: The White Test


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by Gregory Williams, Esq. | Under Washington State law, what is the White Test and how is it applied to default judgments? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

In the State of Washington, a party against whom a default judgment has been entered may move for vacation of the default judgment pursuant to CR 60. Courts have traditionally taken four factors into consideration in determining whether a defendant is entitled to vacation of a default judgment under this rule — this is also known as the White Test. See TMT Bear Creek Shopping Center, Inc. v. Petco Animal Supplies, Inc., 140 Wn.App. 191, 200, 165 P.3d 1271 (Wash.App. Div. 1 2007).

The four-part White Test was first articulated by our Supreme Court in White v. Holm, 73 Wash.2d 348, 352, 438 P.2d 581 (1968), as follows:

The discretion which the trial court is called upon to exercise in passing upon an appropriate application to set aside a default judgment concerns itself with and revolves about two primary and two secondary factors which must be shown by the moving party. These factors are: (1) That there is substantial evidence extant to support, at least prima facie, a defense to the claim asserted by the opposing party; (2) that the moving party’s failure to timely appear in the action, and answer the opponent’s claim, was occasioned by mistake, inadvertence, surprise or excusable neglect; (3) that the moving party acted with due diligence after notice of entry of the default judgment; and (4) that no substantial hardship will result to the opposing party.

TMT Bear Creek Shopping Center, Inc., 140 Wn.App. at 91, 200-01.

The court in White further held that the four elements “vary in dispositive significance as the circumstances of the particular case dictate.” Id. at 201 (citing White, 73 Wash.2d at 352, 438 P.2d 581).  The court elaborated:

[W]here the moving party is able to demonstrate a strong or virtually conclusive defense to the opponent’s claim, scant time will be spent inquiring into the reason as which occasioned entry of the default, provided the moving party is timely with his application and the failure to properly appear in the action in the first instance was not willful. On the other hand, where the moving party is unable to show a strong or conclusive defense, but is able to properly demonstrate a defense that would, prima facie at least, carry a decisive issue to the finder of the facts in a trial on the merits, the reasons for his failure to timely appear in the action Before the default will be scrutinized with greater care, as will the seasonability of his application and the element of potential hardship on the opposing party.

Id. at 201 (citing White, 73 Wash.2d at 352-53, 438 P.2d 581) (emphasis added).

Learn More

If you would like to learn more, then consider contacting an experienced attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article; please refer to our Disclaimer, Terms of Use & Privacy notice for more information.

–gw

The Safety Camera Infraction Presumption


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by Gregory Williams, Esq. | Under Washington State law, what is the Safety Camera Infraction Presumption? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

If you’re the unlucky recipient of safety camera infraction in the State of Washington and you’re the registered owner of the vehicle that was ticketed, then you may face a fundamental presumption known as the Safety Camera Infraction Presumption — essentially, the presumption is that you are the person operating the vehicle when the violation occurred.

The relevant law is RCW 46.63.075(1) and it states as follows:

In a traffic infraction case involving an infraction detected through the use of an automated traffic safety camera under RCW 46.63.170 or detected through the use of an automated school bus safety camera under RCW 46.63.180, proof that the particular vehicle described in the notice of traffic infraction was in violation of any such provision of RCW 46.63.170 and 46.63.180, together with proof that the person named in the notice of traffic infraction was at the time of the violation the registered owner of the vehicle, constitutes in evidence a prima facie presumption that the registered owner of the vehicle was the person in control of the vehicle at the point where, and for the time during which, the violation occurred.

RCW 46.63.075(1).

THE EXCEPTION

As the registered owner, an individual may overcome the Safety Camera Infraction Presumption by stating under oath in a written statement to the court or in testimony before the court that the vehicle involved was, at the time, stolen or in the care, custody, or control of some person other than the registered owner. RCW 46.63.075(2). Obviously, you want to tell the truth throughout the process.

L E A R N   M O R E

If you would like to learn more then consider contacting an experienced attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

–gw

Job Offers & Negligent Misrepresentation


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by Gregory Williams, Esq. | Under Washington State law, may an individual claim negligent misrepresentation against a prospective employer when that employer both misrepresented a job offer that was instrumental in causing the individual to give up her employment elsewhere and caused the individual to suffer associated financial losses? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

Restatement (Second) of Torts

The Washington State Supreme Court reaffirmed its adoption of the definition of negligent misrepresentation set forth in the Restatement (Second) of Torts:

One who, in the course of his business, profession or employment, or in any other transaction in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.

Lawyers Title Ins. Corp. v. Baik,, 147 Wn.2d 536, 545, 55 P.3d 619 (Wash. 2002) (internal quotation marks and citations omitted).

Elements of Negligent Misrepresentation

Thus, a plaintiff claiming negligent misrepresentation must prove the following by clear, cogent, and convincing evidence:

  1. the defendant supplied information for the guidance of others in their business transactions that was false,
  2. the defendant knew or should have known that the information was supplied to guide the plaintiff in his business transactions,
  3. the defendant was negligent in obtaining or communicating the false information,
  4. the plaintiff relied on the false information,
  5. the plaintiff\’s reliance was reasonable, and
  6. the false information proximately caused the plaintiff damages.

Ross v. Kirner, 162 Wash.2d 493, 499, 172 P.3d 701 (2007) (internal citations and question marks omitted).

Conclusion

An omission alone cannot constitute negligent misrepresentation, since the plaintiff must justifiably rely on a misrepresentation. See Austin v. Ettl, 286 P.3d 85, 89 (Wash.App. Div. 2 2012) (internal citations and question marks omitted). But, a plaintiff may properly base his claim of negligent misrepresentation on the terms of a defendant-employer’s job offer. Flower v. T.R.A. Industries, Inc., 127 Wn.App. 13, 33, 111 P.3d 1192 (Wash.App. Div. 3 2005) (referencing Chapman v. Marketing Unlimited, Inc., 14 Wash.App. 34, 36, 539 P.2d 107 (1975)) (internal quotation marks omitted).

Ultimately, a claim for negligent misrepresentation may exist if the employer’s misrepresentation was instrumental in causing the plaintiff to give up her employment elsewhere and to suffer the financial losses that followed. See Chapman v. Marketing Unlimited, Inc., 14 Wn.App. 34, 36, 539 P.2d 107 (Wash.App. Div. 3 1975).

Learn More

If you would like to learn more, then consider contacting an experienced employment attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article; please refer to our Disclaimer, Terms of Use & Privacy notice for more information.

–gw

Wrongful Interference with Business Relations


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by Gregory Williams, Esq. | Under the Washington State tort of wrongful interference with business relations, may an individual sue another for interfering with a contract? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

TORTIOUS INTERFERENCE WITH BUSINESS RELATIONS

In Washington State, it’s possible to sue an individual for interfering with a contract based on the tort of wrongful interference with business relations, but such a claim must pass a stringent test. Generally, to establish this claim, one must show the following:

(1) The existence of a valid contractual relationship or business expectancy;

(2) knowledge of the relationship or expectancy on the part of the interferor;

(3) intentional interference inducing or causing a breach or termination thereof; and

(4) resultant damage.

PRIVILEGE

In some cases, the interferor may claim that their alleged tortious interference with business relations is privileged; and thereby eliminate the basis for tort recovery.

A privilege to interfere may be established if the interferor’s conduct is deemed justifiable, considering such factors as: the nature of the interferor’s conduct; the character of the expectancy with which the conduct interferes; the relationship between the various parties; the interest sought to be advanced by the interferor; and the social desirability of protecting the expectancy or the interferor’s freedom of action.

Learn More

If you would like to learn more, then consider contacting an experienced contract attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article; please refer to our Disclaimer, Terms of Use & Privacy notice for more information.

