Harvey-Buschel v. University of Washington

Opinion

4 UNITED STATES DISTRICT COURT 5 WESTERN DISTRICT OF WASHINGTON AT SEATTLE 6 7 PHYLLIS HARVEY-BUSCHEL, Cause No. C20-1775RSL 8 Plaintiff, ORDER GRANTING IN 9 v. PART DEFENDANT’S 10 MOTION FOR SUMMARY UNIVERSITY OF WASHINGTON, JUDGMENT 11

Defendant. 12 13 This matter comes before the Court on “Defendant’s Motion for Summary Judgment.” 14 15 Dkt. # 47. Plaintiff is a former employee of the University of Washington, where she worked as 16 a Continuing Education Coordinator for the Washington State Mathematics, Engineering and 17 Science Achievement (“MESA”) program. MESA is a statewide program designed to increase 18 19 the number of underrepresented minorities and women in science, technology, engineering, and 20 math (“STEM”). Plaintiff oversaw the organization’s contracts with regional MESA K-12 21 centers, providing and managing grant funding for curriculum development and otherwise 22 23 assisting the centers in serving the needs of the target student population. On October 16, 2019, 24 plaintiff was laid off as part of a reorganization that eliminated all existing staff positions in 25 favor of four new staff positions. Plaintiff filed this lawsuit on December 3, 2020, asserting 26 27 claims of disparate treatment, retaliation, and hostile work environment under Title VII and the 28 1 Washington Law Against Discrimination (“WLAD”), wrongful termination in violation of 2 public policy, and violations of the Washington Equal Pay and Opportunities Act (“EPOA”). 3 Defendant seeks summary judgment on all of plaintiff’s claims. 4 5 Summary judgment is appropriate when, viewing the facts in the light most favorable to 6 the nonmoving party, there is no genuine issue of material fact that would preclude the entry of 7 judgment as a matter of law. The party seeking summary dismissal of the case “bears the initial 8 9 responsibility of informing the district court of the basis for its motion” (Celotex Corp. v. 10 Catrett, 477 U.S. 317, 323 (1986)) and “citing to particular parts of materials in the record” that 11 show the absence of a genuine issue of material fact (Fed. R. Civ. P. 56(c)). Once the moving 12 13 party has satisfied its burden, it is entitled to summary judgment if the non-moving party fails to 14 designate “specific facts showing that there is a genuine issue for trial.” Celotex Corp., 477 U.S. 15 at 324. The Court will “view the evidence in the light most favorable to the nonmoving party . . . 16 17 and draw all reasonable inferences in that party’s favor.” Colony Cove Props., LLC v. City of 18 Carson, 888 F.3d 445, 450 (9th Cir. 2018). Although the Court must reserve for the trier of fact 19 genuine issues regarding credibility, the weight of the evidence, and legitimate inferences, the 20 21 “mere existence of a scintilla of evidence in support of the non-moving party’s position will be 22 insufficient” to avoid judgment. City of Pomona v. SQM N. Am. Corp., 750 F.3d 1036, 1049 23 (9th Cir. 2014); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). Factual disputes 24 25 whose resolution would not affect the outcome of the suit are irrelevant to the consideration of a 26 motion for summary judgment. S. Cal. Darts Ass’n v. Zaffina, 762 F.3d 921, 925 (9th Cir. 27 28 1 2014). In other words, summary judgment should be granted where the nonmoving party fails to 2 offer evidence from which a reasonable fact finder could return a verdict in its favor. Singh v. 3 Am. Honda Fin. Corp., 925 F.3d 1053, 1071 (9th Cir. 2019). 4 5 Having reviewed the memoranda, declarations, and exhibits submitted by the parties,1 6 and taking the evidence in the light most favorable to plaintiff, the Court finds as follows: 7 BACKGROUND 8 9 Until Gregory King was hired in February 2019 as the new Executive Director of MESA, 10 plaintiff and the rest of the MESA staff were performing admirably despite significant funding 11 limitations. In 2017, the MESA team was awarded the University’s highest staff honor in 12 13 recognition of those who “help improve our community[] and the world through their hard 14 work, dedication, and selfless spirit.” Dkt. # 56-1 at 2. Rickey Hall, the Vice President of the 15 University’s Office of Minority Affairs and Diversity (“OMA&D”) where MESA is housed, 16 17 congratulated the team on the recognition of their “good and impactful work.” Id. According to 18 Abel Pacheco, the Director of Strategic Engagement in OMA&D who nominated the team for 19 the award, plaintiff 20 21 is creative, brilliant, and kind. She works tirelessly with educators across Washington State, advocating for equity in STEM education for underrepresented 22 students. She works long hours creating STEM curriculum that is engaging, 23 culturally relevant, and relatable for MESA students. She partners with public 24 school educators and administrators statewide to implement MESA programming 25 and curriculum. You can see the admiration and respect being reciprocated 26 1 This matter can be decided on the papers submitted. Plaintiff’s request for oral argument is 27 DENIED. 