                                                                                                                  FILED
                                                                                                          COURT
                                                                                                             1    OF
                                                                                                                  S4PP    ALS

                                                                                                      2015 FEB 18
                                                                                                                  AM 9: 23
      IN THE COURT OF APPEALS OF THE STATE OF WASH

                                               DIVISION II

KIM TOSCH,                                                                           No. 45820 -9 -II


                                    Appellant,


         v.



    YWCA PIERCE COUNTY,                                                     UNPUBLISHED OPINION


                                    Respondent.




        SUTTON, J. —       Kim Tosch appeals the superior court' s summary judgment dismissal of her

age discrimination claim against her former employer, the YWCA' Pierce County ( YWCA).

Tosch argues that the superior court erred because she presented sufficient evidence to create a

genuine issue of material fact ( 1) of a prima facie case of age discrimination and ( 2) whether the

YWCA' s . stated    reasons   for terminating her        employment were pretextual.             We hold that Tosch


presented     sufficient evidence   to    create   a   genuine    issue   of material    fact that ( 1)   the YWCA' s


articulated   reasons    for terminating Tosch          were     pretext;   or (   2) although those reasons were


legitimate, a genuine issue of material fact exists whether age was a substantial motivating factor

in the YWCA' s decision to terminate her. We reverse and remand.

                                                        FACTS


        In September 2011, the YWCA hired Kim Tosch when she was 57 years old as a paralegal


and   legal   advocate    for its legal   services     program.      The YWCA considered Tosch an at -will


employee. The YWCA terminated Tosch' s employment less than one year later, claiming that her



1
    Young   Women'   s   Christian Association.
No. 45820 -9 -I1



work performance was poor and that she missed an important filing deadline for a court document.

Two     people   supervised   Tosch: (   1)   Hannah McLeod, manager of the paralegal /legal advocate


employees, and (2) Kevin Rundle, director of legal services and the sole attorney in the office. In

2011, hiring decisions at the YWCA were made by a group of people. In August 2012, McLeod

and Rundle jointly decided to terminate Tosch.

         The YWCA policy directed supervisors to document disciplinary action in an employee' s

file.   That policy allowed a supervisor to discipline a YWCA employee for substandard work

performance. The record does not contain any evidence of disciplinary action against Tosch, even

though the YWCA offered several examples of formal action against other employees. 2
                                                                                                                3;
         According to   Tosch,    when she started   the job, she received " virtually   no official   training "

in February 2012, Rundle changed her work responsibilities and for one month, Tosch worked

only on paralegal work to become proficient with the caseload; at the end of the month, Rundle

told her she had done well; the next month, Rundle tasked Tosch with only legal advocate work,

and Tosch did not receive any negative feedback on her performance.

          Tosch indicated she had a positive relationship with Rundle until a conversation around

April 2012, in which Tosch told him that she was 57 years old, rather than 47 years old as he had

believed.    Rundle "      seemed   stunned"    at the information and from that moment Rundle was


 standoffish"     toward   her.   Clerk' s Papers ( CP)   at   187, 188.   After that conversation, Tosch said


her supervisors moved her into McLeod' s office and re- assigned her a paralegal caseload in




2 See e. g., Clerk' s Papers ( CP) at 111.

3CPat196.


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No. 45820 -9 -II



addition    to the advocacy           work she     had been    assigned earlier, which " overwhelm[ ed]"         her. CP at


188.      She was not allowed to work any overtime, unlike other paralegal and legal advocate

employees. According to Tosch, she was unaware that Rundle or McLeod were unhappy with her

work until after Rundle learned of her true age.