–gw

Imputing Income: Unemployment & Underemployment


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by Gregory Williams, Esq. | Under Washington State child support laws, how do courts determine whether to impute income for a parent? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

IMPUTING INCOME

Washington State child support laws establish both how to determine whether to impute income for a parent and its proper calculation. The court shall impute income to a parent when the parent is voluntarily unemployed or voluntarily underemployed. Wash.Rev.Code §26.19.071(6). Accordingly, the court determines whether the parent is voluntarily underemployed or voluntarily unemployed based upon that parent’s work history, education, health, and age, or any other relevant factors. Id. In the absence of records of a parent’s actual earnings, the court shall impute a parent’s income in the following order of priority:

(a) Full-time earnings at the current rate of pay;

(b) Full-time earnings at the historical rate of pay based on reliable information, such as employment security department data;

(c) Full-time earnings at a past rate of pay where information is incomplete or sporadic;

(d) Full-time earnings at a minimum wage in the jurisdiction where the parent resides if the parent has a recent history of minimum wage earnings, is recently coming off public assistance, aged, blind, or disabled assistance benefits, pregnant women assistance benefits, essential needs and housing support, supplemental security income, or disability, has recently been released from incarceration, or is a high school student;

(e) Median net monthly income of year-round full-time workers as derived from the United States bureau of census, current population reports, or such replacement as published by the bureau of census.

Id.

EXCEPTIONS

However, there are exceptions. Generally, a court will not impute income to a parent who is gainfully employed on a full-time basis, unless the court finds that the parent is voluntarily underemployed and finds that the parent is purposely underemployed to reduce the parent’s child support obligation. Id. In addition, income is generally not imputed for an unemployable parent. Id. Lastly, income is usually not imputed to a parent to the extent the parent is unemployed or significantly underemployed due to the parent’s efforts to comply with court-ordered reunification efforts under Chapter 13.34 RCW or under a voluntary placement agreement with an agency supervising the child. Id.

L E A R N   M O R E

If you would like to learn more then consider contacting an experienced employment discrimination attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

–gw

Negative Defenses & Federal Court


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by Gregory Williams, Esq. | In Federal court, may a defendant plead “negative” defenses in an answer to a complaint? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

AFFIRMATIVE DEFENSES

Under the meaning of Fed.R.Civ.P. 8(c), an affirmative defense is a defense that does not negate the elements of the plaintiff’s claim, but instead precludes liability even if all of the elements of the plaintiff’s claim are proven. Lane v. Page, 272 F.R.D. 581, 598 (D.N.M. 2011) (internal citation omitted) (quotation marks omitted). The burden for establishing affirmative defenses generally lies on the defendant. Id. (internal citation omitted) (quotation marks omitted).

NEGATIVE DEFENSES

However, negative defenses are merely rebuttal to Plaintiff’s claims and should be stricken; the Courts have held these so-called affirmative defenses (or negative defenses) simply provide a basis to negate an element of the prima facie case for relief and are restatements of denials present in earlier parts of the complaint. Id. (citing Barnes v. AT & T Pension Ben. Plan-Nonbargained Program, 718 F.Supp.2d 1167, 1174 (N.D. Cal. 2010) (striking eight “negative” defenses); See Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1088 (9th Cir.2002) (finding that a defense which demonstrates that plaintiff has not met its burden of proof [as to an element plaintiff is required to prove] is not an affirmative defense) (internal citations and quotation marks omitted).

IMPLICATIONS

Bottom line, it appears that negative defenses should be stricken as a defense; but a fundamental consideration is whether the time, expense, and risk in bringing an associated motion is outweighed by the benefit. Obviously, that is only a question for a party or party representative to answer relative to their particular matter.

L E A R N   M O R E

If you would like to learn more then consider contacting an experienced employment discrimination attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

–gw

Interpreting A Release In WA State


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by Gregory Williams, Esq. | How are releases interpreted in the State of Washington? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

DEFINITION OF RELEASE

In Washington State, a “release” has been defined as a contract in which one party agrees to abandon or relinquish a claim or cause of action against another. Boyce v. West, 71 Wn.App. 657, 862 P.2d 59 (Div. 3 1993).

CONTRACT LAW & OBJECTIVE MANIFESTATION THEORY OF CONTRACTS

Washington courts apply basic principles of contract law to releases. Saben v. Skagit County, 136 Wn.App. 869, 152 P.3d 1034 (Div. 1 2006). Moreover, Washington courts follow the objective manifestation theory of contracts, looking for the parties’ intent as objectively manifested rather than their unexpressed subjective intent. See Renfro v. Kaur, 156 Wn.App. 655, 662, 235 P.3d 800, 802 (Div. 1 2010), rev denied, 170 Wn.2d 1006, 245 P.3d 227 (2010)(internal quotation marks omitted)(citation omitted).

THE CONTEXT RULE

The context rule is used for interpretation. Western Washington Corp. of Seventh-Day Adventists v. Ferrellgas, Inc., 102 Wn.App. 488, 495-96, 7 P.3d 861 (Div. 2 2000), rev. denied, 143 Wn.2d 1003, 21 P.3d 292 (Wash. 2001)(quotation marks and internal citations omitted). Thus, Washington courts determine intent not only from the actual language of the release, but also from viewing the release as a whole, the subject matter and objective of the release, all the circumstances surrounding the making of the release, the subsequent acts and conduct of the parties to the release, and the reasonableness of the respective interpretation advocated by the parties. See id. at 495 (quotation marks and internal citations omitted).

EXTRINSIC EVIDENCE

Extrinsic evidence may be used to determine the meaning of specific words used. Marshall v. Thurston County, 165 Wn.App. 346, 351, 267 P.3d 491 (Div. 2 2011) (internal quotation marks and citations omitted). However, standard dictionary definitions of words are generally accepted as the ordinary and common meaning. Allstate Ins. Co. v. Neel, 25 Wn.App. 722, 725, 612 P.2d 6 (Div. 1 1980) (court utilized Merriam-Webster Dictionary to define the term “own” and determined that the parent’s auto policy did not cover child).

It is important to note that extrinsic evidence may not be used (1) to establish a party’s unilateral or subjective intent as to the meaning of a contract word or term; (2) to show an intention independent of the instrument, or (3) to vary, contradict, or modify the written word. Renfro v. Kaur, 156 Wn.App. 655, 661, 235 P.3d 800, 802 (Div. 1 2010), rev denied, 170 Wn.2d 1006, 245 P.3d 227 (2010)(quotation marks and internal citations omitted).

L E A R N   M O R E

If you would like to learn more then consider contacting an experienced attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

–gw

WA State District Court Jurisdictional Caps


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by Gregory Williams, Esq. | How should Washington State District Courts apply jurisdictional caps to multiple defendants in an employment discrimination lawsuit? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

JURISDICTIONAL CAP

The relevant statute is Chapter 3.66.020 RCW, which–as of the date of this article–states as follows:

If the value of the claim or the amount at issue does not exceed one hundred thousand dollars [NOTE: Statutory dollar figures are always subject to change; consequently, visit the Washington State Legislature Website for current dollar figures], exclusive of interest, costs, and attorneys’ fees, the district court shall have jurisdiction and cognizance of the following civil actions and proceedings:

(2) Actions for damages for injuries to the person, or for taking or detaining personal property, or for injuring personal property, or for an injury to real property when no issue raised by the answer involves the plaintiff\’s title to or possession of the same and actions to recover the possession of personal property;

Id. (emphasis added).

MULTIPLE DEFENDANTS

It is unclear whether the jurisdictional cap under RCW 3.66.020–in the case of a single lawsuit in district court against multiple defendants–applies either to the action as a whole or separately as to each group of claims against each individual defendant. However, in 1986, Division 2 of the Washington State Court of Appeals addressed a similar issue in Rasmussen v. Chase. The case created what I call “the Chase Rule”; and to this day, almost 30 years later, no Court has overruled the decision. Rasmussen v. Chase, 720 P.2d 860, 44 Wn.App. 71 (Div. 2 1986).

RASMUSSEN V. CHASE

In Rasmussen, the Chases leased property from Rasmussen in 1980 agreeing to make monthly payments of $2,250. Id. Thereafter, the Chases failed to make lease payments from August 1982 through January 1983. Id. Accordingly, Rasmussen filed three separately ongoing lawsuits in Pierce County District Court against the Chases for rent due: the first lawsuit claimed rent due for August and September 1982; the second lawsuit claimed rent due for October and November 1982; and the third lawsuit claimed rent due for December 1982 and January 1983. Id. All three cases were subsequently consolidated with a combined prayer over the jurisdictional cap for Pierce County District Court. Id. Thus, the Pierce County District Court was presented with a single case containing multiple causes of action “each for rent past due for a unique timeframe“ against the same defendants — the Chases.

