1 2 FILED IN THE U.S. DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 3 Feb 27, 2025 4 SEAN F. MCAVOY, CLERK 5 UNITED STATES DISTRICT COURT 6 EASTERN DISTRICT OF WASHINGTON 7 WENDY SCHULLER, an No. 2:23-cv-00059-RLP individual, 8 ORDER ON DEFENDANTS’ Plaintiff, MOTION FOR SUMMARY 9 JUDGMENT v. 10 EASTERN WASHINGTON 11 UNIVERSITY, a regional university; and LYNN HICKEY, 12 an individual, Defendants. 13 BEFORE THE COURT is Defendants’ Motion for Summary Judgment 14 (ECF No. 46). Oral argument was held on this matter on February 25, 2025. 15 Plaintiff Wendy Schuller was represented by attorney Alexandria Drake. 16 Defendants Eastern Washington University (EWU) and Lynn Hickey were 17 represented by attorney Elizabeth Olsen. 18 In her Complaint, Ms. Schuller alleges Defendants terminated her as Head 19 Coach of the EWU Women’s Basketball team in retaliation for her Title IX 20 reporting, and on the basis of her gender and age. She also claims Defendants 1 unlawfully paid her less than the men’s basketball Head Coach, and breached her 2 employment contract by terminating her without cause. She asserts related state
3 law and § 1983 and 1985(3) claims in addition to her discrimination and breach of 4 contract claims. 5 For the reasons discussed below, Defendants’ Motion for Summary
6 Judgment is granted in part and denied in part. 7 BACKGROUND 8 EWU hired Ms. Schuller to be the Head Coach of the EWU Women’s 9 Basketball team in June 2001. ECF No. 58, ¶5. Ms. Schuller was 51 years old in
10 2021. ECF No. 58, ¶11. EWU appointed Lynn Hickey as its Athletic Director on 11 April 25, 2018. ECF No. 48, ¶10. 12 Ms. Schuller signed a five-year contract extension with EWU on April 19,
13 2017. ECF No. 48, ¶36. Under the contract, EWU paid Ms. Schuller $110,000 14 annually, with $2,500 yearly raises. ECF No. 48-1 at 3. In addition, the contract 15 provided Ms. Schuller various performance-based bonuses, including a $1,000 16 bonus if the team’s cumulative GPA was above 3.4. Id. Ms. Schuller’s 2017
17 contract permitted EWU to terminate her for convenience without cause if EWU 18 chose to buy-out her contract with six months’ pay. ECF No. 48-1 at 6. 19 EWU also hired Shantay Legans as the Coach of the EWU Men’s Basketball
20 team in April 2017. ECF No. 58, ¶¶194-96. EWU paid Mr. Legans $130,000 1 annually with $5,000 yearly raises, and a bonus of $5,000 for a cumulative team 2 GPA of 3.0 or better. ECF No. 63-1 at 3.
3 In 2019, pursuant to Title IX requirements, Ms. Schuller reported domestic 4 violence allegations made to Ms. Hickey by an EWU Women’s Basketball player 5 against an EWU football player. ECF No. 58, ¶¶107-111. According to Ms.
6 Schuller, when she followed up on the report Ms. Hickey behaved dismissively, 7 then angrily, and accused her of engaging in “gossip.” ECF No. 58, ¶¶113-16. 8 In September 2020, Ms. Schuller and the Head Coach of the EWU Women’s 9 Golf team, Brenda Howe, spoke with an auditor as part of a Title IX audit of the
10 EWU Athletic Department. ECF No. 58, ¶120. After Ms. Hickey became aware of 11 Ms. Howe’s interview with the auditor, Ms. Hickey confronted Ms. Howe and 12 charged her not to engage in “gossip.” ECF No. 60-1 at 37:12-38:19. Ms. Schuller
13 spoke with EWU’s Title IX office again concerning alleged misconduct by EWU 14 football team players in December 2020. ECF No. 58, ¶129. 15 Over the last three seasons of Ms. Schuller’s tenure (2018-19, 2019-20, 16 2020-21), the EWU Women’s Basketball team posted losing records of 13-20, 4-
17 26, and 6-17. ECF No. 48, ¶17. The team finished 6th, 10th, and 9th in the Big Sky 18 Conference in each of these seasons. ECF No. 48, ¶17. 19 On March 16, 2021, Ms. Hickey circulated a draft performance evaluation of
20 Ms. Schuller to Athletic Department staff and the Interim University President. 1 ECF No. 63-10 at 2. The draft evaluation included a section concerning Ms. 2 Schuller’s public outreach efforts. ECF No. 63-11 at 11. In this section, Ms.
3 Hickey commented “[w]e have had conversations about her level of negativity 4 within the department and the gossiping that occurs. I must assume that if we have 5 seen that internally that the same attitude is projected outside our department.”
