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FILED NOVEMBER 8, 2022 In the Office of the Clerk of Court WA State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION THREE
SALEH ELGIADI, on behalf of himself ) No. 38784-4-III and all others similarly situated, ) ) Appellant, ) ) v. ) PUBLISHED OPINION ) WASHINGTON STATE UNIVERSITY ) SPOKANE, an agency of the State of ) Washington and THE STATE OF ) WASHINGTON, ) ) Respondents. )
LAWRENCE-BERREY, J. — Settling parties in employment discrimination cases
sometimes include a no-rehire provision in their settlement agreements. In the provision,
the former employee agrees not to seek or accept employment from the former employer.
The question presented here is whether a former employee who settles a claim of
unlawful discrimination may effectively waive their contingent right to be rehired. We
conclude they may and affirm the trial court’s summary judgment rulings. For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 38784-4-III Elgiadi v. Wash. State Univ.
FACTS
Saleh Elgiadi worked for Washington State University (WSU) for 29 years.
During this time, he worked in information technology, eventually becoming the chief
information technology officer for WSU-Spokane’s information technologies systems
(ITS) department. Following a wage dispute, WSU terminated his employment.
Mr. Elgiadi brought suit against WSU and the State of Washington (collectively
the State) alleging breach of contract, promissory estoppel, wrongful termination in
violation of public policy, negligent misrepresentation, intentional misrepresentation,
intentional interference with a business expectancy, retaliation, and age discrimination.
His request for relief included lost wages, benefits, back wages, front pay, double
damages, prejudgment interest, and attorney fees; he did not ask to be reinstated. His
claim for age discrimination was dismissed on summary judgment.1
In early 2020, Mr. Elgiadi and the State entered into a settlement agreement. The
agreement required Mr. Elgiadi to release the State from all claims arising out of his
former employment. In exchange, the State agreed to pay Mr. Elgiadi $295,000. The
1 One of the parties highlighted portions of the letter decision they wanted to emphasize. Highlighting text results in our copy of that text appearing redacted. We encourage parties to underline text they wish to stress so we can read it. Ultimately, and as explained below, the summary dismissal of Mr. Elgiadi’s discrimination claim is irrelevant.
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
agreement contained the following provision, which provides only one limitation on Mr.
Elgiadi’s future employment:
3. As a condition of this settlement, State of Washington requires that Plaintiff agree he will neither seek nor accept employment with WASHINGTON STATE UNIVERSITY-SPOKANE, at any time in the future. . . . The parties agree this required limitation applies only to employment with WSU-Spokane and that it does not prevent Plaintiff for [sic] working for an independent contractor providing services, consulting, acting as a vendor or other contractors providing materials, supplies or services to WSU-Spokane.
Clerk’s Papers (CP) at 30 (emphasis added).
Seven months later, Mr. Elgiadi brought suit against the State. His suit sought
class action status for all former State employees whose discrimination claim settlements
included a no-rehire provision.
Pertinent to the issues on appeal, Mr. Elgiadi’s complaint asserts that the above-
italicized provision—referred to hereafter as the “no-rehire provision”—violates the
public policy behind the Washington Law Against Discrimination (WLAD), chapter
49.60 RCW, violates WLAD’s antiretaliation statute (RCW 49.60.210), and is an
unlawful restraint of trade (RCW 49.62.020). The State denied that the provision violated
those laws and affirmatively asserted defenses—including the defenses of waiver, accord
and satisfaction, equitable estoppel, and judicial estoppel.
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Prior to seeking class certification, Mr. Elgiadi filed a motion for partial summary
judgment requesting the trial court declare the no-rehire provision void and
unenforceable. The State filed a cross motion for summary judgment, requesting
dismissal of Mr. Elgiadi’s claims. The trial court denied the former and granted the latter.
Mr. Elgiadi timely appealed the trial court’s rulings.
LAW AND ANALYSIS
A. Standard of review
We review a trial court’s summary judgment ruling de novo, taking all facts and
inferences in the light most favorable to the nonmoving party. NOVA Contracting, Inc. v.
City of Olympia, 191 Wn.2d 854, 864, 426 P.3d 685 (2018).
B. Strong public policy encourages settlements
Settlement agreements are governed by the legal principles of contract law.
Stottlemyre v. Reed, 35 Wn. App. 169, 171, 665 P.2d 1383 (1983). Mr. Elgiadi does not
dispute that he voluntarily entered into the settlement agreement. Instead, he seeks to
have the no-rehire provision declared void and unenforceable, to have it struck from the
agreement, and to retain the $295,000 paid to him by the State.
Through compromise and settlement, parties agree to dismiss disputed claims by
making mutual concessions. Harding v. Will, 81 Wn.2d 132, 138, 500 P.2d 91 (1972);
4 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
15B AM. JUR. 2D COMPROMISE AND SETTLEMENT AGREEMENTS § 1 (2021). By its
nature, settlement does not secure a party the same vindication that might be won through
litigation. Instead:
Each party generally accepts something less than that to which he believes he is entitled based on a decision that the compromise is more advantageous to him than the sum of the risks and benefits involved in pursuing the claim.
Strozier v. Gen. Motors Corp., 635 F.2d 424, 425 (5th Cir. 1981). The law favors
settlements and the finality they afford. Haller v. Wallis, 89 Wn.2d 539, 544, 573 P.2d
1302 (1978). Washington’s jurisprudence recognizes a strong public policy encouraging
settlements. Am. Safety Cas. Ins. Co. v. City of Olympia, 162 Wn.2d 762, 772, 174 P.3d
54 (2007); City of Seattle v. Blume, 134 Wn.2d 243, 258, 947 P.2d 223 (1997); Seafirst
Ctr. Ltd. P’ship v. Erickson, 127 Wn.2d 355, 366, 898 P.2d 299 (1995).