28 1 between Phyllis and the teachers she partners with when they are working together. The type of leadership and partnership that Phyllis demonstrates in her 2 work is unparalleled and truly helps to ensure the success of MESA programming, 3 as well as the service provided to MESA students. 4 5 Dkt. # 56-2 at 3. Plaintiff’s 2017-2018 performance review was glowing: she is described as 6 “self-directed, well organized and consistent,” an “ideal collaborator and colleague,” and a 7 “visionary and strategic thinker” with a “laser focus[] on the needs of both students and teachers 8 9 [to whom she] consistently deliver[s] high quality STEM programming and services, ” all with 10 an exemplary overall work performance. Dkt. # 56-3 at 4. 11 Defendant points out that it had become clear as early as 2015 that MESA had stagnated, 12 13 prompting its then-Executive Director, James Dorsey, to hire a consulting agency to assess the 14 program and make recommendations. Dorsey opted to make only minimal adjustments 15 following the review, despite pressure from Patricia Loera, the Associate Vice President of 16 17 College Access to whom Dorsey reported, to improve fiscal compliance, data management, and 18 the tracking and reporting of student outcomes. When Dorsey resigned in July 2018, he 19 acknowledged that some issues identified in the consultant’s report “should remain a priority for 20 21 process improvement and operational effectiveness,” including data collection, an operational 22 gap, and staffing capacity. Dkt. # 49 at 15. 23 When King took over the role of Executive Director in February 2019, he was instructed 24 25 by Hall to assess MESA’s strengths, accomplishments, and areas of growth and to implement 26 any needed improvements. King discovered that Dorsey’s lax management style supported a 27 happy workforce but generated a history of compliance, fiscal, and budget issues. As King 28 1 began to call out questionable practices and tighten the reins (for example, he began requiring 2 staff to respond to his inquiries within 15 minutes and to let him know if they were going to be 3 taking vacation or sick leave pursuant to OMA&D’s policies), the MESA staff grew more and 4 5 more unhappy. 6 When King began discussing the need to reorganize the office to (a) create new positions 7 to focus on data collection, analysis, outcomes, development, and financial/technical oversight 8 9 and (b) consolidate the position that supported K-12 programming (the position held by 10 plaintiff) with the position that supported community college programming (the position held by 11 Lucy Casale), staff dissatisfaction increased. Casale and plaintiff took affirmative steps to 12 13 undermine King, or to at least forestall his reorganization plans, meeting with regional MESA 14 directors, complaining to MESA Advisory Board members, and lodging complaints with human 15 resources, Hall, and the University Complaint Investigation and Resolution Office (“UCIRO”). 16 17 During approximately the same time period, King stepped into an on-going process 18 designed to review plaintiff’s job duties and responsibilities and ensure that her official position 19 and grade encompassed those activities. Plaintiff was hired in 2009 as a “Government 20 21 Relations/Curriculum Coordinator.” Over the years, she had taken on increased duties and began 22 using the more accurate title “Director of K-12 Program” in 2015 with the approval of Dorsey. 23 Dkt. # 56 at ¶ 5. When Dorsey left MESA in 2018, he and plaintiff were once again attempting 24 25 to change her official job description/classification to reflect the role she was actually 26 performing. Plaintiff hoped the reclassification would come with or lead to a pay increase and 27 28 1 greater opportunities for career advancement. Plaintiff also made a request for a temporary pay 2 increase to compensate for the increased workload following Dorsey’s departure. Dkt. # 56 at ¶ 3 8. The request was denied,2 and Hall and/or Loera made it clear that they were not supportive of 4 5 any job description/classification changes that would result in an increase in compensation. Dkt. 6 # 56 at ¶ 7-8. 