6 ECF No. 63-11 at 11 (emphasis added). 7 The draft evaluation concluded with a lengthy performance summary 8 wherein Ms. Hickey recommended Ms. Schuller’s termination. ECF No. 63-11 at 9 20-21. The reasons provided were the Women’s Basketball team’s failure to meet
10 competitive standards, failure to draw in enough spectators, and loss of student 11 athletes. Id. Ms. Hickey made a point of the team’s low morale, specifically noting 12 Ms. Schuller “projects a high level of frustration and exhaustion.” Id.
13 On March 31, 2021, Defendants terminated Ms. Schuller pursuant to the 14 termination for-convenience clause in her contract. ECF No. 48-2. Defendants 15 offered Ms. Schuller a severance check containing six months salary, which Ms. 16 Schuller refused. ECF No. 48, ¶41.
17 Contemporaneous with Ms. Schuller’s termination, the coach of the EWU 18 Women’s Volleyball team resigned after players accused her of misconduct. ECF 19 No. 60-1 at 60:22-61:5. This coach was in her 30s at the time of her resignation.
20 ECF No. 60-1 at 62:7-8. 1 After Ms. Schuller’s termination, Defendants began searching for a 2 replacement Head Coach for the Women’s Basketball team. ECF No. 64 at 2. One
3 candidate Defendants considered was Deb Patterson. ECF No. 60-1 at 6:11-14. Ms. 4 Hickey believed Ms. Patterson to be in her 50s. ECF No. 60-1 at 11:5-17. When a 5 staff member told Ms. Hickey that Ms. Patterson was “just incredibly unselfish” in
6 reference to Ms. Patterson’s relationship with her family, Ms. Hickey replied 7 “[s]he also needs to get a little selfish or her age will soon stop her having another 8 opportunity.” ECF No. 64 at 2. 9 Defendants initially offered the head coaching job to Heather Ezell, a coach
10 in her 30s. ECF No. 60-1 at 63:13-19. Ms. Hickey wanted to offer Ms. Ezell a 11 $130,000 annual salary, citing a desire to be “more equitable with our men’s head 12 coach salary.” ECF No. 58 at 2. In an email to the Interim University President
13 concerning the offer, Ms. Hickey stated “[i]f we can pull this off . . . we will have a 14 great young coach to re-build our women’s basketball program.” ECF No. 64-1 at 15 3. Ms. Ezell declined Defendants’ offer. ECF No. 60-1 at 64:12-15. Defendants 16 ultimately hired a coach over the age of 40 to replace Ms. Schuller. ECF Nos. 57,
17 ¶254; 60-1 at 70:14-15. 18 After Ms. Schuller’s termination, a gender discrimination complaint filed 19 against Ms. Hickey led to a Title IX investigation by the EWU Director of Equal
20 Opportunity. ECF No. 61-9. One female former employee alleged to the 1 investigator (1) Ms. Hickey required her to decorate for parties and events because 2 they “needed a woman’s touch”; and (2) Ms. Hickey stated in a meeting that a
3 “woman” could not do a particular job and cover football at the same time. ECF 4 No. 65-2 at 9. The investigator concluded there was insufficient evidence to 5 substantiate the allegations due to a failure of other employees to corroborate the
6 allegations. ECF No. 65-2 at 27-28. 7 Another investigation against Ms. Hickey stemming from a complaint made 8 by a former volleyball coach concluded in 2022. ECF No. 65-4 at 2. In one 9 instance, the complainant stated Ms. Hickey told her she “hates girls and girl
10 things-drama.” ECF No. 65-4 at 4. Ms. Hickey sent a similar email to an 11 unidentified recipient in November 2020, stating “[s]omeday let’s have a talk 12 about how I hate ‘girl’ stuff - - as far as gossip and finger pointing.” ECF No. 61-3
13 at 2. 14 Ms. Schuller initiated this lawsuit on February 7, 2023. ECF No. 1-2. Ms. 15 Hickey was deposed on October 10, 2024. ECF No. 60-1. At her deposition, with 16 regards to her conversation with Ms. Howe, Ms. Hickey testified “gossip” meant
17 Ms. Howe’s failure to approach her with the concerns Ms. Howe expressed to the 18 Title IX auditor. ECF No. 60-1 at 45:4-17. 19 With regards to Ms. Schuller and Mr. Legans’ duties as heads of the
20 Women’s and Men’s Basketball teams, Ms. Hickey testified: 1 [T]hey basically have the same duties, except the men’s coach he had a lot of media opportunities and responsibilities, so that’s probably the 2 biggest difference on that. But no, they’re doing the same job and it’s not fair. 3 ECF No. 60-1 at 69:16-24. 4 ANALYSIS 5 Summary judgment will be granted if the moving party “shows that there is 6 no genuine dispute as to any material fact and the movant is entitled to judgment as 7 a matter of law.” FRCP 56(a). In ruling on a motion for summary judgment, the 8 Court views the evidence and inferences therefrom “in the light most favorable to 9 the adverse party”. James River Ins. Co. v. Hebert Schenk, P.C., 523 F.3d 915, 920 10 (9th Cir. 2008) (quoting Jones v. Halekulani Hotel, Inc., 557 F.2d 1308, 1310 (9th 11 Cir. 1977)). A moving party who does not bear the burden of persuasion at trial can 12 succeed on summary judgment either by producing evidence that negates an 13 essential element of the non-moving party’s claim or defense, or by showing that 14 the non-moving party does not have enough evidence to prove an essential 15 element. Nissan Fire & Marine Ins. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 16 2000). Once the moving party has satisfied its burden, to survive summary 17 judgment, the non-moving party must demonstrate by affidavits, depositions, 18 answers to interrogatories, or admission on file, “specific facts” showing a genuine 19 dispute of material fact for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 20 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). 1 “Credibility determinations, the weighing of the evidence, and the drawing 2 of legitimate inferences from the facts are jury functions, not those of a judge.”