The Chases then argued that the single lawsuit contained a prayer amount which was beyond the court’s jurisdiction, and that the court was thereupon divested of jurisdiction. However, on review, the Chase Court held as follows:

In our view [RCW 3.66.020] confers–and limits–jurisdiction over causes of action and not over lawsuits to the extent that the latter are merely vehicles for the former…We conclude that consolidation is proper if the causes of action consolidated, considered separately, are within the District Court’s jurisdictional limits…[The district court’s jurisdiction] depend[s] upon the amount in controversy in a given cause of action.

Rasmussen v. Chase, 720 P.2d 860, 44 Wn.App. 71, 73-74 (Div. 2 1986) (emphasis added).

APPLICATION OF THE CHASE RULE

The Court of Appeals then applied the Chase Rule and held that the first lawsuit was based on one cause of action and within the jurisdictional limit; while the second and third lawsuits should be combined as one cause of action, again within the jurisdictional limit — and jurisdiction was proper even though both causes of action together in one lawsuit were well beyond the jurisdictional limit. See Id.

CONCLUSION & IMPLICATIONS

Thus, I would argue that according to the Chase Rule, Washington District Courts should maintain jurisdiction over an action involving multiple defendants in which the combined value of the claim or amount at issue is above the current statutory cap as long as the causes of action against each individual defendant is below that cap.

One might even be able to take the argument further by asserting that under Chase, the jurisdictional cap in District Court actually applies to causes of action and not individual defendants; thus, based on the above, if you had multiple causes of action against each of multiple defendants, then you would be entitled to seek up to the jurisdictional cap for each cause of action against each defendant.

L E A R N   M O R E

If you would like to learn more then consider contacting an experienced employment discrimination attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

-gw

Co-Worker Discrimination


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by Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD), may a co-worker be held liable for aiding, abetting or encouraging the violation of WLAD? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

PROTECTED CLASSES

The WLAD makes it illegal for an employer to discriminate based on “protected classes” in employment. “protected classes” relating to employment discrimination include race or color; national origin; creed; sex or pregnancy; sexual orientation or gender identity; veteran or military status; presence of any sensory, mental, or physical actual disability or perceived disability; use of a service animal; HIV or hepatitis C; marital status; and age.

AID, ABET, ENCOURAGE OR INCITE

Further, it is an unfair practice for any person to aid, abet, encourage, or incite the commission of any unfair practice, or to attempt to obstruct or prevent any other person from complying with the provisions of this chapter or any order issued thereunder. See RCW 49.60.220. A “person” includes, among other categories, any owner, lessee, proprietor, manager, agent, or employeeSee RCW 49.60.040(19).

Thus, arguably, if a co-worker is considered an “employee”, then that co-worker may be subject to WLAD if she aids, abets, encourages, or incites the commission of any unfair practice or attempts to obstruct or prevent any other person from complying with WLAD; in other words, a co-worker that attempts to or has involved a third person in conduct that would violate WLAD may arguably be subject to liability under WLAD. See Jenkins v. Palmer, 116 Wn.App. 671, 675-76, 66 P.3d 1119 (Div. 2 2003).

JENKINS V. PALMER

In Jenkins v. Palmer, Palmer and Jenkins were co-workers, and Jenkins sued Palmer to recover investment funds; in response, Palmer filed a counterclaim alleging, inter alia, sexual harassment and discrimination under RCW 49.60.220. The Palmer court held that RCW 49.60.220 did not support Palmer’s claim, because the claim was based on acts of harassment committed by a co-worker acting alone. Id. Although broad, RCW 49.60.220 focuses on conduct that encourages others to violate the WLAD; the references to “aid, abet, encourage, or incite” and to “prevent any other person from complying” show that the statute applies only where the actor is attempting to or has involved a third person in conduct that would violate the WLAD. Id. (quotation marks omitted) (emphasis added).

L E A R N   M O R E

If you would like to learn more then consider contacting an experienced employment discrimination attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

-gw

Divorce, Intransigence & Attorney Fees


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by Gregory Williams, Esq. | Under Washington law, may a court award attorney fees in a family law case based on intransigence? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

In Washington state, a court has discretion to award attorney fees when one parent’s intransigence causes the other parent to incur additional legal services, regardless of financial abilities. Burrill v. Burrill, 113 Wn.App. 863, 873, 56 P.3d 993 (2002); In re Marriage of Foley, 84 Wn.App. 839, 846, 930 P.2d 929 (1997). Intransigent conduct includes “foot-dragging” or obstructionist behavior, repeatedly filing unnecessary motions, or making a trial unduly difficult with increased legal costs. In re Marriage of Greenlee, 65 Wn.App. 703, 708, 829 P.2d 1120 (1992).

L E A R N   M O R E

If you would like to learn more then consider contacting an experienced family law attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

-gw

EVIDENCE: Screenshots of Text Messages


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by Gregory Williams, Esq. | Under Washington State Evidence Rule 901(b)(10), may an employee offer screenshots of text messages to prove discrimination? Here’s my point of view (NOTE: please read our Disclaimer, Terms of Use and Privacy Notice before proceeding).

ADMISSION REQUIREMENTS

An employee might be able to offer screenshots of text messages to prove employment discrimination and create a prima facie showing sufficient for a Washington State court to admit the evidence, if the following conditions are met:

  1. the record establishes that the screenshots were authored by the alleged sender;
  2. the texts were sent from the cell number associated with the alleged sender; and
  3. the distinctive characteristics of the messages, taken in conjunction with the circumstances are sufficient to support authentication.

See In re Detention of H.N., 188 Wn.App. 744, 759, 355 P.3d 294 (Div. 1 2015). The fundamental evidence rules regarding text messages can be found under both ER 901(a) and (b), and, ultimately, text-message-screenshot evidence is provable by analogy to ER 901(b)(10) — Electronic Mail (E-mail). Id.

AUTHENTICATION – ER 901(a)

Authentication is a threshold requirement designed to assure that evidence is what it purports to be. In re Detention of H.N., 188 Wn.App. at 751 (internal citations and quotation marks omitted). Under ER 901(a), the requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Id. (internal citations and quotation marks omitted).

Because the proponent must make only a prima facie showing of authenticity for purposes of establishing admissibility, ER 901 is met if the proponent shows enough proof for a reasonable fact finder to find in favor of authenticity. Id. (internal citations and quotation marks omitted). The proponent of offered evidence need not rule out all possibilities inconsistent with authenticity or conclusively prove that evidence is what it purports to be. Id. (internal citations and quotation marks omitted).

LAY OPINIONS, HEARSAY, OR THE PROFFERED EVIDENCE

Because under ER 104 authenticity is a preliminary determination, the court may consider evidence that might otherwise be objectionable under other rules. Id. (internal citations and quotation marks omitted). A trial court may, therefore, rely upon such information as lay opinions, hearsay, or the proffered evidence itself in making its determination. Id. (internal citations and quotation marks omitted). Such information must be reliable, but need not be admissible. Id. (internal citations and quotation marks omitted).

OBJECTIONS AFTER ADMISSION

In making this preliminary determination, the court considers only the evidence offered by the proponent and disregards any contrary evidence offered by the opponent. Id. (internal citations and quotation marks omitted). Once a prima facie showing has been made, the evidence is admissible under ER 901 . Id. at 751-52 (internal citations and quotation marks omitted). The opponent is then free to object on the basis of any other rules that may bar the evidence or offer contradictory evidence challenging authenticity. Id. at 752 (internal citations and quotation marks omitted).

If such contradictory evidence is offered, the authenticity of the proponent’s evidence is ultimately judged by the trier of fact. Id. (internal citations and quotation marks omitted).

ELECTRONIC MAIL – ER 901(b)

Evidence Rule 901(b) offers illustrations of authentication conforming with the requirements of the rule. See id.; ER 901(b). These examples are by way of illustration only, and not by way of limitation. In re Detention of H.N., 188 Wn.App. at 752 (internal citations and quotation marks omitted). They include the following:

(4) Distinctive Characteristics and the Like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

. . .