Generally, a defendant chooses to settle in order to avoid potential liability and
further attorney fees. These purposes would be thwarted if the settling plaintiff could
receive a substantial settlement and then sue the defendant again and cause it to incur
further potential liability and attorney fees. Here, the State sought to ensure this did not
happen by including the no-rehire provision. Without it, Mr. Elgiadi could apply for
rehire, be denied employment even for nonretaliatory reasons, and the State would face
potential liability and further attorney fees.
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
C. The doctrine of severability
Before we address Mr. Elgiadi’s arguments, we discuss what his remedy would be
if he succeeds in having the no-rehire provision declared void and unenforceable.
It is uncontested that the no-rehire provision was material in obtaining the State’s
assent to pay Mr. Elgiadi $295,000. The paragraph containing the no-rehire provision
provides:
The parties understand and agree that [the State] has required this paragraph as a material provision of this Agreement and that any breach of this paragraph shall be a material breach of this Agreement and that the State would be irreparably harmed by violation of this provision.
CP at 30.
After oral argument, we asked the parties for supplemental briefing discussing
what the proper remedy would be were we to invalidate the no-rehire provision. Mr.
Elgiadi argues a provision in a settlement agreement that violates public policy can be
“lined out” in accordance with the “blue pencil test” and the remainder of the agreement
enforced. Appellant’s Suppl. Br. at 2. The State argues the entire agreement fails if the
provision declared unenforceable was objectively material to the parties’ agreement.
Resp’t’s Suppl. Br. at 2-10. We agree with the State.
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
When a court declares a provision in an agreement unenforceable, a question arises
whether the provision is severable from the contract or whether the entire contract fails.
Years ago, our Supreme Court rejected the “blue pencil test” of contract severability:
The enforcement of . . . a contract does not depend upon mechanical divisibility, meaning that offending portions of the covenant can be lined out and still leave the remainder grammatically meaningful and thus enforceable. This is the so-called “blue pencil test.” The better test is whether partial enforcement is possible without injury to the public and without injustice to the parties.
Wood v. May, 73 Wn.2d 307, 313, 438 P.2d 587 (1968).
A more recent analysis of the doctrine of severability occurred in State v.
Chambers, 176 Wn.2d 573, 580-83, 293 P.3d 1185 (2013), where the court applied
contract principles to a criminal plea agreement. In Chambers, the defendant committed a
series of crimes in February and May 1999. Id. at 577-79. He pleaded guilty to those
crimes. Id. at 577-78. Prior to being sentenced, he committed additional crimes in
November 1999. Id. at 578. As part of a global plea deal, the defendant agreed to a 240-
month sentence for his November crimes to be served consecutive to the yet-to-be
imposed sentence for the earlier crimes. Id. at 578-79. The defendant was sentenced for
the February and May crimes, and later was sentenced for the November crimes. Id. at
579-80.
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Years later, a court permitted the defendant to withdraw his guilty plea to the
February crimes. Id. at 580. The withdrawal of that plea resulted in a lower offender
score than that used in the defendant’s sentence for the November crimes. Id. Because
the offender score determines the length of a sentence, the defendant asked to be
resentenced for the November crimes. Id. The trial court refused. Id. We reversed and
our Supreme Court accepted the State’s petition for review. Id.
In Chambers, our high court reviewed the history of the plea deal for the
November crimes. Id. at 581-84. It noted that the 240-month consecutive sentence for
the November crimes was a global plea deal in which the State agreed to allow the
defendant to seek the low end of a standard range sentence for one of the February
crimes. Id. at 581. The Chambers court applied contract law in deciding whether the
defendant’s sentence for the November crimes was severable from the sentence for the
February 1999 crimes: “Whether a contract is divisible or indivisible is dependent upon
the intent of the parties. We look only to objective manifestations of intent, not
unexpressed subjective intent.” Id. at 580-81 (citation omitted). The court concluded that
the 240-month consecutive sentence was a global agreement, not divisible from the
withdrawn guilty plea for the February crimes, and denied the defendant’s request that he
be resentenced for his November crimes. Id. at 583.
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Here, the objective manifestations of the parties establish that settlement was
dependent upon the no-hire provision. The paragraph containing that provision states that
the State “required this paragraph as a material provision,” and its breach would
“irreparably harm[ ]” the State. CP at 30. Mr. Elgiadi, with the benefit of counsel, signed
the agreement. In return, the State paid him $295,000. Because the State’s assent for
paying Mr. Elgiadi $295,000 was dependent on him accepting the no-rehire provision, the
provision is not severable. We conclude, if Mr. Elgiadi succeeds in invalidating the no-
rehire provision, he will be required to return the $295,000 to the State, and the claims in
the initial action will then be reinstated.
D. The no-rehire provision and State policy
We now turn to whether the no-rehire provision violates public policy. Mr. Elgiadi
raises three arguments. However, the first two—the no-rehire provision violates both
WLAD’s public policy and WLAD’s antiretaliation statute—are substantially the same
argument. They both rely upon WLAD’s antiretaliation statute as construed by Zhu v.
North Central Educational Service District-ESD 171, 189 Wn.2d 607, 404 P.3d 504
(2017). We address this argument first.
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
1. Public policy does not require invalidating the no-rehire provision and rescinding the settlement agreement
a. The antiretaliation statute prohibits an employer from refusing to hire an employee because they opposed unlawful discrimination
RCW 49.60.210(1) prohibits an employer from retaliating against any person for
opposing any practice forbidden by the WLAD. In Zhu, our high court was asked to
clarify the scope of this subsection.
Jin Zhu sued the Waterville School District for subjecting him to racially
motivated disparate treatment, a hostile work environment, and retaliation. Zhu, 189
Wn.2d at 610. After the parties settled, Zhu resigned from the Waterville School District
and sought a position with the North Central Educational Service District-ESD 171. Id.