3 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 91 L. Ed. 2d 4 202 (1986). “Summary judgment is improper where divergent ultimate inferences 5 may reasonably be drawn from the undisputed facts.” Fresno Motors, LLC v.
6 Mercedes Benz USA, LLC, 771 F.3d 1119, 1125 (9th Cir. 2014) (internal quotation 7 omitted). A motion for summary judgment on claims of employment 8 discrimination must be carefully reviewed to protect an employee’s right to a full 9 trial, “since discrimination claims are frequently difficult to prove without a full
10 airing of the evidence and an opportunity to evaluate the credibility of the 11 witnesses.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1112 (9th Cir. 2004). 12 Ms. Schuller alleges several causes of action based on the foregoing events:
13 (1) retaliation in violation of Title VII, Title IX, and Washington’s Law Against 14 Discrimination (WLAD); (2) gender discrimination in violation of Title VII, Title 15 IX, and WLAD; (3) age discrimination in violation of WLAD; (4) wrongful 16 termination in violation of public policy; (5) violation of the Washington Equal
17 Pay Act (WEPA); (6) breach of contract; (7) wrongful withholding of wages; (8) 18 violation of her constitutional rights under the due process and equal protection 19 clauses of the Fourteenth Amendment; (9) conspiracy to deprive her of her civil
20 1 rights; and (10) intentional infliction of emotional distress. Defendants assert they 2 are entitled to summary judgment all claims. Each is addressed in turn.
3 1. Retaliation and Gender Discrimination 4 Ms. Schuller contends Defendants fired her in retaliation for her Title IX 5 reporting. She also contends her gender was a motivating factor in her termination.
6 Defendants contend that they terminated Ms. Schuller for her poor job 7 performance, and she cannot demonstrate specific and substantial evidence of 8 pretext. The Court finds sufficient evidence of Ms. Hickey’s discriminatory animus 9 and retaliatory motivation to create a question of fact as to Ms. Schuller’s
10 retaliation and gender discrimination claims. 11 Title VII of the Civil Rights Act of 1964 prohibits consideration of “race, 12 color, religion, sex, or national origin in employment practices.” 42 U.S.C. §
13 2000e-2(m). Title VII further makes it “an unlawful employment practice for an 14 employer to discriminate against any of his employees or applicants for 15 employment . . . because he has made a charge, testified, assisted, or participated in 16 any manner in an investigation, proceeding, or hearing under this title[.]” 42
17 U.S.C. § 2000e-3(a). 18 Title IX of the Education Amendments of 1972 provides “[n]o person in the 19 United States shall, on the basis of sex, be excluded from participation in, be
20 denied the benefits of, or be subjected to discrimination under any education 1 program or activity receiving Federal financial assistance....” 20 U.S.C. § 1681(a). 2 “Retaliation against a person because that person has complained of sex
3 discrimination is another form of intentional sex discrimination encompassed by 4 Title IX’s private cause of action.” Jackson v. Birmingham Bd. of Educ., 544 U.S. 5 167, 173, 125 S. Ct. 1497, 1504, 161 L. Ed. 2d 361 (2005).
6 WLAD prohibits termination or other discrimination on the basis of age or 7 sex, among other statuses. RCW 49.60.180. Nor may an employer retaliate against 8 an employee “because he or she has opposed any practices forbidden by this 9 chapter, or because he or she has filed a charge, testified, or assisted in any
10 proceeding under this chapter.” RCW 46.60.210(1). 11 Usually, Title VII, Title IX, and WLAD gender discrimination and 12 retaliation claims are analyzed using the burden-shifting analysis of McDonnell
13 Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); 14 Emeldi v. Univ. of Oregon, 698 F.3d 715, 724 (9th Cir. 2012); Davis v. Team Elec. 15 Co., 520 F.3d 1080, 1089-90 (9th Cir. 2008); Cornwell v. Microsoft Corp., 192 16 Wn.2d 403, 411, 430 P.3d 229 (2018).