(10) Electronic Mail(E-mail). Testimony by a person with knowledge that (i) the email purports to be authored or created by the particular sender or the sender’s agent; (ii) the email purports to be sent from an email address associated with the particular sender or the sender’s agent; and (iii) the appearance, contents, substance, internal patterns, or other distinctive characteristics of the email, taken in conjunction with the circumstances, are sufficient to support a finding that the email in question is what the proponent claims.

Id. (internal citations and quotation marks omitted) (emphasis added). Unfortunately, the current version of ER 901(b) does not specifically address text messages. See id. (internal citations and quotation marks omitted).

THE ANALOGY

In the case of In re Detention of H.N., 188 Wn.App. 744, 355 P.3d 294 (Div. 1 2015), Court of Appeals Division 1 used analogy to find that a proponent who attempted to offer screenshots of text messages created a prima facie showing sufficient to admit the evidence. See id. (internal citations and quotation marks omitted).

In Detention of H.N., H.N. argued that the trial court abused its discretion when it admitted as substantive evidence e-mailed screenshots of text messages that the State’s expert witness used during her testimony; but Division 1 disagreed and held that the evidence was properly authenticated pursuant to ER 901(b).

Division One reasoned that the proponent properly authenticated the evidence pursuant to ER 901(b)(10) by analogy: first, H.N. acknowledged sending the text messages; second, the identifying information at the top of the text messages (i.e., sender’s phone number and full name) indicated that H.N. was the sender; third, the content of the text messages (e.g., names of people in H.N.s life) themselves suggested that H.N. was the sender; and fourth, the text messages were consistent with certain events that happened in H.N.s life (e.g., H.N.s text messages stopped at 12:00 a.m. and H.N.s roommate reported that she found H.N unconscious around 12:00 a.m. – 12:30 a.m. the same date).

Accordingly, Division 1 found that the record established that the e-mailed screenshots of text messages were authored by H.N.; that they were sent from the cell number associated with sender-opponent; and, finally, that their distinctive characteristics taken in conjunction with the circumstances were sufficient to support authentication.

For these reasons, Division One concluded that the trial court correctly decided that the State’s prima facie showing was sufficient to admit screenshots of H.N.s text message evidence.

L E A R N   M O R E

If you would like to learn more then consider contacting an experienced attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

-gw

Section 1983 Claims Against Individuals


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by Gregory Williams, Esq. | Under Federal law, may a Section 1983 claim be brought against an individual? Here’s my point of view (NOTE: please read our Disclaimer, Terms of Use, & Privacy notice before proceeding).

Under federal law, Section 1983 claims (42 U.S.C. 1983) may be brought against individuals as well as state entities. Fitzgerald v. Barnstable School Committee, ___ U.S. ___, 129 S.Ct. 788 (2009) (citing West v. Atkins, 487 U.S. 42, 48-51, 108 S.Ct. 2250, 101 L.Ed.2d 40) (emphasis added) (quotation marks omitted). Thus, the traditional definition of “acting under state law” requires that the defendant in a § 1983 action have exercised power possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law. West v. Atkins, 487 U.S. 42, 48, 108 S.Ct. 2250, 101 L.Ed.2d 40, 56 USLW 4664 (1988) (citations omitted). State or local governmental employment is generally sufficient to render the defendant a state actor. See id. at 50. It is firmly established that a defendant in a § 1983 suit acts under color of state law when he abuses the position given to him by the state. West v. Atkins, 487 U.S. 42, 50, 108 S.Ct. 2250, 101 L.Ed.2d 40, 56 USLW 4664 (1988) (citations omitted).

L E A R N   M O R E

If you would like to learn more then consider contacting an experienced employment discrimination attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

-gw

Non-Compete Covenants in Employment


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by Gregory Williams, Esq. | Under Washington State law, what are the general considerations in evaluating a non-compete covenant in employment? Here’s my point of view (NOTE: please read our Disclaimer, Terms of Use, & Privacy notice before proceeding).

Non-compete covenants in employment typically restrict an employee from competing with the drafter/ex-employer; thus, they are also known as restrictive covenants. A restrictive covenant generally exists in the employment context when the performance of the promise would limit competition in any business or restrict the promisor in the exercise of a gainful occupation.

Generally, in Washington State only “reasonable” non-compete covenants in employment are enforceable. However, according to Washington State law, “Every contract, combination, in the form of trust or otherwise, or conspiracy in restraint of trade or commerce is hereby declared unlawful.” RCW 19.86.030.

Consequently, the following test of reasonableness has developed through the evolution of Washington State case law to determine the enforceability of non-compete covenants in employment:

  1. The restraint is no greater than required for the employer’s protection;
  2. The restraint does not impose undue hardship on the employee; and
  3. The restraint is not injurious to the public.

The employer has the burden of proof to establish each of these three elements. Ultimately, it’s important to note that Washington courts tend to modify overbroad non-compete agreements rather than invalidate them.

L E A R N   M O R E

If you would like to learn more then consider contacting an experienced Washington State employment discrimination attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

-gw

Federal Same Actor Inference


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by Gregory Williams, Esq. | Within the scope of federal law, what is the “same actor inference”? Here’s my point of view (NOTE: please read our Disclaimer, Terms of Use, & Privacy notice before proceeding).

SAME ACTOR INFERENCE

The Federal “Same-Actor-Inference” (Inference) is a potential employer defense to a claim of employment discrimination under Federal law. It is applicable where the same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both actions occur within a short period of time; in that case, a strong inference arises that there was no discriminatory action. See Coghlan v. American Seafoods Co. LLC, 413 F.3d 1090, 1096 (9th Cir. 2005) (internal quotation marks and citations omitted). The Inference is based on the principle that an employer’s initial willingness to hire the employee-plaintiff is strong evidence that the employer is not biased against the protected class to which the employee belongs. Id. The Inference can be further described in terms of scope and proximity.

SCOPE

The scope of the Inference makes it also applicable where the employee was not actually fired but merely offered a less desirable job assignment. Id. Moreover, the same-actor inference is neither a mandatory presumption nor a mere possible conclusion for the jury to draw; it is a strong inference that a court must take into account on a summary judgment motion. Id. at 1098. Thus, it is not valid to argue that the Inference is not a proper consideration at summary judgment.

PROXIMITY

As far as proximity; for the Inference to apply it is not required that the alleged discrimination take place within a “short” period of time after the favorable action. For example, a 3-year gap in time was held to be short enough in time for the Inference to apply. Id. at 1097 (citing Schnabel v. Abramson, 232 F.3d 83, 91 (2d Cir.2000) (basing affirmance of summary judgment in an employment discrimination case in part on the fact that the plaintiff “was fired by the same man who had hired him three years earlier”)). However, proximity becomes a potential plaintiff rebuttal when there is an allegation that unlawful bias developed by employer-actor after the favorable action and proximate to the negative employment action. See id.

The bottom line is that the Inference, if properly raised by the employer, is difficult for a plaintiff to overcome.

L E A R N   M O R E

If you would like to learn more then consider contacting an experienced Washington State employment discrimination attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

-gw

Express Direction Rule & Final Judgments


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by Gregory Williams, Esq. | What is the Express Direction Rule and how is it applied to judgments in Washington State Superior Courts? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

CIVIL RULE 54(b)

Washington State Superior Court Civil Rule 54(b) governs entry of judgments on multiple claims and provides that “the court may direct the entry of a final judgment as to one or more but fewer than all of the claims or parties only upon an express determination in the judgment, supported by written findings, that there is no just reason for delay and upon an express direction for the entry of judgment.” Fluor Enterprises, Inc. v. Walter Construction, LTD., 141 Wn.App. 761, 766, 172 P.3d 368, (Div. I 2007) (quotation marks omitted). Accordingly, the courts have held that four things are required for entry of a final judgment under CR 54(b): (1) more than one claim for relief or more than one party against whom relief is sought; (2) an express determination that there is no just reason for delay; (3) written findings supporting the determination that there is no just reason for delay; and (4) an express direction for entry of the judgment. Id. at 766-67 (quotation marks omitted) (emphasis added).