ESD 171 did not hire Zhu. Id. at 611. Zhu filed a claim against ESD 171, asserting the
district refused to hire him in retaliation for his prior lawsuit against Waterville, thereby
violating WLAD’s antiretaliation statute. Id. A jury sided with Zhu, and ESD 171
moved for a new trial on the basis that the antiretaliation statute does not prohibit
retaliatory discrimination against a job applicant by prospective employers. Id.
The federal court certified the question of law to the Washington Supreme Court.
Specifically, the federal court asked:
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
“Does [WLAD’s antiretaliation statute] create a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer?”
Id. Our Supreme Court answered, “yes.” Id. at 613.
In discussing the breadth of the statute, the court noted, “[l]ike all antiretaliation
statutes, RCW 49.60.210(1)’s primary purpose is ‘[m]aintaining unfettered access to
statutory remedial mechanisms.’” Id. at 613 (quoting Robinson v. Shell Oil Co., 519 U.S.
337, 346, 117 S. Ct. 843, 136 L. Ed. 2d 808 (1997)). The court further noted, “[w]hen
interpreting WLAD, we are particularly mindful that ‘a plaintiff bringing a discrimination
case in Washington assumes the role of a private attorney general, vindicating a policy of
the highest priority.’” Id. at 614 (quoting Marquis v. City of Spokane, 130 Wn.2d 97,
109, 922 P.2d 43 (1996)). “To further this important purpose, both the legislature and
Washington courts require that even in a plain language analysis, WLAD’s provisions
must be given ‘liberal construction.’” Id. (citing RCW 49.60.020).
After finding the prima facie elements of unlawful retaliation met, the Zhu court
again emphasized the breadth of RCW 49.60.210(1): “[I]t would make little sense to hold
that the legislature intentionally undercut its own purposes in enacting WLAD by
adopting an antiretaliation provision that allows employers to compile an unofficial ‘do
11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
not hire’ list of individuals who have previously opposed discrimination against
themselves and others.” Id. at 623.
Given Zhu, we readily conclude that the antiretaliation statute prevents a former
employer from refusing to hire a former employee because they opposed unlawful
discrimination. The State does not dispute this. Rather, the State distinguished Zhu,
relying on the fact that Mr. Elgiadi—represented by counsel—had voluntarily waived his
right to be rehired by WSU-Spokane.2 This raises the related question of whether public
policy forbids such a waiver.
b. Public policy does not forbid a plaintiff, who settles a claim of unlawful discrimination, from waiving a contingent right, such as the right to be rehired
In Helgeson v. City of Marysville, 75 Wn. App. 174, 881 P.2d 1042 (1994), the
court addressed whether a former employee could waive a statutory right in resolving a
disputed claim. Construing a prior Supreme Court opinion, the Helgeson court held that
the employee could, provided the statutory right was contingent rather than vested.
2 The State also notes that Mr. Elgiadi’s discrimination claim had been dismissed on summary judgment. The dismissal of this claim is irrelevant. Unlawful retaliation may be proved regardless of the success of the underlying discrimination claim. See Ellis v. City of Seattle, 142 Wn.2d 450, 461, 13 P.3d 1065 (2000) (“[A] reasonable belief by the employee, rather than an actual unlawful employment practice, is all that need be proved to establish a retaliation claim.”) (citing Moyo v. Gomez, 40 F.3d 982, 985 (9th Cir. 1994))).
12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Id. at 182-85. A closer review of Helgeson will elucidate this rule.
Fire Chief Melvin Helgeson worked for the city of Marysville before being
discharged for cause. Id. at 176. Two days later, he applied for Law Enforcement
Officers’ and Fire Fighter’s Retirement System (LEOFF) I duty disability retirement
benefits pursuant to chapter 41.26 RCW. Id. His application was based on injuries he
sustained while working as a firefighter. Id. The county disability board granted
Helgeson a disability retirement allowance and Marysville appealed to the LEOFF board
and then to superior court. Id. The parties entered into a settlement agreement whereby
Marysville dropped its appeal of his disability retirement in exchange for Helgeson
agreeing to waive payment of any medical benefits by Marysville under RCW 41.26.150.
Id. at 177. A few years later, Helgeson’s health deteriorated and he brought suit to have
his waiver of medical benefits declared void in violation of public policy. Id. at 180. His
argument relied on Vallet v. City of Seattle, 77 Wn.2d 12, 459 P.2d 407 (1969).
In Vallet, the city of Seattle required Emile Vallet, a retiring police officer, to
make an election whether to retire under the pension law in effect when he was hired or
the pension law in effect when he retired. Id. at 14-15. The Vallet court rejected Seattle’s
argument that the election was an enforceable waiver. Id. at 15-16. Rather, it held that a
13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
civil servant must be paid the amount prescribed by law and any agreement to accept less
is contrary to public policy and is void. Id. at 15.
In construing Vallet, the Helgeson court distinguished between vested rights and
contingent rights. Helgeson, 75 Wn. App. at 181-82. It reasoned that because Vallet had
a vested right to a statutorily defined retirement amount, he could not waive it. Id. at 182.
Distinguishing Vallet from the case before it, the Helgeson court reasoned that Helgeson
did not have a vested right to payment of medical services when he signed the settlement
agreement. Id. at 183. For this reason, the Helgeson court concluded that enforcement of
Helgeson’s waiver of those rights did not violate public policy. Id. at 183-84.
Here, Mr. Elgiadi did not work for WSU-Spokane when he signed the settlement
agreement. He had no vested right to be rehired. Consistent with Helgeson, we conclude
that Mr. Elgiadi’s waiver of his right to be rehired does not violate public policy.
Zhu does not require a different conclusion. There, the court emphasized that “‘a
plaintiff bringing a discrimination case in Washington assumes the role of a private
attorney general, vindicating a policy of the highest priority.’” Zhu, 189 Wn.2d at 614
(quoting Marquis, 130 Wn.2d at 109). Toward achieving this policy, the court
emphasized that a “reasonable employee” must not be dissuaded from opposing
14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
discriminatory practices by fear of being blacklisted by a prospective employer. Id. at
619.