17 The analysis has three steps. The employee must first establish a prima facie case of discrimination. If he does, the employer must articulate a 18 legitimate, nondiscriminatory reason for the challenged action. Finally, if the employer satisfies this burden, the employee must show that the 19 reason is pretextual either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly 20 by showing that the employer’s proffered explanation is unworthy of credence. 1 Davis, 520 F.3d at 1090 (internal quotations omitted). 2 However, the McDonnell Douglas burden-shifting analysis is inapplicable 3 where a plaintiff presents direct evidence of discriminatory intent or retaliatory 4 motive. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S. Ct. 613, 5 83 L. Ed. 2d 523 (1985) (gender discrimination); Fabela v. Socorro Indep. Sch. 6 Dist., 329 F.3d 409, 415 (5th Cir. 2003), overruled on other grounds by Smith v. 7 Xerox Corp., 602 F.3d 320, 330 (5th Cir. 2010) (retaliation); Bittner v. Symetra 8 Nat’l Life Ins. Co., 32 Wn. App. 2d 647, 659, 558 P.3d 177 (2024) (WLAD). Such 9 direct evidence can alone preclude summary judgment. France v. Johnson, 795 10 F.3d 1170, 1173 (9th Cir. 2015); Bittner, 32 Wn. App. 2d at 668. Clearly sexist 11 statements or actions by an employer, even where not directed towards the 12 plaintiff, suffice to demonstrate direct evidence of a discriminatory intent behind 13 an employee’s termination. Coghlan v. Am. Seafoods Co. LLC., 413 F.3d 1090, 14 1095 n.6 (9th Cir. 2005). 15 Construing the record in a light most favorable to her as the non-moving 16 party, Ms. Schuller has presented sufficient direct evidence of Defendants’ 17 discriminatory intent or retaliatory motive for her termination to preclude summary 18 judgment on her retaliation and gender discrimination claims. The record contains 19 evidence of Ms. Hickey expressing animus towards women and employing gender 20 stereotypes in the workplace. Ms. Hickey’s reference to Title IX reporting as 1 “gossip” and her invocation of “gossiping” in the draft performance evaluation she 2 created to justify Ms. Schuller’s termination is also direct evidence of a retaliatory
3 motive. 4 Because the record contains direct evidence of discriminatory intent or a 5 retaliatory motive for her termination, Ms. Schuller does not need to show
6 Defendants’ legitimate, non-retaliatory reasons for its actions are pretextual to 7 survive summary judgment. It is a question for the jury to decide Defendants’ true 8 motivation. 9 Even if the McDonnell Douglas framework applied, the evidence of
10 discriminatory intent and retaliatory motive creates a question of fact as to Ms. 11 Schuller’s retaliation and gender discrimination claims. 12 Under Title VII, Title IX, and WLAD, a prima facie retaliation claim
13 requires a showing that (1) the employee engaged in a protected activity; (2) she 14 suffered an adverse employment action; and (3) there was a causal link between 15 the protected activity and the adverse employment action. Davis, 520 F.3d at 1093- 16 94 (Title VII); Cornwell, 192 Wn.2d at 411 (WLAD). It is undisputed Ms. Schuller
17 engaged in protected activity and suffered an adverse employment action. The 18 above evidence of discriminatory intent and retaliatory motive demonstrates a 19 causal link between the protected activity and the adverse employment action.
20 1 A prima facie Title VII and IX employment gender discrimination claim 2 requires a showing that (1) the employee belongs to a statutorily protected class;
3 (2) the employee performed her job satisfactorily; (3) the employee suffered an 4 adverse employment action; and (4) similarly situated individuals outside the 5 employee’s protected class were treated more favorably, or other circumstances
6 surrounding the adverse employment action that give rise to an inference of 7 discrimination. Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603 (9th Cir. 8 2004). Under the WLAD, a prima facie gender discrimination case only requires a 9 showing of the first three of the above elements. Crabtree v. Jefferson County Pub.
10 Hosp. Dist. No. 2, 20 Wn. App. 2d 493, 508, 500 P.3d 203 (2021). 11 It is undisputed Ms. Schuller belongs to a protected class and suffered an 12 adverse employment action. While the parties dispute whether Ms. Schuller
13 performed satisfactory work, Ms. Schuller has made a sufficient showing 14 concerning Defendants’ expectations of her so as to create a question of fact. See 15 Calloway v. Univ. of S.C., 2022 WL 2230084, at *6 (D. S.C. June 1, 2022) 16 (university’s failure to express dissatisfaction with coach’s losing record prior to
17 termination gave rise to question of fact as to satisfactory job performance); see 18 also Kenny v. Univ. of Delaware, 2019 WL 5865595, at *4 (D. Del. Nov. 8, 2019) 19 (Subjective factors, such as the athletic director’s expectations for team
20 performance and coach behavior, better left to the later stage of the McDonnell 1 Douglas analysis because they are more susceptible of abuse and more likely to 2 mask pretext.). The aforementioned evidence of discriminatory intent and
3 retaliatory motive demonstrates circumstances giving rise to an inference of 4 discrimination. 5 Defendants proffer a legitimate, non-discriminatory reason for Ms.