EXPRESS DIRECTION

Washington State appellate courts have clarified that element four (4)–an express direction for entry of the judgment–requires that the trial court’s order must expressly direct entry of a CR 54(b) final judgment or it will not meet the requirements of CR 54(b). Fluor Enterprises, Inc., 141 Wn.App. at 769. In Fluor Enterprises, Inc. there was more than one claim for relief and the trial court’s order on one of the claims did not expressly direct entry of a CR 54(b) final judgment. Consequently, the Court held that the trial court’s order as to that claim did not meet the requirements of CR 54(b). Id.

DELAYED ENTRY OF FINAL JUDGMENT

It is worth noting that Washington State appellate courts have expressly mandated that entry of a final judgment should await the resolution of all claims for and against all parties. Fluor Enterprises, Inc., 141 Wn.App. at 767 (quoting Loeffelholz v. Citizens for Leaders with Ethics and Accountability Now (C.L.E.A.N.), 119 Wn.App. 665, 82 P.3d 1199, rev. denied, 152 Wn.2d 1023, 101 P.3d 107 (2004)) (internal citations omitted). Furthermore, the appellate courts have held that the following reasons justify a trial court’s delay of the entry of a final judgment until all claims had been resolved: “(1) to offset judgments favorable to each side before any enforcement activity takes place; (2) to preclude the disruptive effects of enforcement and appellate activity while trial court proceedings are still ongoing; and (3) to avoid a multiplicity of appeals.” Id. (internal citations and quotation marks omitted).

L E A R N   M O R E

If you would like to learn more then consider contacting an experienced Washington State attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

-gw

WA State Contracts and the Context Rule


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by Gregory Williams, Esq. | What is the Context Rule and how is it applied in the state of Washington? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

Washington courts follow the objective manifestation theory of contracts, looking for the parties’ intent as objectively manifested rather than their unexpressed subjective intent. See Renfro v. Kaur, 156 Wn.App. 655, 662, 235 P.3d 800, 802 (Div. 1 2010), rev denied, 170 Wn.2d 1006, 245 P.3d 227 (2010) (internal quotation marks omitted) (citation omitted). Further, the courts use the context rule of interpretation. Western Washington Corp. of Seventh-Day Adventists v. Ferrellgas, Inc., 102 Wn.App. 488, 495-96, 7 P.3d 861 (Div. 2 2000), rev. denied, 143 Wn.2d 1003, 21 P.3d 292 (Wash. 2001)(quotation marks and internal citations omitted).

Thus, Washington courts determine intent not only from the actual language of the agreement, but also from viewing the contract as a whole, the subject matter and objective of the contract, all the circumstances surrounding the making of the contract, the subsequent acts and conduct of the parties to the contract, and the reasonableness of the respective interpretation advocated by the parties. Id. at 495 (quotation marks and internal citations omitted).

Accordingly, extrinsic evidence is admissible to aid in ascertaining the parties’ intent where the evidence gives meaning to words used in the contract. Renfro v. Kaur, 156 Wn.App. 655, 662, 235 P.3d 800, 802 (Div. 1 2010), rev denied, 170 Wn.2d 1006, 245 P.3d 227 (2010) (quotation marks and internal citations omitted). However, extrinsic evidence may not be used (1) to establish a party’s unilateral or subjective intent as to the meaning of a contract word or term; (2) to show an intention independent of the instrument, or (3) to vary, contradict, or modify the written word. Renfro v. Kaur, 156 Wn.App. 655, 661, 235 P.3d 800, 802 (Div. 1 2010), rev denied, 170 Wn.2d 1006, 245 P.3d 227 (2010)(quotation marks and internal citations omitted).

 


L E A R N   M O R E

If you would like to learn more then consider contacting an experienced Washington State attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

-gw

Renewing Letters of Guardianship for Five Years


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by Gregory Williams, Esq. | Under Washington State law, can Letters of Guardianship be renewed for five years? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

RCW 11.88.127(2)

In the state of Washington, Letters of Guardianship are typically renewed for a period of 12, 24, or 36 months. However, under RCW 11.88.127(2) the Court shall order the clerk to issue Letters of Guardianship that are valid for a period of up to five years from the anniversary date of the appointment. Id. The relevant statute states as follows:

(2) The court shall order the clerk to issue letters of guardianship that are valid for a period of up to five years from the anniversary date of the appointment. When determining the time period for which the letters will be valid, the court must consider: The length of time the guardian has been serving the incapacitated person; whether the guardian has timely filed all required reports with the court; whether the guardian is monitored by other state or local agencies; and whether there have been any allegations of abuse, neglect, or a breach of fiduciary duty against the guardian..

RCW 11.88.127(2) (emphasis added). Thus, in Washington State one may request the court to renew Letters of Guardianship for up to 60 months (5 years) and the likelihood of success will be based in part upon the court’s discretion and ones ability to establish a combination of the four considerations above to the court’s satisfaction.

 


L E A R N   M O R E

If you would like to learn more then consider contacting an experienced Washington State attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

-gw

Vulnerable Adults, Assisted Living Facilities & Financial Exploitation


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by Gregory Williams, Esq. | Under Washington State law, how are vulnerable adults living in assisted living facilities protected from financial exploitation? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

ASSISTED LIVING FACILITIES

In the State of Washington, the definition of a vulnerable adult includes a person admitted to any facility.  RCW §74.34.020. “Facility” means, inter alia, assisted living facilities. Id. Accordingly, a person living in an assisted living facility, or interested person on behalf of the person, may seek relief from financial exploitation or the threat thereof, by filing a petition for an order for protection in superior court. RCW §74.34.110.

FINANCIAL EXPLOITATION

Financial exploitation means the following:

(7) [T]he illegal or improper use, control over, or withholding of the property, income, resources, or trust funds of the vulnerable adult by any person or entity for any person’s or entity’s profit or advantage other than for the vulnerable adult’s profit or advantage. “Financial exploitation” includes, but is not limited to:

(a) The use of deception, intimidation, or undue influence by a person or entity in a position of trust and confidence with a vulnerable adult to obtain or use the property, income, resources, or trust funds of the vulnerable adult for the benefit of a person or entity other than the vulnerable adult;

(b) The breach of a fiduciary duty, including, but not limited to, the misuse of a power of attorney, trust, or a guardianship appointment, that results in the unauthorized appropriation, sale, or transfer of the property, income, resources, or trust funds of the vulnerable adult for the benefit of a person or entity other than the vulnerable adult; or

(c) Obtaining or using a vulnerable adult’s property, income, resources, or trust funds without lawful authority, by a person or entity who knows or clearly should know that the vulnerable adult lacks the capacity to consent to the release or use of his or her property, income, resources, or trust funds.

RCW §74.34.020.

COURT RELIEF

If the court determines that the vulnerable adult is not capable of protecting his or her person or estate in connection with the issues raised in the petition or order, and that the individual continues to need protection, the court shall order relief consistent with RCW §74.34.130 as it deems necessary for the protection of the vulnerable adult. RCW §74.34.135(4) (emphasis added). The relevant portions of RCW §74.34.130 are as follows:

The court may order relief as it deems necessary for the protection of the vulnerable adult, including, but not limited to the following:

(1) Restraining respondent from committing acts of abandonment, abuse, neglect, or financial exploitation against the vulnerable adult;

(2) Excluding the respondent from the vulnerable adult’s residence for a specified period or until further order of the court;

(3) Prohibiting contact with the vulnerable adult by respondent for a specified period or until further order of the court;

(4) Prohibiting the respondent from knowingly coming within, or knowingly remaining within, a specified distance from a specified location;

(5) Requiring an accounting by respondent of the disposition of the vulnerable adult’s income or other resources;

(6) Restraining the transfer of the respondent’s and/or vulnerable adult’s property for a specified period not exceeding ninety days; and

(7) Requiring the respondent to pay a filing fee and court costs, including service fees, and to reimburse the petitioner for costs incurred in bringing the action, including a reasonable attorney’s fee.

Any relief granted by an order for protection, other than a judgment for costs, shall be for a fixed period not to exceed five years. The clerk of the court shall enter any order for protection issued under this section into the judicial information system.

RCW §74.34.130.

Visit WashingtonLawHelp.org to get connected to free self-help resources regarding protecting elders and vulnerable adults from abuse and neglect.