In Zhu, had the court ruled differently, employees opposing unlawful
discrimination could be blacklisted by any prospective employers. Such a result would
cause employees to be dissuaded from opposing unlawful discrimination, thus frustrating
an important policy behind the WLAD.
The opposite is true here. Mr. Elgiadi is free to work for any employer except one
branch campus of WSU.3 This very narrow prohibition would not cause a reasonable
employee to be dissuaded from opposing unlawful discrimination. This is especially true
here, where Mr. Elgiadi in his initial lawsuit did not seek to be rehired. Because the no-
rehire provision is narrow, Zhu does not require us to invalidate it.
2. The no-rehire provision does not violate RCW 49.62.020
Mr. Elgiadi argues the no-rehire provision violates RCW 49.62.020. We disagree.
RCW 49.62.020 governs to what extent noncompetition covenants are void and
unenforceable. With limited exceptions, a noncompetition covenant includes every
3 The dissent argues that one cannot waive a future claim of discrimination. But this is not what Mr. Elgiadi waived. He waived his right to reapply or be rehired by one branch campus of a public university. This “right” was less important to Mr. Elgiadi than settling his claims for substantial compensation, as evidenced by his knowing, intelligent, and voluntary agreement to that condition in the settlement agreement.
15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 38784-4-111 Elgiadi v. Wash. State Univ.
written agreement "by which an employee or independent contractor is prohibited or
restrained from engaging in a lawful profession, trade, or business of any kind."
RCW 49.62.010(4).
Here, Mr. Elgiadi was not an employee or independent contractor when he agreed
to the no-rehire provision. He was a former employee. Thus, the provision is not a
noncompetition covenant, and RCW 49.62.020 is not implicated.
We affirm the trial court's summary dismissal of Mr. Elgiadi's claims.
I CONCUR:
16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 38784-4-III
FEARING, J. (dissenting) — In settlement of an employment discrimination suit
that Saleh Elgiadi brought against the Spokane branch campus of Washington State
University (WSU), WSU paid Elgiadi the sum of $295,000. In turn, Elgiadi signed a
three-page “Settlement and Release Agreement” (settlement agreement). Paragraph 3 of
the settlement agreement reads:
As a condition of this settlement, State of Washington requires that Plaintiff agree he will neither seek nor accept employment with WASHINGTON STATE UNIVERSITY-SPOKANE, at any time in the future. The parties understand and agree that The State of Washington has required this paragraph as a material provision of this Agreement and that any breach of this paragraph shall be a material breach of this Agreement and that the State would be irreparably harmed by violation of this provision. If for any reason Plaintiff is offered employment with the Washington State University-Spokane, the State of Washington requires that this agreement may be used as the sole basis to rescind any offer of employment or to terminate employment. Because the State of Washington is requiring this paragraph as a condition of Settlement, Plaintiff agrees. The parties agree this required limitation applies only to employment with WSU-Spokane and that it does not prevent Plaintiff for [sic] working for an independent contractor providing services, consulting, acting as a vendor or other contractors providing materials, supplies or services to WSU- Spokane.
Clerk’s Papers (CP) at 30 (emphasis added). I refer to paragraph 3 as the no-reapply
clause. Elgiadi and WSU provide this court no evidence of any communications between
the parties that led to the inclusion of the no-reapply clause in the settlement agreement.
This appeal raises six related questions. First, is the no-reapply clause void as
against public policy? Second, did Saleh Elgiadi waive the right to challenge the no-
reapply clause? Third, is Elgiadi equitably estopped from challenging the no-reapply For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 38784-4-III Elgiadi v. Washington State University
clause? Fourth, is Elgiadi judicially estopped from challenging the no-reapply
clause? Fifth, did the settlement Agreement work an accord and satisfaction? Sixth,
if the clause is void and if Elgiadi neither waived nor is estopped from denying the
validity of the clause, should this court void the entire settlement Agreement or only
strike the clause from the agreement? I answer the questions as follows: (1) yes, based
on RCW 49.60.210(1), (2) no, (3) no, (4) no, (5) no, and (6) remand to the superior court
for further proceedings on whether to strike the clause or void the agreement. Therefore,
I dissent from the majority’s ruling.
RCW 49.60.210(1)
The letter and spirit of RCW 49.60.210 compel the negation of a provision in an
agreement settling an employment discrimination claim, which provision precludes the
employee from seeking further employment with the employer. By insisting on the
employee agreeing to a no-reapply clause, the employer engages in retaliation for
asserting the original discrimination claim. The settling employer treats the employee
differently because of his or her having asserted the discrimination claim against the
employer.
RCW 49.60.210(1) declares:
It is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this
2 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
chapter, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter.
(Emphasis added.) In interpreting statutes, a court seeks to fulfill the legislature’s intent.
State v. Haggard, 195 Wn.2d 544, 547-48, 461 P.3d 1159 (2020). The clearest indication
of the legislature’s intent is the plain meaning of the statutory language. State v.
Conaway, 199 Wn.2d 742, 749, 512 P.3d 526 (2022).
RCW 49.60.210(1) prohibits retaliation against “any person” by “any employer.”
The statute contains no qualifier for former employees. The statute admits no exception
for employers who fired an employee or employers who reached a settlement agreement
with current or former employees. Saleh Elgiadi is “any person” under the statute.
WSU is “any employer” under the statute. I need not engage in any exegesis or review
any case law to conclude that the no-reapply clause in Elgiadi’s settlement agreement
violates RCW 49.60.210(1). I do so anyway.
Like all antiretaliation statutes, RCW 49.60.210(l) primarily seeks to maintain
unfettered access to statutory remedial mechanisms for employment discrimination.