6 Schuller’s termination (the poor performance of her team and dissatisfaction of 7 athletes), shifting the burden to Ms. Schuller to demonstrate pretext. Direct 8 evidence of discriminatory animus is sufficient to create a question of fact as to 9 pretext. Lindahl v. Air France, 930 F.2d 1434, 1438 (9th Cir. 1991). Again, the
10 evidence of discriminatory intent and retaliatory motive creates a question of fact 11 as to pretext. 12 Summary judgment is not appropriate on Ms. Schuller’s retaliation and
13 gender discrimination claims under Title VII, IX, and WLAD as there are genuine 14 issues of material fact concerning Defendants motivations behind Ms. Schuller’s 15 termination. 16 2. Age Discrimination
17 In addition to her WLAD gender discrimination claim, Ms. Schuller asserts 18 an age discrimination claim under WLAD. Unlike her gender discrimination claim, 19 the Court finds insufficient evidence of age discrimination to create a genuine issue
20 of fact. 1 The McDonnell Douglas burden-shifting framework again applies to WLAD 2 age discrimination claims. Scrivener v. Clark Coll., 181 Wn.2d 439, 446, 334 P.3d
3 541 (2014). 4 “To establish a prima facie case of age discrimination in employment, the 5 employee must show: (1) she was within the statutorily protected age group of
6 employees 40 years of age or older, (2) she was discharged, (3) she was doing 7 satisfactory work, and (4) she was replaced by a significantly younger person.” 8 Becker v. Washington State Univ., 165 Wn. App. 235, 252, 266 P.3d 893 (2011). If 9 the employee is successful in carrying her burden, the employer must show a
10 legitimate, non-discriminatory reason for its conduct. Id. “If the employer meets its 11 burden of production, the employee must then show the employer’s proffered 12 reason was mere pretext for discrimination.” Id.
13 Ms. Schuller has not demonstrated a prima facie age discrimination case. It 14 is undisputed Ms. Schuller was replaced by a coach who was also over the age of 15 40. Nor has Ms. Schuller produced evidence of age discrimination sufficient to 16 avoid the application of the McDonnell Douglas analysis or demonstrate pretext.
17 Ms. Schuller offers the following evidence of age discrimination. When 18 discussing the two candidates to replace Ms. Schuller, Ms. Hickey remarked that 19 Ms. Patterson needed “to get a little selfish or her age will soon stop her having
20 another opportunity,” and Ms. Ezell was a “great young coach.” Ms. Hickey then 1 wanted to offer Ms. Ezell a higher salary than EWU paid Ms. Schuller. Ms. Hickey 2 also referred to Ms. Schuller’s “frustration and exhaustion” in the draft
3 performance evaluation. Finally, Ms. Schuller argues Defendants failure to 4 terminate the younger Women’s Volleyball Coach despite the allegations of 5 misconduct against her constitutes disparate treatment.
6 This evidence, read alone or together, is insufficient to create a question of 7 fact as to age discrimination. Ms. Hickey’s comments referencing the age of Ms. 8 Patterson and Ms. Ezell are benign and do not indicate discriminatory animus. The 9 higher salary offered to Ms. Ezell only creates a very weak and insubstantial
10 inference of age discrimination at best. Likewise, Ms. Schuller’s claim that the 11 reference to her “frustration and exhaustion” refers to her age is strongly 12 inferential. Finally, the EWU Women’s Volleyball coach’s situation does not
13 support Ms. Schuller’s age discrimination claims, as even from the limited record 14 presented the circumstances of her resignation are too different from Ms. 15 Schuller’s termination to provide anything but the weakest inference of age 16 discrimination.
17 Even viewing the evidence in a light most favorable to Ms. Schuller, no 18 reasonable jury could find she was discriminated against based on her age. 19 Defendants are entitled to summary judgment on her WLAD age discrimination
20 claim. 1 3. Wrongful Termination in Violation of Public Policy 2 In addition to her Title VII, Title XI, and WLAD claims for retaliation,
3 gender discrimination, and age discrimination, Ms. Schuller advances a state law 4 claim for wrongful termination in violation of public policy based on the same 5 underlying facts.