7 Plaintiff’s request for a position review began to move forward again after King was 8 9 hired as the new Executive Director.3 When King requested additional documentation in mid- 10 March regarding plaintiff’s job duties and activities so that he could complete his portion of the 11 paperwork, plaintiff felt that the request reflected a lack of trust regarding her responsibilities 12 13 and activities. She demanded to know why King needed additional information and reminded 14 him that he had been her supervisor for only a few weeks. The interaction did not go well: both 15 King and plaintiff reported the incident to human resources. Plaintiff complained that King was 16 17 bullying and harassing her. Dkt. # 56 at ¶ 11. King reported that plaintiff was being 18 unprofessional, aggressive, hostile, and combative. Dkt. # 48 at ¶ 28. During the subsequent 19 investigation of plaintiff’s complaint in April, she reported that she felt King was discriminating 20 21 against her because of her age and possibly her gender based on “several (more than ten) 22 23 24 2 Plaintiff asserts that the temporary pay increase requests of her MESA co-workers were granted 25 and she was told that Loera denied her request because she was already the most highly paid MESA 26 staff member. Dkt. # 52 at 233. 3 Plaintiff asserts that the position review process had been unjustifiably delayed for at least three 27 months when Leora and/or Hall decided not to take any action until a new Executive Director was hired. 28 1 comments referring to [plaintiff’s] work as ‘outdated’ or ‘useless’ or ‘old’” 4 and manifestations 2 of low regard toward the female members of the MESA team, such as “yelling at us down the 3 hall to come to his office, raising his voice when speaking to us, and standing over us in 4 5 intimidating ways.” Dkt. # 56 at ¶ 12. See also Dkt. # 57-1 at p. 28-31 (Casale responding to 6 defense counsel’s efforts to minimize the “outdated” comments: “You don’t have to say 7 anything about age to let someone know that, you know, you think that that person is outdated 8 9 and ready – you know, for the junk heap”). King first began considering layoffs as part of the 10 MESA reorganization in May. Dkt. # 57-8 at p. 45. 11 In April or May 2019, University Compensation was involved in both the review of 12 13 plaintiff’s position/classification and discussions regarding new positions in a reorganized 14 MESA. University Compensation advised King that some of the work described for one of the 15 “new” positions was duplicative of work plaintiff was then performing and that, if the work 16 17

18 4 Plaintiff was not the only one who got the feeling that King was discriminating against her and the other MESA staff (all of whom were over 55 years old). A MESA Center Director, JR Nobles, 19 noticed early on that something wasn’t right. Although he cannot now remember the exact words used, he remembers how they made him feel: 20 [M]y conclusion at the time was that it was being done because of age. And the 21 evidence[] of the behavior were that they were in stark contrast – suddenly – suddenly, 22 people who had been of high value were no longer of any value, and we were not allowed to communicate with them. And there were other statements that were made that were 23 derogatory statements by Gregory. I didn’t write them down. I wish I would have documented them more at the time, but that indicated that – yeah. 24 I – I remember being uncomfortable when the statements were made. We were in the 25 room at – in the OMAD office, and I think this is one of the first meetings when [King] 26 was – I think this was maybe the only meeting that we had with him in person early on. And I can’t recall the statements, but there were things that made me uncomfortable. 27 Dkt. # 57-12 at pp. 106-07. 28 1 were necessary for the organization, King should retain plaintiff in the role. Dkt. # 57-6 at pp. 2 78. The job descriptions changed as the reorganization took shape, however, and were no longer 3 duplicative when approved by University Compensation. Dkt. # 57-6 at pp. 113-15. Human 4 5 resources subsequently raised other concerns, inquiring how the proposed reorganization would 6 achieve the cost savings and financial benefits King claimed and questioning why it was deemed 7 beneficial to hire consultants for curriculum development instead of having plaintiff continue to 8 9 do the work. Dkt. # 23 at 48-57. 