          In August 2012, Rundle                   formally   reviewed        Tosch'   s   work   performance.   Before the


evaluation meeting, McLeod told Tosch that she should not respond to what Rundle said during

her    evaluation and         to " just   sign [   the   evaluation    form]" due to Rundle' s potential reaction to a


difference of opinion. CP at 189. The evaluation form listed eight competency categories and the

reviewer was        to   rate   the   employee as "        Exceeds Expectation," " Meets Expectation," or " Needs


Improvement."            CP   at   63 -64. Rundle rated Tosch as " Needs Improvement" for three categories,


 Meets Expectation" for the                other   five   categories, and      listed five   areas   for improvement. CP at


63 -64.    For   an overall performance              rating, Rundle      checked "     Needs Improvement," the second -


lowest    available      rating before " Unsatisfactory.         "4 CP at 65. Tosch informed the Human Resources

Director Ryann Robinson that                 she   disagreed   with    this   evaluation.    Tosch said that Robinson told


her that Rundle' s rating of her work performance was not a reason to terminate her.

           According to Rundle, on August 27, he discovered that a document written by Tosch had

not    been filed   with      the   superior court on       its due date.     According to Tosch, Rundle told her that

the document was due to be filed on an incorrect date, but he blamed Tosch for the oversight.

Rundle and McLeod jointly discussed terminating Tosch; Rundle also discussed the termination




4 The evaluation form provided five possible ratings for an employee' s overall performance rating:
  Outstanding," " Exceeds Expectations," " Meets Expectations," " Needs Improvement," or
 Unsatisfactory." CP at 65.


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with   Robinson.       The next. day, Rundle and Robinson met with Tosch and told her that her

employment was terminated. The YWCA did not give Tosch an explanation for her employment

termination.       Neither Rundle nor McLeod told Robinson that Tosch' s termination was due to


substandard work performance.


          The YWCA' s      reasons    for terminating Tosch     changed over   time.   The first reason Rundle


and McLeod gave was the late -filed court document, but they later asserted that neither supervisor

had    ever   been   satisfied with   Tosch'   s work performance.    After the YWCA terminated Tosch,


McLeod told a new employee that Tosch did not learn quickly, explaining that Tosch " was a `nice

lady   but    she was older.'   CP at 201.


          Tosch filed an age discrimination complaint against the YWCA under Washington' s Law

Against Discrimination (WLAD) 5. The superior court granted the YWCA' s motion for summary

judgment and dismissed Tosch' s lawsuit with prejudice. Tosch appeals.


                                                   ANALYSIS


                                           I. STANDARD OF REVIEW


          We review summary judgment rulings de novo, viewing the facts in the light most

favorable to the nonmoving party. Scrivener            v.   Clark Coll., 181 Wn.2d 439, 444, 334 P. 3d 541


 2014).      A trial court properly grants summary judgment where the pleadings and affidavits show

no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.

CR 56( c).      If reasonable minds could reach different conclusions about a fact, a genuine issue of


material fact exists. Marquis v. City ofSpokane, 130 Wn.2d 97, 105, 922 P. 2d 43 ( 1996).




5 Chapter 49. 60 RCW.


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No. 45820 -9 -II



           The purpose of WLAD is to eliminate and prevent discrimination in the workplace. RCW


49. 60. 010.      The legislature has directed us to construe the WLAD liberally to accomplish its

purpose.        RCW 49. 60. 020.   WLAD prohibits an employer from making employment decisions

based   on a person' s age of   40   years and older.    RCW 49. 60. 180( 2); RCW 49. 44. 090( 1).


                   II. TOSCH PRESENTED SUFFICIENT EVIDENCE OF AGE DISCRIMINATION


           Absent direct evidence of employment discrimination, Washington courts apply the

McDonnell Douglas three -part burden -shifting           analysis.     Scrivener, 181 Wn.2d at 445 -46 ( citing

McDonnell -Douglas Corp. v. Green, 411 U.S. 792, 802 -04, 93 S. Ct. 1817, 36 L. Ed. 2d 668

 1973)).    First, the employee must establish a prima facie case of discrimination. Scrivener, 181


Wn.2d      at   446.   Second, the burden shifts to the employer to produce evidence of a non-


discriminatory reason for the negative employment action. Scrivener, 181 Wn.2d at 446. Lastly,

the burden shifts back to the employee to produce evidence that the employer' s reason for the

adverse employment action was pretextual.            Scrivener, 181 Wn.2d           at   446.   We hold that Tosch


presented genuine issues of material fact of a prima facie case of age discrimination and pretext.