Zhu v. North Central Educational Service District-ESD 171, 189 Wn.2d 607, 614,
404 P.3d 504 (2017). People are less likely to oppose discrimination by bringing claims
or testifying if the law does not extend them protection against retaliation. Allison v.
Housing Authority, 118 Wn.2d 79, 94, 821 P.2d 34 (1991). Thus, in order to encourage
people to oppose discrimination, we afford RCW 49.60.210, the antiretaliation statute,
3 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
liberal construction. RCW 49.60.020; Zhu v. North Central Educational Service District-
ESD 171, 189 Wn.2d 607, 614 (2017). If anything, antiretaliation provisions should be
interpreted more broadly than provisions prohibiting discrimination based on protected
characteristics in order to implement the former’s purpose. Burlington Northern & Santa
Fe Railway v. White, 548 U.S. 53, 61-67, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006).
Zhu v. North Central Educational Service District-ESD 171, 189 Wn.2d 607, 609
(2017) controls. The Supreme Court addressed the question: does RCW 49.60.210(1)
create a cause of action for job applicants who claim a prospective employer refused to
hire him or her in retaliation for earlier opposition to discrimination against a different
employer? The court answered “yes.”
Jin Zhu sued the Waterville School District for a hostile work atmosphere based
on his Chinese background. The school district and Zhu resolved the suit and Zhu
resigned from his employment with the district. Three months later, Zhu applied for
employment with the North Central Educational Service District, which maintained a
relationship with the Waterville School District. Officials of the service district knew of
Zhu’s lawsuit against the school district. The education service district hired someone
else, who Zhu claimed lacked his qualifications for the position. Zhu then sued the
service district. He alleged the district declined his application because of his earlier
claim against the school district.
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The Washington Supreme Court, in Zhu v. North Central Educational Service
District-ESD 171, concluded that the unmistakable language in RCW 49.60.210 extended
to all employers, not just the employee’s former or current employer. The court worried
about an unofficial blacklist if prospective employers declined to hire those who filed
discrimination claims against previous employers. A reasonable employee might be
dissuaded from opposing discriminatory practices for fear of being placed on this
blacklist.
The Washington Supreme Court’s reasoning, in Zhu v. North Central Educational
Service District-ESD 171, extends to the former employer blacklisting the employee.
The antiretaliation policy in Washington State suffers if an employer, through the process
of settling a lawsuit or any claim, may demand that the employee resign from
employment or not to apply for work again. An employee may value employment with
the employer, despite being the subject of or observing discriminatory practices or
treatment. This employee will shun ridding discrimination from the employment setting
in order to retain employment.
An enlightening opinion is Robinson v. Shell Oil Co., 519 U.S. 337, 117 S. Ct.
843, 136 L. Ed. 2d 808 (1997) decided under 42 U.S.C. § 2000e-3(a), the federal analog
to RCW 49.60.210(1). The federal statute bars an employer from “discriminat[ion]
against any of his employees or applicants for employment” who have either availed
themselves of discrimination protections or assisted others in so doing. The case posed
5 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
the question of whether the term “employees,” as used in the statute, includes former
employees, such that Charles Robinson might bring suit against his former employer for
postemployment actions allegedly taken in retaliation for his having filed a charge with
the Equal Employment Opportunity Commission (EEOC). The employer argued that the
statute did not protect former employees. After Robinson filed the charge with the
EEOC, he left employment and applied to another employer. The prospective employer
contacted Shell Oil Company, who supplied a negative reference for Robinson.
Robinson claimed that Shell gave the negative recommendation because of his having
filed the discrimination complaint.
The Supreme Court, in Robinson v. Shell Oil Co., held that the term “employee” in
the federal statute extended to former employees for many reasons. First, the statute
maintained no temporal qualifier. The statute could have expressly excluded the phrase
“former employees” or included the phrase “current employees.” Washington’s statute,
RCW 49.60.210(1), goes further than the federal statute and protects “any person.”
Second, allowing a former employer to discriminate or retaliate against a past employee
would undermine the effectiveness of Title VII by allowing the threat of postemployment
retaliation to deter victims of discrimination from complaining to the EEOC.
Public Policy
Public policy renders a contract term unenforceable when the public policy
outweighs the interest in enforcing the term. LK Operating, LLC v. Collection Group,
6 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
LLC, 181 Wn.2d 48, 85, 331 P.3d 1147 (2014). A contract contrary to the terms of an
express legislative enactment is illegal and unenforceable. Jordan v. Nationstar
Mortgage, LLC, 185 Wn.2d 876, 883, 374 P.3d 1195 (2016); State v. Northwest
Magnesite Co., 28 Wn.2d 1, 26, 182 P.2d 643 (1947). Parties to a contract cannot avoid a
statute through the inclusion of a contrary contractual provision. Failor’s Pharmacy v.
Department of Social & Health Services, 125 Wn.2d 488, 499, 886 P.2d 147 (1994); Nye
v. University of Washington, 163 Wn. App. 875, 886, 260 P.3d 1000 (2011). While
Washington law recognizes an overarching freedom to contract, provisions are
unenforceable where they are prohibited by statute. State Farm General Insurance Co. v.
Emerson, 102 Wn.2d 477, 481, 687 P.2d 1139 (1984).
In Jordan v. Nationstar Mortgage, LLC, 185 Wn.2d 876 (2016), the state high
court declared void a provision in a deed of trust that allowed the lender to change locks
on the residence’s front door if the borrower defaulted. Such a provision violated a
Washington statute.
On appeal, WSU promotes the public policy of enforcing settlement agreements.
When doing so, the university ignores the public policy behind antiretaliation statutes.