6 The Washington tort of wrongful termination in violation of public policy is 7 an exception to the general rule that an at-will employee can be terminated for any 8 reason. Hollenback v. Shriners Hosps. for Child., 149 Wn. App. 810, 825, 206 P.3d 9 337 (2009). “This tort applies when an employer discharges an employee for
10 reasons contrary to public policy.” Id. The WLAD articulates strong public policy 11 against gender discrimination, which may be the basis for a wrongful termination 12 in violation of public policy claim. Roberts v. Dudley, 140 Wn.2d 58, 72, 993 P.2d
13 901 (2000). 14 To survive summary judgment by an employer, an employee must make two 15 showings. Martin v. Gonzaga Univ., 191 Wn.2d 712, 725, 425 P.3d 837 (2018). 16 First, that the termination may have been motivated by reasons that contravene a
17 clear mandate of public policy. Id. Second, that the public policy linked conduct 18 was a significant factor in the decision to terminate. Id. 19 Gender discrimination, age discrimination, and retaliation all contravene a
20 clear mandate of public policy as expressed by WLAD, satisfying the first element 1 of Ms. Schuller’s wrongful termination in violation of public policy claim. As 2 discussed above, Ms. Schuller produced sufficient evidence of discriminatory
3 animus and retaliatory motive to create a question of fact as to gender 4 discrimination and retaliation. For that reason, she has demonstrated the second 5 element of her wrongful termination in violation of public policy claim with
6 regards to gender discrimination and retaliation. However, as has also been 7 discussed, Ms. Schuller has failed to demonstrate a genuine issue of fact as to age 8 discrimination. 9 Summary judgment is denied on Ms. Schuller’s wrongful termination in
10 violation of public policy claim for gender discrimination and retaliation, but 11 granted to the extent her claim is based on a theory of age discrimination. 12 4. Washington Equal Pay Act
13 Ms. Schuller contends EWU violated the WEPA by paying her less than her 14 male counterpart on the EWU Men’s Basketball team, Mr. Legans. Defendants 15 argue Ms. Schuller did not perform equal work to Mr. Legans, and therefore the 16 WEPA does not apply. The Court finds questions of fact precluding summary
17 judgment as to whether Ms. Schuller and Mr. Legans performed equal work, and 18 whether the coaches’ wage disparity was based on factors other than gender. 19 Under the WEPA, an employer may not discriminate based on gender in
20 providing compensation between similarly employed employees. RCW 1 49.58.020(1). “For purposes of [the WEPA], employees are similarly employed if 2 the individuals work for the same employer, the performance of the job requires
3 similar skill, effort, and responsibility, and the jobs are performed under similar 4 working conditions.” RCW 49.58.020(2). Discrimination under the WEPA does 5 not include different compensation based in good faith on a bona fide job-related
6 factor that is consistent with business necessity, is not based on or derived from a 7 gender-based differential, and accounts for the entire differential. RCW 8 49.58.020(3). 9 As the WEPA is virtually identical to the Federal Equal Pay Act, 29 U.S.C.
10 § 206(d), Washington courts look to federal decisions interpreting that act when 11 applying the WEPA. Hudon v. W. Valley Sch. Dist. No. 208, 123 Wn. App. 116, 12 124, 97 P.3d 39 (2004).
13 “A plaintiff states a prima facie case under the equal pay act by proving that 14 men and women received different pay for equal work.” Id. “Once the prima facie 15 case is established, the burden shifts to the employer to prove that . . . the wage 16 disparity is ‘based in good faith on a factor or factors other than sex.’” Id. (quoting
17 former RCW 49.12.175). “[W]hether the employer relied on a factor other than sex 18 is usually a question of fact.” Id. 19 “The crucial finding on the equal work issue is whether the jobs to be
20 compared have a common core of tasks, i.e. whether a significant portion of the 1 two jobs is identical.” Stanley v. Univ. of S. California, 178 F.3d 1069, 1074 (9th 2 Cir. 1999). “When a plaintiff establishes such a common core of tasks, the court
3 must then determine whether any additional tasks, incumbent on one job but not 4 the other, make the two jobs substantially different.” Id. (quotations omitted). 5 It is undisputed that Ms. Schuller received less pay than Mr. Legans. As Ms.
6 Hickey conceded at her deposition, there are questions of fact as to whether the 7 two coaches’ jobs are equal. While Defendants assert Mr. Legans had additional 8 media responsibilities, whether these responsibilities make the two coaching 9 positions unequal is a question of fact for the jury.