 


L E A R N   M O R E

If you would like to learn more then consider contacting an experienced Washington State attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

-gw

Claim Splitting: Final Judgment on the Merits


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by Gregory Williams, Esq. | Under Washington State law, what is theory of claim splitting? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

THE THEORY

The theory of claim splitting is “variously referred to as res judicata or splitting causes of action.”  Landry v. Luscher, 95 Wn.App. 779, 783, 976 P.2d 1274 (1999); Sound Build Homes, Inc. v. Windermere Real Estate/ South, Inc., 118 Wn.App. 617, 628, 72 P.3d 788 (Wash.App. Div. 2 2003); Schoeman v. New York Life Ins. Co., 106 Wn.2d 855, 859, 726 P.2d 1 (1986).  Res judicata prevents relitigation of claims already decidedHaberman v. Washington Public Power Supply System, 109 Wn.2d 107, 121-22, 744 P.2d 1032 (Wash. 1987) (citing Meder v. CCME Corp., 7 Wash.App. 801, 803, 502 P.2d 1252 (1972)) (emphasis added).  While res judicata bars relitigation of claims necessarily a part of a previous matter in controversy, it poses no bar to claims not in fact adjudicated previously.  Id. at 122 (citing Seattle-First Nat’l Bank v. Kawachi, 91 Wash.2d 223, 226, 588 P.2d 725 (1978)) (holding res judicata did not bar plaintiffs’ claims).  Thus, “the threshold requirement of res judicata is a final judgment on the merits in the prior suit.”  Hisle v. Todd Pacific Shipyards Corp., 151 Wn.2d 853, 865, 93 P.3d 108 (Wash. 2004).

FINAL JUDICIAL JUDGMENT

The general rule for claim splitting is that “if an action is brought for part of a claim, a judgment obtained in the action precludes the plaintiff from bringing a second action for the residue of the claim.”  Landry v. Luscher, 95 Wn.App. 779, 782, 976 P.2d 1274 (1999) (Plaintiffs prohibited from suing for personal injuries after obtaining judgment for property damage arising out of same accident) (emphasis added); see also, Nguyen v. Sacred Heart Medical Center, 97 Wn. App. 728, 987 P.2d 634 (1999) (Plaintiff prohibited from raising a new claim on appeal after summary judgment).  Thus, res judicata will not apply until there has been a final judicial judgment.  See, Phillip A. Trautman, Claim and Issue Preclusion in Civil Litigation in Washington, 60 Wash.L.Rev. 805, 807 (1985) (emphasis added).

EXAMPLES

Here are two examples. First, in Landry v. Luscher, 95 Wn.App. 779, 976 P.2d 1274 (1999), the Plaintiffs were in an auto accident and first obtained a judgment for property damage against the defendant in small claims court.  Id.  Subsequently, the Plaintiffs sued the defendants in superior court for personal injuries arising out of the same accident, and the appellate court upheld the trial court’s dismissal based upon res judicata. Id.

Second, in Nguyen v. Sacred Heart Medical Center, 97 Wn. App. 728, 987 P.2d 634 (1999), the trial court first entered summary judgment against the plaintiffs, and the appellate court refused to allow plaintiffs to bring a subsequent claim of outrage arising out of the same facts, holding, “Allowing a party to shift theories on appeal runs contrary to the purpose of summary judgment”).  Id.

L E A R N   M O R E

If you would like to learn more then consider contacting an experienced Washington State attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

Washington State Priority of Action Rule


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by Gregory Williams, Esq. | Under Washington State law, what is the Washington State Priority of Action Rule? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

The Washington State Priority of Action Rule only applies to coordinate courts within the Washington State court system; it does not apply between coordinate courts of the Federal court system and the Washington State court system. The Rule provides that the first court to obtain jurisdiction over a case possesses exclusive jurisdiction to the exclusion of other “coordinate courts.” Mobile Homes of Wash., Inc. v. Seattle-First Nat’l Bank, 115 Wn.2d 307, 317, 796 P.2d 1276 (1990). Generally, the term coordinate courts as it applies to the Washington Priority of Action Rule refers to courts in different counties within the Washington State court system. See Id. at 323 (holding that the superior court may not consolidate cases pending in different counties in applying the Washington Priority of Action Rule). The courts have been clear on this point.

L E A R N   M O R E

If you would like to learn more then consider contacting an experienced Washington State attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

Washington State Priority of Action Rule and Dual Filings


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by Gregory Williams, Esq. | Under Washington State law, how is the Washington State Priority of Action Rule applied to dual filings involving both state and federal court systems? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

THE RULE

The Washington State Priority of Action Rule only applies to coordinate courts within the Washington State court system; it does not apply between coordinate courts of the Federal court system and the Washington State court system. The Rule provides that the first court to obtain jurisdiction over a case possesses exclusive jurisdiction to the exclusion of other “coordinate courts.” Mobile Homes of Wash., Inc. v. Seattle-First Nat’l Bank, 115 Wn.2d 307, 317, 796 P.2d 1276 (1990). Generally, the term coordinate courts as it applies to the Washington Priority of Action Rule refers to courts in different counties within the Washington State court system. See Id. at 323 (holding that the superior court may not consolidate cases pending in different counties in applying the Washington Priority of Action Rule). The courts have been clear on this point.

WASHINGTON COURTS

For example, in Atlantic Casualty Ins. Co. the court held that the unseemly and expensive jurisdictional conflict that the Washington State Priority of Action Rule is designed to avoid is one superior court trying to correct another. Atlantic Casualty Ins. Co. v. Oregon Mut. Ins. Co., 137 Wn. App. 296, 304, 153 P.3d 211 (Wash.App. Div. 2 2007). This principle was further illuminated by the Washington State Supreme Court in Am. Mobile Homes of Wash., Inc. v. Seattle-First Nat’l Bank, when it held that the Federal courts have their own Priority of Action Rule (Federal Priority of Action Rule) applicable to coordinate courts within the Federal Court System. Mobile Homes of Wash., Inc. v. Seattle-First Nat’l Bank, 115 Wn.2d 307, 317, 796 P.2d 1276 (1990). Thus, it is manifestly evident that there is a distinct Federal Priority of Action Rule and a distinct Washington Priority of Action Rule that do not apply between the court systems.

FEDERAL COURTS

The Federal Circuit Courts including the U.S. Supreme Court have echoed this principle. Undeniably, “[t]he rule is well recognized that the pendency of an action in the state court is no bar to proceedings concerning the same matter in the Federal court having jurisdiction.” Ryan v. Johnson, 115 F.3d 193, 195 (3rd Cir. 1997) (quotation marks omitted). The general rule regarding simultaneous litigation of similar issues in both state and federal courts is that both actions may proceed until one has come to judgment, at which point that judgment may create a res judicata or collateral estoppel effect on the other action. University of Maryland v. Peat Marwick Main & Co., 923, F.2d 265, 275-76 (3rd Cir. 1991) (citing McClellan v. Carland, 217 U.S. 268, 282, 30 S.Ct. 501, 504-505, 54 L.Ed. 762 (1910); Stanton v. Embrey, 93 U.S. 548, 554, 23 L.Ed. 983 (1877)) (quotation marks omitted) (emphasis added).

-The 9th Circuit

The 9th Circuit has held that “[t]he rule that permits simultaneous litigation in state and federal court of overlapping and even identical cases is deeply rooted in our system.” Noel v. Hall, 341 F.3d 1148, 1159 (9th Cir. 2003). Parallel state and federal litigation is inherent in our legal system, and the possibility of duplicative litigation is a price of federalism. Id. (citation omitted). Moreover, the U.S. Supreme court has recognized that the rule can produce inefficient simultaneous litigation in state and federal courts on the same issue, but the Court has held that this is one of the costs of our dual court system. Id. (citing Parsons Steel, Inc. v. First Ala. Bank, 474 U.S. 518, 524-25, 106 S.Ct. 768, 88 L.Ed.2d 877 (1986); Doran v. Salem Inn, Inc., 422 U.S. 922, 928, 95 S.Ct. 2561, 45 L.Ed.2d 648 (1975)).