Washington maintains a long and proud history of being a pioneer in the protection of
employee rights. Drinkwitz v. Alliant Techsystems, Inc., 140 Wn.2d 291, 300, 996 P.2d
582 (2000); Reeves v. Mason County, 22 Wn. App. 2d 99, 118, 509 P.3d 859 (2022). In
bringing a discrimination case in Washington, the employee assumes the role of a private
7 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
attorney general, vindicating a policy of the “highest priority.” Zhu v. North Central
Educational Service District-ESD 171, 189 Wn.2d 607, 614-15 (2017); Marquis v. City
of Spokane, 130 Wn.2d 97, 109, 922 P.2d 43 (1996). No court has inferred, let alone
ruled, that enforcing a settlement agreement fulfills a policy of a higher, let alone, the
highest priority. The policy against retaliation must prevail over a policy favoring
settlements.
WSU argues that the purposes behind enforcing settlements would be thwarted if
the settling plaintiff could receive a substantial settlement and then sue the defendant
again and cause it to incur further potential liability and attorney fees. Of course, if the
employee received a substantial settlement, the employer likely engaged in
discrimination, if not some form of egregious discrimination. This court should not
shield such an employer from further claims of discrimination.
Although small employers face a dissimilar situation, if WSU disagreed with
Saleh Elgiadi as to his charges of discrimination, WSU had the right to challenge the
allegations in court. The State of Washington maintains a team of assistant attorneys
general for this purpose.
WSU’s contention impliedly labels the employee a troublemaker for having
brought a discrimination claim. WSU impliedly wishes to send its current or former
troublemaker to another employer, who will then face claims of discrimination and
retaliation instead of WSU facing the claims. But I should not assume that the employee
8 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
is a troublemaker, as opposed to a person seeking to rid Washington workplaces of
discriminatory practices and environments. I also question why a new employer should
bear the brunt of the troublemaker when the first employer’s work conditions initially led
to complaints.
WSU argues that the no-reapply clause seeks to protect Saleh Elgiadi from
returning to a conflicted workgroup. The argument implies that WSU paternalistically
seeks to benefit Elgiadi, not itself, from a difficult work environment. WSU should
afford Elgiadi the opportunity to make this choice on his own. I recognize the potential
for a cold, if not hostile, environment resulting from the return to the workplace of an
employee who claimed racial discrimination. Still, this environment arises when the
employee files a claim without having been fired, and the employer possesses no
right to fire the employee for creating a mephitic milieu. Instead, the employer violates
RCW 49.60.210(1) by firing the employee despite the employee purportedly creating a
poisonous atmosphere.
The Washington law against discrimination provides that all remedies authorized
by the United States Civil Rights Act of 1964, 42 U.S.C. § 2000a et seq., are available to
plaintiffs in actions under the law against discrimination. RCW 49.60.030(2). Title VII
provides for the remedy of reinstatement where appropriate. 42 U.S.C. § 2000e-5(g).
We liberally construe the remedial provision of the law against discrimination in order to
encourage private enforcement. Blair v. Washington State University, 108 Wn.2d 558,
9 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
570, 740 P.2d 1379 (1987). The legislature, therefore, does not consider returning the
complainant to his or her workplace a crisis to be avoided.
Of limited application is Golden v. California Emergency Physicians Medical
Group, 782 F.3d 1083 (9th Cir. 2015). The Ninth Circuit answered the question: whether
a provision of a settlement agreement between Donald Golden and his former employer,
the California Emergency Physicians Medical Group (CEP), placed a “restraint of a
substantial character” on Dr. Golden’s medical practice. Golden v. California Emergency
Physicians Medical Group, 782 F.3d at 1091. The court concluded that it did and thus
violated California law. Golden sued CEP, claiming that the employer fired him because
of his race. During a settlement conference, the parties orally agreed to settle the case.
When the settlement agreement was later reduced to writing, however, Golden refused to
sign it. He claimed that one of its provisions breached California’s statutory prohibition
on contracts that restrain one from engaging in a lawful profession, trade, or business.
The paragraph precluded Golden from working at any facility owned by CEP or with
whom CEP contracted. The court discussed extensively whether the contract provision
violated the California statute. More importantly, after concluding that the provision
contravened California law, the court held that the employer could not insert a provision
in the settlement agreement that precluded it from rehiring by the settling employee. The
court did not express concern about Golden working in an environment of hurt feelings
because of his earlier allegations of racial discrimination.
10 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
WSU worries that a ruling favoring Saleh Elgiadi could reduce, if not end, the
settling of employment discrimination claims. I question this assertion. Nevertheless,
this court may not ignore the unmistakable terms of a statute, which holds highest
priority, in order to facilitate settlement of lawsuits.
WSU worries that any ruling favoring Saleh Elgiadi would also outlaw the long-
accepted practice of negotiating for no future employment terms. Of course, my dissent
would only preclude such a clause in the context of discrimination claims. Regardless,
WSU cites no decision that stands for the proposition that long-accepted practices trump
statutes or public policy abhorring racial discrimination and retaliation for filing
discrimination claims. If courts deemed their role limited to preserving long-accepted
practices, we might still live under feudal England rules.
WSU mentions that the no-reapply clause in Saleh Elgiadi’s settlement agreement
only precluded employment from the Spokane campus of Washington State University.
Nevertheless, RCW 49.60.210(1) admits no exception to retaliation for a limited
geographic scope.
WSU relies on Lehrer v. Department of Social & Health Services, 101 Wn. App.
509, 5 P.3d 722, review denied, 142 Wn.2d 1014, 16 P.3d 1263 (2000). In Lehrer, this
court upheld a clause in an employment resignation agreement, under which a
psychiatrist agreed not to apply or work for two state hospitals. The State suggests that
the Lehrer ruling precludes an argument that a no-reapply clause violates the public
11 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
policy against discrimination. But this court limited its ruling to Lehrer’s contention that
the clause worked an unlawful restraint of trade for a physician.
WSU mentions that Saleh Elgiadi has yet to apply for reemployment. This
comment impliedly invokes the ripeness doctrine. Nevertheless, the State does not
expressly ask the court to dismiss the case on ripeness grounds. Anyway, one may bring
a declaratory judgment action to assess the validity of contract terms before any
purported breach. RCW 7.24.020.