10 Ms. Schuller has demonstrated her prima facie case. Therefore, to be entitled 11 to summary judgment, Defendants must show the wage disparity is based on 12 factors other than sex. Here too the Court finds sufficient evidence in the record to
13 create a question of fact. The Court denies summary judgment on Ms. Schuller’s 14 WEPA claim. 15 5. Breach of Contract 16 Ms. Schuller contends Defendants breached her contract by terminating her
17 without cause. Defendants move for summary judgment on the basis of the 18 termination for-convenience clause in her contract. The Court agrees Ms. 19 Schuller’s contract permitted Defendants to terminate her contract without cause,
20 and grants Defendants summary judgment on this claim. 1 To state a claim for breach of contract under Washington law, a plaintiff 2 must plausibly allege (1) the existence of a valid contract; (2) breach of a duty
3 imposed by that contract; and (3) damages resulting from the breach. Nw. Indep. 4 Forest Mfrs. v. Dep’t of Labor & Indus., 78 Wn. App. 707, 712, 899 P.2d 6 (1995). 5 Contract interpretation is generally a question of law. Viking Bank v.
6 Firgrove Commons 3, LLC, 183 Wn. App. 706, 711, 334 P.3d 116 (2014). 7 “Washington follows the ‘objective manifestation theory’ of contract 8 interpretation, under which the focus is on the reasonable meaning of the contract 9 language to determine the parties’ intent.” Id. Extrinsic evidence may not be used
10 to contradict a contract’s unambiguous written terms or show an intent independent 11 of the contract, but may be used to aid the trial court in interpreting what is 12 contained in the contract. Paradise Orchards Gen. P’ship v. Fearing, 122 Wn.
13 App. 507, 517, 94 P.3d 372 (2004). 14 Here, Ms. Schuller’s contract was unambiguous. It provided that she could 15 be “terminated for convenience without cause, with the approval of the President, 16 written notice to the employee, accompanied by the payment of six months’
17 salary.” Ms. Schuller’s claim that the parties never intended the contract to provide 18 for termination without cause is contradicted by the contract’s plain language. As 19 the contract’s clear written terms granted Defendants the option to terminate her
20 without cause, Ms. Schuller may not use extrinsic evidence, such as university 1 policy, verbal assurances, or the parties conduct, to contradict these terms or 2 demonstrate an intent independent of the contract.
3 At oral argument, Ms. Schuller argued the parties entered into an oral 4 modification of the contract to clarify that she would not be terminated without 5 cause. However, the record does not contain evidentiary support demonstrating a
6 contract modification, and Ms. Schuller does not identify the additional 7 consideration Washington law requires for the modification of an existing contract. 8 See Boardman v. Dorsett, 38 Wn. App. 338, 341, 685 P.2d 615 (1984). As such, 9 there is no genuine dispute of fact as to a subsequent oral modification.
10 Ms. Schuller fails to demonstrate Defendants breached a contractual duty by 11 terminating her without cause, and Defendants are entitled to summary judgment 12 on her breach of contract claim.
13 6. Wrongful Withholding of Wages 14 In addition to claiming damages for breach of contract, Ms. Schuller 15 contends Defendants wrongfully withheld her wages after terminating her without 16 cause.
17 Washington law provides a cause of action against any employer and its 18 officers or agents who willfully and with the intent to deprive the employee of any 19 part of her wages, pays the employee a lower wage than obligated. RCW
20 49.52.050, .070. A failure to pay wages as obligated is not intentional where a bona 1 fide dispute as to pay exists. Pope v. Univ. of Washington, 121 Wn.2d 479, 491 2 n.4, 852 P.2d 1055 (1993). A “bona fide” dispute is a “fairly debatable” dispute
3 over whether all or a portion of the wages must be paid. Schilling v. Radio 4 Holdings, Inc., 136 Wn.2d 152, 161, 961 P.2d 371 (1998). 5 As discussed above, Ms. Schuller’s contract permitted Defendants to
6 terminate her without cause. There is no genuine dispute Defendants paid Ms. 7 Schuller the wages she was entitled to. While Ms. Schuller disputes whether she 8 could be terminated without cause, this constitutes a bona fide dispute over 9 whether Defendants were obligated to pay her. Defendants are entitled to summary
10 judgment on Ms. Schuller’s wrongful withholding of wages claim. 11 7. § 1983 Claims 12 Ms. Schuller advances 42 U.S.C. § 1983 claims for the violation of her
13 constitutional rights under the Fourteenth Amendment. She advances one claim for 14 violation of her procedural due process rights based on EWU’s termination of her 15 without cause. She also advances a claim for violation of her rights under the equal 16 protection clause based on EWU’s gender discrimination. Defendants move for
17 summary judgment on Ms. Schuller’s procedural due process claim, and assert Ms. 18 Hickey is entitled to qualified immunity. They have not moved for summary 19 judgment on Ms. Schuller’s equal protection claim.