10 In June 2019, plaintiff lodged a complaint with UCIRO. She asserted that her work 11 environment became very stressful after making her March 2019 complaint against King, that he 12 13 gave her a two minute evaluation conference, and that she had reported his retaliatory conduct to 14 human resources to no avail. Dkt. # 52 at 234.5 Plaintiff alleged that OMA&D leadership had 15 “shown that there is a preference to hire, promote and provide incentives to employees from 16 17 mostly one specific ethnicity, with a general tendency to marginalize, discriminate and treat with 18 bias other staff.” Dkt. # 52 at 234.6 She sought UCIRO’s help in obtaining a fair and unbiased 19 20 21 5 Plaintiff had previously complained to human resources about the performance evaluation, 22 noting that King’s “dismissiveness and lack of interest in any discussion” made her “concerned that I am being retaliated against.” Dkt. # 57-8 at 42-45. There is also evidence in the record that King had 23 prohibited MESA’s administrative staff from assisting plaintiff, had prohibited plaintiff from visiting 24 MESA Centers, conducting one-on-one teacher training, or meeting with Center Directors, and was publicly insulting to and dismissive of plaintiff. Dkt. # 57-2 at pp. 87-88; Dkt. # 57-1 at pp. 106-11; Dkt. 25 # 61 at ¶ 7. 26 6 There is evidence in the record that King called plaintiff, who is from Jamaica, “the island girl” or referred to her conduct as “the island way” or her style “as island style.” Dkt. #57-1 at p. 32; Dkt. 27 # 57-10 at p. 245 28 1 decision on her position review request (which was still under consideration at the time) and an 2 inquiry regarding why OMA&D leadership had been hostile to her request for reclassification 3 and dismissive of her concern that she had been working outside the scope of her job duties for 4 5 approximately five years. Plaintiff expressed her interest in “speaking with [UCIRO] more about 6 this Employment bias and discriminatory Treatment.” Dkt. # 52 at 234-35. 7 Ultimately University Compensation concluded that the job duties plaintiff was 8 9 performing fell within the scope of her original 2009 classification as a Curriculum Education 10 Coordinator, Grade 9. Dkt. # 57-6 at p. 84-86. Plaintiff believes the entire process was plagued 11 with procedural irregularities and was unnecessarily lengthy, onerous, and hostile. Following the 12 13 rejection of her reclassification request, plaintiff stopped performing tasks that she deemed to be 14 outside the scope of her position, notwithstanding University Compensation’s recent 15 determination that she was properly classified based on those very duties and responsibilities. In 16 17 September 2019, King confirmed that tasks were not getting done and agreed to investigate 18 whether plaintiff had received a temporary pay increase for the “extra” duties in the past. Dkt. 19 # 56-10 at 3. 20 21 In August 2019, plaintiff and her MESA co-workers, Casale and Ku’ulani Seto, wrote to 22 Hall “to let [him] know of the work situation that the MESA State staff ha[d] been subjected to 23 over the past seven months.” Dkt. # 50 at 13-15. The letter focused on King’s management style, 24 25 but pointed out that the three authors are all over 50 years of age, had heard rumors that they 26 27 28 1 would be forced out, and had cause to believe that their replacement with less costly staff would 2 reflect age discrimination. 3 By October 2019, the plan for reorganizing MESA had been approved. On October 16, 4 5 2019, all MESA staff were laid off. The new positions were posted a few weeks later. Plaintiff 6 did not apply for any of the new positions. Plaintiff and her former colleagues were all over the 7 age of 55 when the University decided MESA had to be reorganized in such a way that they 8 9 were all terminated. The person who was hired to fill the new K-14 Director position (a 10 combination of the positions held by plaintiff and Casale) was 48 years old. Dkt. # 57-16 at pp. 11 7-8. 12 13 UCIRO concluded its investigation of plaintiff’s June 2019 complaint in July 2020. 14 UCIRO found no violation of the University’s antiharassment, antidiscrimination, and 15 antiretaliation policies (Dkt. # 57-11 at p. 21), but it concluded that some of King’s interactions 16 17 with staff did not meet an acceptable professional standard and noted “another concerning theme 18 that came up was what could be viewed as coded age-related language” (Dkt. # 57-11 at p. 33). 19 DISCUSSION 20 21 A. Discrimination Under Title VII and WLAD7 22 A person suffers disparate treatment in employment “when he or she is singled out and 23 treated less favorably than others similarly situated on account of” a protected category such as 24 25