Saleh Elgiadi also seeks to strike the renewed employment provision under
RCW 49.62.020, which bans unlawful restraints of trade. I decline to address this
alternative argument, since my dissent rests on the pillar of retaliation.
Waiver
I emphasize that an employee may, for consideration, waive claims for
employment discrimination based on past conduct of the employer. Thus, contrary to the
suggestion of WSU, settlement agreements of employment discrimination claims will
retain their validity with regard to claims already pending. The question posed by this
suit is whether an employee may waive in advance future claims for failure to rehire the
employee.
I disagree with the majority that the no-reapply clause applies only to present
rights, and not future claims. Instead the clause operates only in the opposite direction.
The clause applies only to future rights, and not present rights. One might have expected
12 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
the provision to preclude Elgiadi from merely “seeking reemployment” without any
temporal description or “seeking reemployment at this time or in the future.” (Emphasis
added.) But WSU inserted the language: “at any time in the future.” Even if the
agreement read “at this time or in the future,” the no-reapply clause still flouted Elgiadi’s
prerogative to apply for employment in the future. In its appellate argument, WSU
emphasizes that Elgiadi has yet to reapply for employment, thus confirming that the no-
reapply clause impacts the future, not the present. The clause bars Saleh Elgiadi from
employment or seeking employment after the passage of one month, one year, or one
decade.
When arguing waiver, WSU does not independently analyze the elements of
waiver. The State also does not enlighten the court on how waiver trumps the highest of
priorities in preventing discrimination and retaliation. Finally, WSU cites no case law
allowing an employer to absolve itself from liability for future conduct, such as denying
reemployment.
Subject to certain exceptions, parties may contract and agree in advance that one
shall not be liable for his or her own conduct to another. Wagenblast v. Odessa School
District No. 105-157-166J, 110 Wn.2d 845, 848, 758 P.2d 968 (1988). Nevertheless, in
some circumstances, public policy requires the preservation of an obligation of care owed
by one person to another and outweighs our traditional regard for the freedom to contract.
Wagenblast v. Odessa School District, 110 Wn.2d 845, 849 (1988). For example, an
13 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
employer cannot require an employee to sign a contract releasing the employer from
liability for job-related injuries caused by the employer’s negligence. RESTATEMENT
(SECOND) OF TORTS § 496B, cmt. f (AM. L. INST. 1965). Freedom from retaliation for
filing a discrimination claim holds the highest of priorities and any release in advance of
such a claim must be struck rather than function as a waiver to protections.
Imagine an employment agreement that read that the employee waived, released,
and discharged from any liability the employer if the employer pays the employee a
lower wage because of his or her race or if the employer routinely hurled racial invectives
at the employee. The law would not permit an employee to release in advance an
employer from a hostile work environment or from discriminatory treatment based on the
employee’s race, age, gender, sexual orientation, or religion. Since ridding the workplace
from retaliatory treatment deserves an even higher priority, the law must also preclude
advance waivers of retaliation claims.
In Bernhardt v. Los Angeles County, 339 F.3d 920 (9th Cir. 2003), the court
entered a preliminary injunction against the application of the county’s alleged policy of
settling civil rights suits only on a signed waiver by the plaintiff to forgo recovery of
attorney fees. The policy would likely violate the purposes underlying 42 U.S.C. § 1988,
which affords successful civil rights plaintiffs recovery of fees. Similarly, the State’s
demand that any employee sign a waiver of the right to forgo rehiring interferes with the
14 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
policy behind rectifying employment discrimination and behind precluding retaliation for
opposing discrimination.
Equitable Estoppel
Next in its long list of defenses, WSU asserts equitable estoppel. When arguing
equitable estoppel, WSU fails to independently analyze the elements of estoppel. WSU
does not enlighten this court on how equitable estoppel trumps the highest of priority in
preventing discrimination and retaliation. WSU does not forward any case that upholds,
on the basis of estoppel, an agreement to forgo claims for retaliation.
The elements of equitable estoppel include: (1) an admission, statement, or act
inconsistent with the claim afterward asserted, (2) justifiable reliance by the other party
on the faith of such admission, statement, or act, and (3) injury to such other party.
Saunders v. Lloyd’s of London, 113 Wn.2d 330, 340, 779 P.2d 249 (1989).
Equitable estoppel focuses on justifiable reliance. Buchanan v. Switzerland Gen. Ins.
Co., 76 Wn.2d 100, 108, 455 P.2d 344 (1969). Also, a court will apply equitable estoppel
only to prevent a manifest injustice. Kramarevcky v. Department of Social & Health
Services, 122 Wn.2d 738, 743-44, 863 P.2d 535 (1993). Injustice results from an
employer relying on terms of an agreement that retaliates against an employee for
bringing a racial discrimination claim. WSU cannot and does not argue it justifiably
relied on the promise contained in paragraph 3 of the settlement agreement with Saleh
Elgiadi.
15 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Judicial Estoppel
When arguing judicial estoppel, WSU does not independently analyze the
elements of the doctrine. WSU does not enlighten the court on how judicial estoppel
trumps the highest of priority in preventing discrimination and retaliation.
Judicial estoppel prevents a party from asserting one position in a judicial
proceeding and later taking an inconsistent position to gain an advantage. Ashmore v.
Estate of Duff, 165 Wn.2d 948, 951, 205 P.3d 111 (2009); Arkison v. Ethan Allen,
Inc., 160 Wn.2d 535, 538, 160 P.3d 13 (2007). The doctrine seeks to preserve respect
for judicial proceedings and to avoid inconsistency, duplicity, and waste of time.