                           A. Tosch' s Prima Facie Case of Age Discrimination


           To establish a prima facie case of employment discrimination, a plaintiff must show that:


 1) The     employee    belongs in the   protected class, (   2) the   employer     discharged the   employee, (   3)


the employee' s work was satisfactory when the employer made the adverse employment decision,

and (   4) the    employer replaced    the   employee with      a   significantly   younger person.      Griffith v.


Schnitzer Steel Indus., Inc., 128 Wn.        App. 438,   446 -47, 115 P. 3d 1065 ( 2005), review denied, 156


Wn. 2d 1027 ( 2006).        Under the satisfactory work prong, an employee must present facts that

demonstrate his or her work performance is a genuine issue of material fact; the employee' s




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No. 45820 -9 -II



subjective characterization of his or her work is insufficient. Grimwood v. Univ. ofPuget Sound,

Inc., 110 Wn.2d 355, 359 -60, 753 P. 2d 517 ( 1988). Because the YWCA does not argue that Tosch


failed to meet the first two elements of her prima facie burden, and, because as to the fourth element


the YWCA argues only that Tosch' s evidence that she was replaced by a younger employee is

 weak, "6 we address only the third element.?

         Tosch presented sufficient circumstantial evidence that her work performance was


satisfactory: Rundle told Tosch after a month of working only on paralegal tasks that she had done

a good job; Rundle also complimented Tosch' s work on the court document that he later criticized


her for filing late, even though Rundle had instructed Tosch to file it on the late day; and Rundle

and McLeod claimed that Tosch' s performance was never satisfactory, but neither of them filed a

formal    disciplinary    record   in Tosch'   s   file,   even though the YWCA' s policy dictated that

substandard work performance subjected an employee to discipline documented in the employee' s


file.   The YWCA presented evidence that Rundle and McLeod followed the documentation

procedure with other employees        for   substandard work performance.              Rundle' s formal evaluation




6 Br. of Resp' t at 26.

7 The YWCA' s characterization of Tosch' s evidence that she was replaced by a substantially
younger employee as " weak" is an implicit admission of a material issue of fact. Br. of Resp' t at
26. Regardless, Rundle admitted that Tosch' s work was reassigned to employees aged 24 and 31
years old after the YWCA terminated Tosch and that the YWCA ultimately replaced Tosch with
a new employee aged 49 years old. Proof that an employee was replaced by someone outside the
protected age   group is   not " absolute."    Grimwood, 110 Wn.2d at 363. Instead, under this element
the employee must at least show that the employer sought a replacement who had similar
qualifications, which      demonstrates     a continued need     for those   skills.    Grimwood, 110 Wn.2d at
363.     The YWCA hired a new paralegal and a new legal advocate after it terminated Tosch' s
employment.




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No. 45820 -9 -II



of   Tosch'   s   work,   completed        shortly before the YWCA terminated her,     rated   Tosch " Needs


Improvement," but          not "   Unsatisfactory," and Robinson told Tosch that this rating was not grounds

to terminate her.        CP    at" 65.   Before Tosch told Rundle how old she was and he began to treat her

differently, Tosch did not know that Rundle was displeased with her work.8 Tosch' s evidence that

her work performance was satisfactory is sufficient to satisfy her prima facie burden.

                               B. The YWCA' s Legitimate Non -Retaliatory Reason

          The burden thus shifts to the YWCA to provide a legitimate, nondiscriminatory reason for

terminating Tosch.             Hill v. BCTI Income Fund -I, 144 Wn.2d 172, 181, 23 P. 3d 440 ( 2001),


abrogated on        other grounds         by McClarty   v.   Totem Elec., 157 Wn.2d 214, 222, 137 P. 3d 844


 2006).   The YWCA met this burden by producing evidence that it terminated Tosch' s employment

because her work performance was poor and she failed to file a court document timely. Because

these reasons are legitimate reasons for terminating Tosch' s employment, the burden shifts back

to Tosch to produce evidence that the alleged nondiscriminatory reason for terminating her was

pretext for age discrimination. Scrivener, 181 Wn.2d at 446.