26 7 Plaintiff’s disparate treatment claim under Title VII is limited to national origin discrimination. Age is not a protected category under Title VII, and plaintiff failed to exhaust her administrative 27 remedies with regards to her federal gender discrimination claim. 28 1 age, gender, or national origin. See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1121 (9th Cir. 2 2004) (internal quotation marks and citation omitted). Under the first prong of the framework set 3 forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the plaintiff bears the initial 4 5 burden of establishing a prima facie case of discrimination, thereby raising a presumption of 6 discrimination. Scrivener v. Clark Coll., 181 Wn.2d 439, 446 (2014). Once the plaintiff 7 establishes a prima facie case, the burden of production shifts to the employer to articulate a 8 9 legitimate, nondiscriminatory reason for the adverse employment action. Diaz v. Eagle Produce 10 Ltd. P’ship, 521 F.3d 1201, 1207 (9th Cir. 2008); Grimwood v. Univ. of Puget Sound, Inc., 110 11 Wn.2d 355, 363-64 (1988). “Once the defendant fulfills this burden of production by offering a 12 13 legitimate, nondiscriminatory reason for its employment decision, the McDonnell Douglas 14 presumption of unlawful discrimination ‘simply drops out of the picture.’” Wallis v. J.R. Simplot 15 Co., 26 F.3d 885, 889 (9th Cir. 1994) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 16 17 511 (1993)). At that point, “the ultimate question” remains whether there is a triable issue 18 regarding whether the employer intentionally discriminated against her. St. Mary’s Honor Ctr., 19 509 U.S. at 511. 20 21 To establish a prima facie case of discrimination, a plaintiff must offer proof: (1) that the 22 plaintiff belongs to a class of persons protected by the anti-discrimination statutes; (2) that the 23 plaintiff performed his or her job satisfactorily; (3) that the plaintiff suffered an adverse 24 25 employment action; and (4) “similarly situated individuals outside [plaintiff’s] protected class 26 were treated more favorably, or other circumstances surrounding the adverse employment action 27 28 1 give rise to an inference of discrimination.” Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1156 2 (9th Cir. 2010). See also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). “The 3 requisite degree of proof necessary to establish a prima facie case for Title VII ... claims on 4 5 summary judgment is minimal and does not even need to rise to the level of a preponderance of 6 the evidence.” Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994) (citation omitted). It 7 is undisputed that plaintiff belongs to various protected classes: she is a woman, she is over the 8 9 age of 40, and she is from Jamaica. It is also undisputed that she was performing her job 10 satisfactorily and that her employment was terminated. The issue is whether the circumstances 11 of the termination give rise to an inference of discrimination based on gender, age, and/or 12 13 national origin. 14 Based on the evidence in the record, a reasonable jury could find that plaintiff was 15 terminated because of her age. The language King used when justifying the proposed 16 17 reorganization and describing the shortcomings in plaintiff’s performance/qualifications 18 (including references to the financial benefits of replacing plaintiff and her “outdated” or “old” 19 ideas), third party testimony regarding their contemporaneous impression that King’s 20 21 interactions with plaintiff reflected an age bias, and the fact that every person terminated in the 22 reorganization was within the protected age group create a triable issue of fact regarding 23 defendant’s actual motivations. The same cannot be said for plaintiff’s gender and national 24 25 origin claims, however. Plaintiff’s evidence in that regard is limited to boorish behavior or 26 comments having nothing to do with the reorganization, and the adverse employment action 27 28 1 equally impacted individuals inside and outside of these protected classes.8 Plaintiff’s gender 2 and national origin claims will, therefore, be dismissed. Only her age discrimination claim under 3 the WLAD will be permitted to proceed. 