-Noel v. Hall

The 9th Circuit in Noel explained that “[t]he inefficiencies produced by the rule permitting simultaneous litigation in state and federal court are mitigated by a number of abstention doctrines that permit, and often require, a federal court to abstain in favor of state court litigation” (i.e., Younger abstention, Pullman abstention, Burford abstention, and Colorado River abstention). Id. at 1159-60. “In addition, a federal court may stay its proceedings based on comity even when none of the absention doctrines requires that it do so.” Id. (citing, Deakins v. Monaghan, 484 U.S. 193, 202-03, 108 S.Ct. 523, 98 L.Ed.2d 529 (1988)).

-The US Supreme Court

Poignantly, the U.S. Supreme Court held in Atlantic CoastLine Railroad v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 295, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970):

[T]he state and federal courts had concurrent jurisdiction in this case, and neither court was free to prevent either party from simultaneously pursuing claims in both courts. (emphasis added).

Noel, 341 F.3d at 1159 (citation omitted).

L e a r n   M o r e

If you would like to learn more then consider contacting an experienced Washington State attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

 

United States Anti-Injunction Act and Parallel State Actions


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By Gregory Williams, Esq. | Under United States law, what is the Anti-Injunction Act and how does it apply to parallel state actions? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

THE ANTI-INJUNCTION ACT

Pursuant to the Anti-Injunction Act, 28 U.S.C. 2283, a court of the United States may only grant an injunction to stay proceedings in a State court when based on any of the following exceptions (1) as expressly authorized by Act of Congress, (2) where necessary in aid of its jurisdiction, or (3) to protect or effectuate its judgments. Atlantic CoastLine Railroad v. Brotherhood of Locomotive Engineers, 398 U.S. 281, 282-283, 90 S.Ct. 1739, 26 L.Ed.2d 234 (1970). “In the interest of comity and federalism, the exceptions must be strictly construed.” G.C. & K.B. Inv. v. Wilson, 042303 Fed9 00-56627. “Courts must construe the exceptions to the Anti-Injunction Act narrowly and resolve doubts in favor of letting the state action proceed.” Quackenbush v. Allstate Ins. Co., 121 F.3d 1372, 1378 (9th Cir. 1997). “Rooted firmly in constitutional principles, the Act is designed to prevent friction between federal and state courts by barring federal intervention in all but the narrowest of circumstances.” Sandpiper Villiage Condominium Ass’n., Inc. v. Louisiana-Pacific Corp., 482 F.3d 831, 842 (9th Cir. 2005).

THE FIRST EXCEPTION

Under the first exception of the Anti-Injunction Act, “express authorization,” the Supreme Court has held that the statute governing removal procedures, 28 U.S.C. §1446, provides express authorization to enjoin state proceedings in removed cases.  Id. at 1378 (quotation marks omitted). The relevant portion of 28 U.S.C. §1446(b) follows:

The notice of removal of a civil action or proceeding shall be filed within thirty [30] days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based. (emphasis added)

28 U.S.C. §1446(b).

THE SECOND EXCEPTION

Under the 2nd exception of the Anti-Injunction Act, “in aid of jurisdiction,” “parallel in personam actions in state court seriously impede a federal court’s ability to adjudicate a case only where the state court proceeding threatens to render the exercise of the federal court’s jurisdiction nugatory.” Bennet v. Medtronic, 285 F.3d 801, 806 (9th Cir. 2002) (quoting Winkler v. Eli Lilly & Co. 101 F.3d 1196, 1202 (7th Cir. 1996)) (internal quotes omitted). Consequently, there are “very limited circumstances” in which such a threat is present in personam cases.  Id.  In fact, the threat created by a concurrent State court action is most severe when federal jurisdiction is dependent upon a res. Id. For that reason, the most prominent ‘in aid of jurisdiction’ exception is for in rem actions. Id. (quotation marks omitted).

Thus, the court in Sandpiper established the general rule that where a suit is strictly in personam there is no objection to a subsequent action in another jurisdiction, either before or after judgment, although the same issues are to be tried and determined, because the subsequent action neither ousts the jurisdiction of the court in which the first suit was brought, nor does it delay or obstruct the exercise of that jurisdiction, nor lead to a conflict of authority where each court acts in accordance with the law. Sandpiper Village Condominium Ass’n, 428 F.3d 831 at 844 (9th Circuit held that the US District court did not meet “in aid of jurisdiction exception” and ruled that it violated Anti-Injunction Act when it attempted to enjoin a Minnesota state court from entering judgment) (quotation marks omitted).

THE THIRD EXCEPTION

Under the 3rd exception of the Anti-Injunction Act, “relitigation” exception, a federal court is permitted to prevent state court litigation of an issue that was previously presented to and decided by a federal court. G.C. & K.B. Inv., 042303 Fed9 00-56627 (citing Chick Kam Choo v. Exxon Corp., 486 U.S. 140, 147 (1988)). The “relitigation” exception enables “federal courts to protect the res judicata effect of the judgments.” Sandpiper Village Condominium Ass’n., Inc., 428 F.3d 831 at 847.

Learn More

If you would like to learn more then consider contacting an experienced Washington State attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

Inadvertent Waiver of Res Judicata


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By Gregory Williams, Esq. | Under Washington state law, must the affirmative defense of res judicata be specifically pled? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

The Washington Supreme Court has developed two relevant tests to determine whether a waiver of affirmative defenses has occurred:  (1) waiver based on civil rules; and (2) Common law waiver.  Compare, Farmers Ins. Co. v. Miller, 87 Wash.2d 70, 76, 549 P.2d 9 (1976) (explaining waiver pursuant to civil rules), with Oltman v. Holland America Line USA, Inc., 163 Wn.2d 236, 178 P.3d 981 (2008) (explaining common law doctrine of waiver).  I believe that the affirmative defenses of res judicata, Claim Splitting Doctrine, and Washington Priority of Action Rule must be specifically pled under under the civil rules.

Under CR 8(c), res judicata is listed as an affirmative defense and must be specifically pled.  See, e.g., Rainier Nat. Bank v. Lewis, 30 Wn.App. 419, 422, 635 P.2d 153 (Wash.App. Div. 1 1981) (holding “failure of consideration” is an affirmative defense under CR 8(c) and must be specifically pled) (emphasis added).  Particularly, in order for res judicata to have a preclusive effect the second court must be advised of the prior proceeding and the burden of pleading “res judicata” is listed among the affirmative defensesSee, Phillip A. Trautman, Claim and Issue Preclusion in Civil Litigation in Washington, 60 Wash.L.Rev. 805, 812 (1985) (quotations omitted) (emphasis added).

“Claim Splitting” & “Priority of Action” must also be pled in Answer:  Moreover, although CR 8(c) specifically delineates 20 affirmative defenses, parties must also affirmatively plead “any other matter constituting an avoidance or affirmative defense.”  Beaupre v. Pierce County, 161 Wn.2d 568, 575, 166 P.3d 712 (Wash. 2007).  And pursuant to the civil rules, every defense shall be asserted in the responsive pleading which is one of the following: a complaint, an answer, a reply to a counterclaim, an answer to a cross claim, a third party complaint, and a third party answer.  Lybbert v. Grant County, State of Wash., 141 Wn2d 29, 43, 1 P.3d 1124 (2000) (citing CR 12(b); CR 7(a)).  Thus, in most cases, “claim splitting” and “priority of action” must be specifically pled as affirmative defenses in the defendant’s Answer.

The Washington State Superior Court rule for waiver of affirmative defenses under the civil rules is as follows: if specific defenses are not (1) affirmatively pled, (2) asserted with a motion under CR 12(b), or (3) tried by the express or implied consent of the parties, they will be deemed to have been waived and may not thereafter be considered as triable issues in the case.  Rainier Nat. Bank v. Lewis, 30 Wn.App. 419, 422, 635 P.2d 153 (Wash.App. Div 1 1981) (citing Farmers Ins. Co. v. Miller, 87 Wash.2d 70, 76, 549 P.2d 9 (1976)) (emphasis added).  This affirmative defense requirement will not be abrogated where it affects the substantial rights of the parties.  Rainier Nat. Bank v. Lewis, 30 Wn.App. 419, 422, 635 P.2d 153 (Wash.App. Div 1 1981) (citing cases) (emphasis added).