20 The Fourteenth Amendment protects individuals against the deprivation of liberty or property by the government without due 1 process. A section 1983 claim based upon procedural due process thus has three elements: (1) a liberty or property interest protected by the 2 Constitution; (2) a deprivation of the interest by the government; (3) lack of process. The Due Process Clause does not create substantive 3 rights in property; the property rights are defined by reference to state law. 4 Portman v. County of Santa Clara, 995 F.2d 898, 904 (9th Cir. 1993). “A 5 government employee has a constitutionally protected property interest in 6 continued employment when the employee has a legitimate claim of entitlement to 7 the job.” Id. “If under state law, employment is at-will, then the claimant has no 8 property interest in the job.” Id. 9 Under Washington law, an at-will employee is one who can be terminated 10 for any reason. Gardner v. Loomis Armored Inc., 128 Wn.2d 931, 935, 913 P.2d 11 377 (1996). 12 Ms. Schuller’s contract provided that she could be terminated for 13 convenience without cause, i.e., for any reason. Therefore, Ms. Schuller was an at- 14 will employee without a constitutionally protected property interest in her 15 employment. Because Ms. Schuller was an at-will employee, Defendants did not 16 violate her procedural due process rights by terminating her without cause. 17 Additionally, as Ms. Schuller has not demonstrated Ms. Hickey violated a clearly 18 established constitutional right to procedural due process, Ms. Hickey is entitled to 19 qualified immunity. Defendants are entitled to summary judgment on Ms. 20 Schuller’s § 1983 procedural due process claim. 1 However, Ms. Schuller’s § 1983 equal protection claim survives dismissal 2 because Defendants have not moved for summary judgment upon it.
3 8. § 1985(3) Claim 4 In her complaint, Ms. Schuller asserts a claim for conspiracy to violate her 5 civil rights under 42 U.S.C. § 1985(3). Defendants argue, and Ms. Schuller now
6 concedes, this claim is not legally viable as Ms. Schuller lacks evidence of two or 7 more people involved in a conspiracy. See Hunter v. Ferebauer, 980 F. Supp. 2d 8 1251, 1261 (E.D. Wash. 2013). The Court agrees, and grants Defendants summary 9 judgment on this claim.
10 9. Intentional Infliction of Emotional Distress 11 Finally, Ms. Schuller asserts a state law claim for intentional infliction of 12 emotional distress in her complaint. Defendants argue, and Ms. Schuller again
13 concedes, that their behavior was insufficiently extreme and outrageous for Ms. 14 Schuller to demonstrate a prima facie case. Repin v. State, 198 Wn. App. 243, 265- 15 66, 392 P.3d 1174 (2017). The Court accepts Ms. Schuller’s concession, and grants 16 Defendants summary judgment on this claim.
17 ACCORDINGLY, IT IS HEREYBY ORDERED: 18 1. Defendants’ Motion for Summary Judgment, ECF No. 46 is GRANTED in 19 part and DENIED in part.
20 2. The following claims against Defendants are DISMISSED with prejudice: 1 a. Age discrimination under WLAD, ch. 49.60 RCW; 2 b. Public policy wrongful termination, to the extent it is based on
3 allegations of age discrimination; 4 c. Breach of contract; 5 d. 42 U.S.C. § 1983 claim for violation of Ms. Schuller’s procedural due
6 process rights; 7 e. Wrongful withholding of wages; 8 f. Conspiracy to deprive Ms. Schuller of her civil rights under 42 U.S.C. 9 § 1985(3); and
10 g. Intentional infliction of emotional distress. 11 3. On or before March 7, 2025 the parties shall contact the courtroom deputy at 12 linda_hansen@waed.uscourts.gov to schedule a video status conference. The
13 parties shall confer in advance of the status conference and be prepared to 14 discuss the following issues: 15 a. A preferred trial date and estimated length of trial. 16 b. Whether this matter should be referred for mediation.
17 c. The following deadline dates will be outlined in an order after the 18 status conference. Be prepared to discuss these deadlines if there are 19 any changes:
20 Hearing Request re deposition designations: 42 days before trial 1 Cross designations: 28 days before trial 2 Objections to designations: 21 days before trial 3 Exhibit/Witness lists: 35 days before trial 4 Objections to Exhibit/Witness lists: 28 days before trial 5 Response to Exhibit/Witness objections: 21 days before trial 6 Motions in Limine: 42 days before trial 7 Response to Motions in Limine: 36 days before trial 8 Replies to Motions in Limine: 28 days before trial 9 Pretrial Order: 21 days before trial 10 Trial Briefs, voir dire: 25 days before trial 11 Jury Instructions (Agreed/Disputed): 25 days before trial 12 Memo object to disputed Jury Instructions: 25 days before trial 13 Pretrial Conference/Motion in Limine Hrg: 14 days before trial 14|| IT IS SO ORDERED. 15 The District Court Executive is directed to enter this Order and forward copies to the parties. 17 DATED February 27, 2025. 18 □□□ 19 Rebecca L. Pennell United States District Judge 20
ORDER ON DEFENDANTS’ MOTION BOR CTINAINAA RV TTINGCNMENT * 97