4 5 B. Retaliation in Violation of Title VII and WLAD 6 “To establish a prima facie case of retaliation, an employee must show three things: 7 (1) the employee took a statutorily protected action, (2) the employee suffered an adverse 8 9 employment action, and (3) a causal link between the employee’s protected activity and the 10 adverse employment action.” Cornwell v. Microsoft Corp., 192 Wn.2d 403, 411 (2018) 11 (citations omitted). See Davis v. Team Elec. Co., 520 F.3d 1080, 1093 (9th Cir. 2008). Plaintiff 12 13 argues that King retaliated against her for her March 14, 2019, complaint to human resources by 14 making her work environment unpleasant, taking away resources and job duties, and opting to 15 terminate her employment rather than giving her a position in the reorganized MESA. 16 17 There is no evidence that plaintiff’s March 2019 complaint involved anything other than 18 a complaint about King’s management style and what plaintiff deemed to be his unnecessary 19 demands. Plaintiff states that she first disclosed her concern regarding “age and possibly gender” 20 21 discrimination on April 5, 2019, during an interview with human resources. Dkt. # 56 at ¶ 12. 22 By that point in time, King was already yelling at plaintiff, dismissing her work as outdated and 23 useless, and preventing her from getting assistance from Seto. Id.; Dkt. # 57-1 at p. 98; Dkt. 24 25 # 57-2 at p. 87. A complaint made after these negative events occurred is causally unrelated to 26

27 8 Casale is a Caucasian woman and Seto is a Hawaiian man of Chinese ancestry. 28 1 the negative events. King had also proposed combining plaintiff and Casale’s positions a month 2 earlier and was moving forward with the reorganization plan. Dkt. # 54 at ¶ 4. When, exactly, he 3 decided that plaintiff’s employment would be terminated as part of the reorganization is not 4 5 clear, but the decision was made no later than April or May 2019 when University 6 Compensation commented on the proposed reorganization. King remained unaware that plaintiff 7 had engaged in protected activity until at least June 2019, however. Although he knew that 8 9 plaintiff had complained about his management style, he did not know that she had alleged any 10 form of discrimination or harassment until he received a letter from UCIRO in August 2019 (or 11 possibly when she intimated that she believed her performance evaluation was retaliatory in 12 13 June 2019). Dkt. # 67 at ¶ 2. “[A]n employer cannot retaliate against an employee for an action 14 of which the employer is unaware.” Cornell, 192 Wn.2d at 414. In the absence of evidence 15 suggesting a causal connection between the April 2019 protected activity and the allegedly 16 17 retaliatory conduct, this claim fails as a matter of law. 18 C. Hostile Work Environment Under WLAD9 19 Plaintiff argues that she was subjected to age-coded comments, sporadic “island” 20 21 references, yelling, rudeness, the devaluing of her contributions, a prohibition on using 22 administrative staff, and the removal of job duties after King took over as Executive Director. 23 To establish a prima facie hostile work environment claim, plaintiff must show that “(1) the 24 25 26 9 Plaintiff does not oppose defendant’s motion for summary dismissal of the hostile work 27 environment claim under Title VII. 28 1 harassment was unwelcome, (2) the harassment was because [plaintiff was a member of a 2 protected class], (3) the harassment affected the terms and conditions of employment, and 3 (4) the harassment is imputable to the employer.” Loeffelholz v. Univ. of Wash., 175 Wn.2d 264, 4 5 275 (citation omitted). 6 To determine whether conduct was severe or pervasive enough to affect the terms 7 and conditions of employment, we look at the totality of the circumstances, 8 including the frequency and severity of harassing conduct, whether it was physically threatening or humiliating, or merely an offensive utterance, and 9 whether it unreasonably interfered with the employee’s work performance. 10 Washington v. The Boeing Co., 105 Wn. App. 1, 10 (2000). Whether offensive 11 comments affect the conditions of employment is a factual question. See Davis v. West One Auto. Group, 140 Wn. App. 449, 457 (2007) (holding that employee’s 12 alleged humiliation and self-diagnosed mental sickness from “racially charged” 13 workplace comments raised inference that condition resulted from hostile work 14 environment). But casual, isolated or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently 15 significant degree to violate the law. Washington, 105 Wn. App. at 10. 16