Cunningham v. Reliable Concrete Pumping, Inc., 126 Wn. App. 222, 225, 108 P.3d 147
(2005); Johnson v. Si-Cor, Inc., 107 Wn. App. 902, 906, 28 P.3d 832 (2001). Three
factors inform whether judicial estoppel should apply:
(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.
Arkison v. Ethan Allen, Inc., 160 Wn.2d 535, 538-39 (2007) (internal quotation marks
omitted) (quoting New Hampshire v. Maine, 532 U.S. 742, 750-51, 121 S. Ct. 1808,
149 L. Ed. 2d 968 (2001)). The doctrine of judicial estoppel protects the integrity of
the judicial process, not the interest of a defendant attempting to avoid liability. Miller v.
16 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
Campbell, 164 Wn.2d 529, 544, 192 P.3d 352 (2008); Lee v. Jasman, 183 Wn. App. 27,
68-69, 332 P.3d 1106 (2014), aff’d, 183 Wn.2d 633, 354 P.3d 846 (2015).
Saleh Elgiadi never argued to the superior court, during his lawsuit for
employment discrimination, that any waiver of the opportunity to reapply for
employment survived public policy attack. Elgiadi does not now take any inconsistent
position offensive to the judicial system.
When arguing judicial estoppel, WSU asserts that the superior court approved the
settlement agreement reached between Saleh Elgiadi and WSU. It cites CP 137-40 as
constituting that approval. The document found on those pages in the clerk’s papers is a
stipulated judgment. The judgment reads that the sum of $295,000 is a just settlement.
The judgment does not reference the settlement agreement or approve of any terms in the
agreement.
Accord and Satisfaction
When arguing accord and satisfaction, WSU relies on Lehrer v. Department of
Social & Health Services, 101 Wn. App. 509 (2000), already discussed. WSU does not
separately analyze the elements of accord and satisfaction. WSU does not educate this
court on how accord and satisfaction outflanks the highest of priorities in preventing
discrimination and retaliation.
The principle of accord and satisfaction recognizes a debtor’s and creditor’s
agreement to settle a claim by some performance different from that which is claimed
17 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
due. Pugh v. Evergreen Hospital Medical Center, 177 Wn. App. 348, 358, 311 P.3d
1253 (2013). Once the creditor accepts the substituted performance, it amounts to full
satisfaction of the claim. Pugh v. Evergreen Hospital Medical Center, 177 Wn. App.
348, 358 (2013). An accord and satisfaction, like any contract, can be set aside, in whole
or in part, for such reasons as mutual mistake, illegality, or frustration of purpose. Teel v.
Cascade-Olympic Construction Co., 68 Wn.2d 718, 720, 415 P.2d 73 (1966); Paopao v.
Department of Social & Health Services, 145 Wn. App. 40, 46, 185 P.3d 640 (2008).
Thus, accord and satisfaction does not preclude Saleh Elgiadi from contending a portion
of the settlement agreement to be void because it breaches public policy.
Severance
I now face the most difficult of the questions posed: what remedy should be
granted Saleh Elgiadi. When a court finds one or more provisions in a contract
unenforceable, the court must decide whether to remove the unenforceable provisions
from the agreement and uphold the remaining terms or invalidate the entire contract.
Gandee v. LDL Freedom Enterprises, Inc., 176 Wn.2d 598, 607, 293 P.3d 1197 (2013).
Severance is the usual remedy for invalid terms rather than invalidation of the entire
agreement. Woodward v. Emeritus Corp., 192 Wn. App. 584, 602, 368 P.3d 487 (2016).
Courts are reticent to void the entire agreement especially when the agreement contains a
severance clause. Gandee v. LDL Freedom Enterprises, Inc., 176 Wn.2d 598, 607
(2013). Nevertheless, when unconscionable terms pervade an agreement, courts refuse to
18 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
rewrite the agreement and instead invalidate the contract. Gandee v. LDL Freedom
Enterprises, Inc., 176 Wn.2d 598, 607 (2013). In discerning whether to invalidate an
entire arbitration agreement, the Supreme Court compared the number of clauses invalid
with the number of remaining clauses and held the entire agreement void because of three
unconscionable provisions in a contract containing four provisions. Gandee v. LDL
Freedom Enterprises, Inc., 176 Wn.2d 598 (2013).
Paragraph 3 contains strong language to the end that WSU would not have settled
the earlier lawsuit without the no-reapply clause. Saleh Elgiadi does little to defeat the
strong language. Elgiadi also ignores the absence of a severance clause in the agreement.
Still, paragraph 3 only addresses what occurs if Elgiadi applies for reemployment. The
paragraph indicates that Elgiadi’s reapplication for employment breaches the agreement.
The paragraph expresses no intent that the entire agreement becomes void if the court
annuls the no-reapply clause.
I note that paragraph 3 is only one of fourteen paragraphs in a three-page
agreement. Courts are less apt to strike the entire agreement when only one paragraph is
void.
This court lacks any evidence of the discussions leading to the settlement
agreement. WSU may have inserted the paragraph in the agreement at the last minute
without having earlier demanded the clause. A defending party may not later add terms
19 For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
to the settlement agreement not negotiated by the time the parties reached an agreement
for a sum to dismiss the suit. Condon v. Condon, 177 Wn.2d 150, 298 P.3d 86 (2013).
Because the court lacks testimony about any discussions leading to paragraph 3
and because the parties did not litigate below the question of severability, I would remand
to the superior court for further proceedings to determine whether to invalidate the entire
agreement or strike only paragraph 3. On remand, I would permit Saleh Elgiadi to
contend, among other arguments, that the superior court should not invalidate the entire
agreement because WSU seeks to benefit from retaliatory action and because WSU
should have known not to insert the provision in the settlement agreement. I would also
allow Elgiadi to argue that WSU’s seeking to void the entire agreement on the basis of
the unlawful no-reapply clause constitutes another form of retaliation in violation of
RCW 49.60.210(1).
_________________________________ Fearing, J.