In Rainier Nat. Bank v. Lewis the plaintiff-bank brought an action to recover funds from a default loan guaranteed by defendants, and defendants specifically plead the affirmative defense of “failure of consideration” for the first time at summary judgment; the court held that defendants failed to specifically plead the affirmative defense “failure of consideration” in their answer and it was therefore waived.  Rainier Nat. Bank v. Lewis, 30 Wn.App. 419, 635 P.2d 153 (Wash.App. Div 1 1981) (emphasis added).

Learn More

If you would like to learn more then consider contacting an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article; please see our Disclaimer, Terms of Use & Privacy notice.

–gw

Landowners, Business Invitees, and Common Areas


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By Gregory Williams, Esq. | In the State of Washington, what is the law regarding landowners, business invitees, and common areas? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

COMMON LAW CLASSIFICATIONS

The common law classification of persons entering upon real property determines the scope of the duty of care owed by the owner or occupier of that property. Mucsi v. Graoch Associates Ltd., 144 Wn.2d 847, 855, 31 P.3d 684 (Wash. 2001) (quotation marks omitted) (citation omitted).

BUSINESS INVITEE

A business invitee is defined as a person who is invited to enter or remain on land for a purpose directly or indirectly connected with business dealings with possessor of the land. Beebe v. Moses, 113 Wn.App. 464, 54 P.3d 188 (Wash.App. Div. 3 2002) (citing, RESTATEMENT (SECOND) OF TORTS § 332 (1965); Younce v. Ferguson, 106 Wash.2d 658, 667, 724 P.2d 991 (1986); McKinnon v. Wash. F. Sav. & Loan Ass’n, 68 Wash.2d 644, 650, 414 P.2d 773 (1966)). A landowner has an affirmative duty to maintain common areas in a reasonably safe condition. Mucsi, 144 at 855 (citation omitted) (quotation marks omitted). An invitee is entitled to expect that a possessor of land will exercise reasonable care to make the land safe for her entry. Restatement (Second) of Torts §343, comment b. Reasonable care requires that landowner to inspect for dangerous conditions, followed by such repair, safeguards, or warning as may be reasonably necessary for the invitee’s protection under the circumstances. Id. (emphasis added).

LANDOWNER LIABILITY

Thus, a possessor of land may be subject to liability for physical harm caused to his invitees by a condition on the land if the possessor: (a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees, and (b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it, and (c) fails to exercise reasonable care to protect them against the danger. Mucsi v. Graoch Associates Ltd., 144 Wn.2d 847, 855-56, 31 P.3d 684 (2001) (quotation marks omitted) (citation omitted). These elements may be further explained as follows:

(a) knows or by the exercise of reasonable care would discover the condition, and should realize that it involves an unreasonable risk of harm to such invitees: Under (a) above a plaintiff must prove (1) the landowner had actual or constructive notice of the danger, and (2) the landowner failed within a reasonable time to exercise sensible care in alleviating the situation. Mucsi, 144 at 859 (citations omitted) (internal quotes omitted) (quotation marks omitted). To prove constructive notice, the plaintiff must prove the specific unsafe condition had existed for such time as would have afforded the landowner sufficient opportunity, in the exercise of ordinary care, to have made a proper inspection of the premises and to have removed the danger. Mucsi, 144 at 859 (citations omitted and internal quotes omitted).

(b) should expect that they will not discover or realize the danger, or will fail to protect themselves against it:  Restatement (Second) of Torts § 343A creates a duty to protect invitees even from known or obvious dangers when a possessor should anticipate the harm despite such knowledge or obviousness. Tincani v. Inland Empire Zoological Soc., 124, Wn.2d 121, 139, 875 P.2d 621 (1994) (emphasis added).

(c) fails to exercise reasonable care to protect them against the danger:  Reasonable care requires the landowner to inspect for dangerous conditions, followed by such repair, safeguards, or warning as may be reasonably necessary for [the invitee’s] protection under the circumstances. Mucsi, 144 Wn.2d 847, 856, 31 P.3d 684 (2001) (quotation marks omitted) (citation omitted).

Learn More

If you would like to learn more then consider contacting an experienced attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.

–gw

Property Interests in Continued Emloyment


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by Gregory Williams, Esq. | Under Washington law, do Washington State civil service employees–that are dischargeable only for cause–have property interests in continued employment? Here’s my point of view (please see our Disclaimer, Terms of Use & Privacy Policy before proceeding).

“The Supreme Court in Goldberg v. Kelly, 397 U.S. 254, 90 S.Ct. 1011, 25 L.Ed.2d 287 (1970), enunciated a two-step process for analyzing cases involving deprivation of a governmental benefit” in violation of due process as follows: (A) “[i]t must first be ascertained whether the interest at issue is a constitutionally protected property or liberty interest”; and (B) “[i]f the interest is a protected one, the court must determine if the deprived beneficiary has been afforded due process”. Belnap v. Chang, 707 F.2d 1100, 1102 (9th Cir. 1983) (internal citations and quotation marks omitted).

In relation to element (A) above, “property interests are not created by the Constitution, they are created, and their dimensions are defined, by existing rules or understandings that stem from an independent source, such as state law…” Cleveland Board of Education v. Loudermill, 470 U.S. 532, 538, 105 S.Ct. 1487, 84 L.Ed.2d 494, 53 USLW 4306 (1985) (internal citations omitted).

Accordingly, the Washington State Supreme Court has held that “protected property interests can arise from express or implied contracts for continued employment, objective representations of tenure, … or even collective bargaining agreements providing for continued employment.” Danielson v. City of Seattle, 108 Wn.2d 788, 796, 742 P.2d 717 (1987) (internal citations omitted). As a result, “constitutionally protected property interests may arise in public employment where civil service laws provide an express or implied contract for continued employment.” Id. (internal citations and quotation marks omitted). Thus, in my opinion one may argue that civil service employees dischargeable only for cause have protected property interests in continued employment. See id. at 796-97 (internal citations omitted).

For example, in Danielson, a Seattle police officer committed theft and was subsequently discharged. The Seattle Municipal Code and the Seattle City Charter established that no civil service employees may be discharged from employment except for cause. As a result, the court held that the police officer had a property interest in continued employment. Danielson, 108 Wn.2d 788, 742 P.2d 717 (1987).

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If you would like to learn more then consider contacting an experienced employment discrimination attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please see our Disclaimer, Terms of Use & Privacy notice.

–gw

WLAD: Changes in Work Schedules


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By Gregory Williams, Esq. | Under the Washington Law Against Discrimination (WLAD) can changes in an employee’s work schedule be considered an adverse employment action pursuant to a claim of unlawful retaliation? Here’s my point of view (please review our Disclaimer, Terms of Use & Privacy Notice before proceeding).

The Washington State Supreme Court, in majority, has not clearly defined the term “adverse employment action”; however, Federal law and the United States Supreme Court offer some useful guidance on the issue of whether changes to an employee’s work schedule constitute an adverse employment action under Washington Law Against Discrimination.

The term “adverse employment action” is not defined in Title VII of the Civil Rights Act of 1964; accordingly, the federal courts have devoted attention to this issue, but they have not reached a consensus. See Islamic Society of Fire Department Personnel v. City of New York, 205, F.Supp.2d 75, 82 (E.D.N.Y. 2002). Some courts, such as the Fifth and Eighth Circuits, have held that an “adverse employment action” relates only to “ultimate employment actions, “such as hiring, firing, promotions and demotions.” Id. (internal citation and quotation marks omitted). However, the Ninth Circuit (which includes Washington state) has adopted the EEOC’s broad definition of an adverse employment action which takes an “expansive view” of what may be considered an adverse employment action. Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000).

Specifically, the Ninth Circuit has held that changes in work schedules is reasonably likely to deter employees from engaging in protected activity and is thus an adverse employment action. Id. The basis for this holding was validated by U.S. Supreme Court in Burlington Northern & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S.Ct. 2405 (2006) (holding that an adverse employment action must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of unlawful conduct by the employer).  

If you believe that you’ve been a victim of unlawful retaliation through changes in work schedules, then it is important consult with an attorney to understand your rights as soon as possible; because if you wait too long to act you may lose some or all of them in relation to your particular matter.

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If you would like to learn more then consider contacting an experienced employment discrimination attorney to discuss your case as soon as possible. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., inc., or the author of this article. Please read our Disclaimer, Terms of Use & Privacy notice.