17 Alonso v. Qwest Commc’ns Co., LLC, 178 Wn. App. 734, 751 (2013). While the comments and 18 hostile interactions of which plaintiff complains might not be enough, standing alone, to affect 19 the terms or conditions of her employment, when coupled with the alleged changes to her duties 20 21 and reduction of available resources, a reasonable jury could conclude that the conduct was 22 sufficiently pervasive to create a hostile work environment. Defendant is not entitled to 23 summary dismissal of this claim. 24 25 26 27 28 1 D. Retaliation in Violation of Equal Pay and Opportunities Act 2 The EPOA precludes employers from retaliating against an employee for “inquiring 3 about . . . the employee’s wages or the wages of any other employee” or “asking the employer to 4 5 provide a reason for the employee’s wages or lack of opportunity for advancement.” 6 RCW49.58.040(2)(a) and (b). Plaintiff’s theory seems to be that Hall and Leora directed King to 7 assess and improve the MESA office in retaliation for her request for a position review which 8 9 she hoped – and her superiors feared -- would result in a pay increase. The parties have not 10 identified, and the Court has not found, any cases interpreting the subsections of the EPOA on 11 which plaintiff relies. The Court finds, however, that a request that the employer accurately 12 13 describe an employee’s job responsibilities so that her title and pay grade can be adjusted is 14 reasonably similar to a request that the employer provide a reason for the employee’s wages 15 and/or lack of advancement, especially where the legislature has determined that “policies that 16 17 encourage retaliation or discipline towards workers who discuss or inquire about compensation 18 prevent workers from moving forward.” RCW 49.58.005. 19 Defendant points out that plaintiff took pains to avoid a direct discussion regarding her 20 21 pay, instead focusing the request on obtaining a new job description. There is ample evidence, 22 however, that everyone was aware that an expansion of plaintiff’s official job duties or her 23 elevation to Assistant Director could not only result in a pay raise, but might also trigger a 24 25 retroactive increase. Defendant further argues that the EPOA claim fails in these circumstances 26 because it granted plaintiff’s request for a position review, because there is no evidence that her 27 28 1 position was eliminated because of her request, and because Hall and Leora’s remarks 2 discouraging her from openly pursuing a pay increase do not give rise to an inference of 3 retaliation. Taking the evidence in the light most favorable to plaintiff, a reasonable fact finder 4 5 could conclude that plaintiff’s requests for a temporary pay increase after Dorsey resigned and 6 her pursuit of a new job description and title that would likely come with a permanent pay 7 increase were causally connect to Hall and Leora’s instructions to King and that cost-savings 8 9 were a priority in King’s assessment and reorganization of MESA. Summary judgment as a 10 matter of law is not appropriate. 11 E. Wrongful Discharge in Violation of Public Policy 12 13 As discussed above, plaintiff has raised a genuine issue of material fact regarding her 14 EPOA claim. If she is able to prove at trial that her job was eliminated because she had 15 requested a position review (and related pay increase), her claim would fall within one of the 16 17 scenarios justifying a departure from the terminable-at-will doctrine. Becker v. Cmty. Health 18 Sys., Inc., 184 Wn.2d 252, 258-59 (2015) (recognizing wrongful discharge in violation of public 19 policy where an employee is fired for exercising a legal right or privilege); Danny v. Laidlaw 20 21 Transit Servs., Inc., 165 Wn.2d 200, 207 (2008). 22

23 For all of the foregoing reasons, defendant’s motion for summary judgment (Dkt. # 47) is 24 25 GRANTED in part and DENIED in part. Plaintiff has raised genuine issues of material fact 26 regarding her WLAD age discrimination and hostile work environment claims, her EPOA claim, 27 28 1 and her wrongful discharge in violation of public policy claim. All other claims are 2 DISMISSED. 3

4 5 Dated this 11th day of April, 2022. 6 7 8 Robert S. Lasnik United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28