                                 C. Tosch Produced Sufficient Evidence of Pretext


          To establish pretext, an employee must offer sufficient evidence to create a genuine issue

of material fact either that ( 1) the employer' s reason is pretextual or ( 2) although the employer' s


stated reason is legitimate, discrimination nevertheless was a substantial factor motivating the




8 We note that YWCA' s response to Tosch' s evidence demonstrates that material issues of fact
remain.    YWCA presented evidence that Tosch did, in fact, know that Rundle and McLeod were
not   happy       with   her   work.     They also presented several notes regarding their frustration with
Tosch' s work performance, but these notes span only April and May 2012, rebutting YWCA' s
assertion that Rundle and McLeod were consistently displeased with Tosch' s work from the
beginning of her employment.


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No. 45820 -9 -II



employer.       Scrivener, 181 Wn.2d        at   448.    An employee is not required to disprove each of the


employer' s articulated reasons to satisfy the pretext burden of production. Scrivener, 181 Wn.2d

at   447. The plaintiff' s burden at trial is to prove that discrimination was a substantial factor in an


adverse employment action, not             the only motivating        factor. Scrivener, 181 Wn.2d             at   447.   An


employer may be motivated by multiple reasons, both legitimate and illegitimate, and still be liable

under the WLAD. Scrivener, 181 Wn.2d at 447.


          In Scrivener, Clark College failed to promote Scrivener, a temporary professor at Clark

College, to a tenured position, hiring a younger candidate instead. Scrivener, 181 Wn.2d at 442.

Clark College articulated " ambiguous reasons for not hiring Scrivener" to fill the tenured position

when     it   claimed   that the   other   candidates      were     clearly   qualified   and   were   the '        best fit.'"


Scrivener, 181 Wn.2d        at   448.   Scrivener presented sufficient evidence of pretext by showing that

the person with ultimate authority to promote her to a tenured position made several remarks

relating to a preference to hire younger people, hired many people under 40 but fewer over 40, and

made light of her interview for tenure by impersonating Jon Stewart, host of a television show

typically     associated with younger people.           Scrivener, 181 Wn.2d        at   443, 450. Further, Scrivener


met all minimum and desirable qualifications, while neither of the hired candidates met all the

desirable qualifications.        Scrivener, 181 Wn.2d         at   448.    Our Supreme Court held that Scrivener


presented sufficient evidence           to create a     genuine    issue   of material   fact that ( 1) Clark College' s


articulated reason was pretext or ( 2) although the reason was legitimate, age was a substantial


motivating factor in Clark College' s decision not to hire Scrivener. Id.




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No. 45820 -941



       Like Scrivener, Tosch presented sufficient evidence to create a genuine issue of material


fact that   either (   1)    the   YWCA'   s   articulated     reasons   were        pretext   or (   2)   the YWCA was


substantially motivated by age discrimination when the YWCA terminated her.

       First, after Rundle discovered Tosch' s true age, he began to treat her negatively. Tosch' s

desk was moved into supervisor McLeod' s office, and Rundle re- assigned Tosch paralegal duties


in addition to her advocacy duties, which overwhelmed her with work. Unlike other employees,

she was not allowed to work overtime.


       Second, the YWCA did not document Tosch' s " poor" work performance sufficiently to

terminate   her.   CP   at   85.   The YWCA did not take any formal disciplinary action against Tosch,

contrary to the YWCA' s written policy that it take such action for an employee' s poor work

performance.       The only documented unfavorable review of Tosch' s work, that Tosch was aware

of, came    shortly before her termination through Rundle'                 s    evaluation     that   rated   her   as "   Needs


Improvement" but        not "   Unsatisfactory." CP at 65. Robinson did not consider Rundle' s evaluation

of Tosch to be grounds for termination. The absence of poor work performance is circumstantial

evidence    that the   employer' s reasons      for termination     were       fabricated.     Griffith, 128 Wn. App. at

450.


        Third, the YWCA' s reason for terminating Tosch changed over time, from a late -filed court

document to wholly unsatisfactory              work   during   the entirety     of   her   employment.        Further, Tosch


was not given an explanation for her termination. And neither Rundle nor McLeod told Robinson

that Tosch' s termination was due to substandard work performance.


        Fourth, Tosch also presented direct evidence that the YWCA' s decision to terminate her

was motivated by her age: After the YWCA terminated her, McLeod, who had participated in the


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No. 45820 -9 -II



joint decision to   end   Tosch'   s employment, commented               that, though Tosch was "`          a nice   lady[,]   she




was older '   and   did   not   learn quickly. 9 CP at 201.


          The YWCA asserts that the late -filed court document was Tosch' s fault, that Rundle and


McLeod moved her office into McLeod' s office because of building construction, and that

Rundle'   s surprise at   learning   Tosch'   s age "   lacks   support."    Br.   of   Resp' t at 31.   To negate Tosch' s


claim of age discrimination, the YWCA cites to Rundle' s hiring several people over 40 years old.

But viewing the evidence in a light most favorable to Tosch, Tosch presented genuine issues of
material fact as to her performance, the reasons for her termination, and whether those reasons


were pretextual or    the YWCA was substantially                 motivated    by   age    discrimination. We hold that


the parties presented reasonable but competing inferences of discriminatory and nondiscriminatory

intent.


                                          III. SAME ACTOR INFERENCE


          The YWCA argues that because Rundle both hired and terminated Tosch, the superior

court   properly   granted      summary judgment        under    the   same actor       inference. Tosch argues that the


same actor inference does not apply because Rundle was not the sole decision -maker and he did




9 The YWCA argues that McLeod' s statements were stray remarks, not evidence of discriminatory
intent. In addressing whether a stray remark is probative of discriminatory intent, our Supreme
Court held that "[   w] hether or not     these statements           alone would    be    sufficient   to   show pretext[,]     or

that Scrivener' s age was a substantially motivating factor, they are circumstantial evidence
probative of discriminatory intent." Scrivener, 181 Wn.2d at 450 ( citing approvingly Reid v.
Google, Inc., 50 Cal. App. 4th 512, 538 -46, 235 P. 3d 988, 113 Cal. Rptr. 3d 327 ( 2010). The
Supreme Court       rejected     the stray   remark     doctrine       and noted "'     An age -based remark not made
directly in the context of an employment decision or uttered by a non -decision -make may be
relevant, circumstantial evidence of           discrimination. "'         Scrivener, 181 Wn.2d at 450 n.3 ( quoting
Reid, 50 Cal. App. at 539).

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No. 45820 -9 -I1



not   know her    actual age when   the YWCA hired Tosch.      The same actor inference is not enough


under these disputed facts to warrant dismissal on summary judgment.

         Where the same actor both hires and terminates an employee, an inference arises that the


employee was not discharged because of any attribute the actor was aware of when he or she hired

the   employee.    Hill, 144 Wn.2d   at   189. Such an inference, however, does not mean the employer


is entitled to summary judgment if the strength of the employee' s evidence of discrimination

overcomes    the   inference. Hill, 144 Wn.2d at 189 -90 ( even though Hill established a prima facie


case of discrimination and sufficient evidence of pretext, he failed to reasonably support a

circumstantial case of age discrimination because of the strong same actor inference in his case).

         Here, Tosch presented evidence that Rundle was not the sole person who decided to hire


and   terminate her, rebutting the YWCA' s same \actor inference.        More significantly, however,

Tosch has established a prima facie case of age discrimination and sufficient evidence of pretext


and this evidence is sufficient to overcome any benefit to the YWCA from the same actor

inference.


         We hold that Tosch presented sufficient evidence to create a genuine issue of material fact


that ( 1) the YWCA' s articulated reasons for terminating her were pretext; or ( 2) although the

reason was legitimate, a genuine issue of material fact exists whether age was a substantial




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No. 45820 -9 -II



motivating factor in the YWCA' s decision to terminate her. We reverse and remand.

        A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06.040,


it is so ordered.




We concur:




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