                                                                                              Filed
                                                                                        Washington State
                                                                                        Court of Appeals
                                                                                         Division Two

                                                                                          July 25, 2017
    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
 MAURICE CRAIN, Individually,                                       No. 49135-4-II

                               Appellant,

        v.

 STATE OF WASHINGTON DEPARTMENT
 OF SOCIAL AND HEALTH SERVICES,
 WESTERN STATE HOSPITAL,                                      UNPUBLISHED OPINION

                               Respondent.


       WORSWICK, J. — Maurice Crain, an African-American man, appeals the trial court’s

summary judgment dismissal of his employment discrimination lawsuit against the Department

of Social and Health Services (DSHS). Crain argues that the trial court erred in granting DSHS’s

motion for summary judgment because the trial court misapplied summary judgment standards

relating to employment discrimination claims and there is a genuine issue of material fact

regarding whether Crain’s race was a substantial factor in DSHS’s decision to terminate him.

Finding no error, we affirm summary judgment.

                                             FACTS

       Crain began working for Western State Hospital in 1990. Crain was later promoted to the

position of psychiatric security attendant. Due to an incident unrelated to this case, Crain was

working pursuant to a “Last Chance Agreement.” The Last Chance Agreement stated that Crain

would “strictly comply with DSHS policies” and that if DSHS determined that Crain committed

further acts of misconduct, he must voluntarily resign from his position. CP (Clerk’s Papers) at
No. 49135-4-II


124. The Last Chance Agreement also provided that DSHS “may immediately terminate

[Crain’s] employment for any violation of [the] Agreement.” CP at 125.

          On September 6, 2012, Crain was working in the legal offender unit and was responsible

for monitoring patient safety and observing patient behavior. During the unit’s mealtime, Crain

and Diane Parsons, a licensed practical nurse, escorted a patient, R.K.,1 to his room to eat his

meal. A few minutes later, R.K. exited his room and fell to the floor in a praying position.

Hospital policy prohibited patients from lying on the floor, although R.K. was known to kneel in

a praying position regularly.

          Five hospital employees, including Crain, walked past R.K. as he lay on the floor outside

of his room.2 Crain walked past R.K. at least four times and neither verbally nor physically

checked to see if R.K. was responsive. After R.K. had lain on the floor for approximately seven

minutes, Parsons noticed that R.K. was choking and unable to breathe. Parsons asked for Crain’s

assistance and began chest compressions and mouth sweeps to dislodge food stuck in R.K.’s

throat. R.K. was transported to a neighboring hospital and died two days later.

          Following R.K.’s death, Western State Hospital reassigned Crain and the four other

employees, who walked past R.K. while he was lying on the floor, to different departments

within the hospital. The four other employees included: Victoria David, a mixed race

supervising nurse; Margaret Karimi, an African-American non-permanent psychiatric security

attendant; Parsons, a Caucasian licensed practical nurse; and James Smith, an African-American

psychiatric security attendant.


1
    We use R.K.’s initials to protect his privacy.
2
    Much of this incident was recorded by Western State Hospital’s surveillance video cameras.


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No. 49135-4-II


        Western State Hospital reported R.K.’s death to both the Department of Health and the

Lakewood Police Department. The Department of Health determined it would not take any

disciplinary action regarding Crain’s nursing assistant license. Based on the Lakewood Police

Department’s report, the Pierce County Prosecuting Attorney’s Office elected to not pursue

criminal negligence charges against any hospital employees.

        In addition, the Washington State Patrol conducted an administrative investigation.

Based on the Washington State Patrol’s findings, DSHS decided to terminate Crain, Parsons, and

Smith. David resigned under a settlement agreement with the hospital, and Karimi’s

employment contract was not renewed.

        Following DSHS’s decision to terminate him, Crain received a “Notice of Intent to

Discipline” from Western State Hospital’s CEO, Ronald M. Adler. CP at 113-21. The notice of

intent to discipline stated:

        You were identified on the camera surveillance video walking by patient RK during
        this incident. By your own admission you did not physically check on patient RK
        or ask if he was “ok.” Your failure to assess patient RK, who was later identified
        as choking, led to his need for resuscitation.

CP at 113. Crain was also informed that he had violated the Last Chance Agreement and that he

had committed ethical violations for his dishonesty. Crain reported that he knelt down and

assessed R.K., determining that R.K.’s skin color and breathing did not indicate that he was in

distress. However, Crain’s statements were inconsistent with video surveillance and his own

statements to the Washington State Patrol, which showed that Crain did not assess R.K.’s skin

color and did not kneel down near R.K.

        Later, Crain received a “Notice of Dismissal” from Adler. CP at 95. The notice of

dismissal notified Crain that he was being terminated because of his “failure to assess a patient


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No. 49135-4-II


who was lying on the floor; [his] failure to follow protocol under [his] duties and responsibilities

as a Psychiatric Security Attendant; and the violation of [his] Last Chance Agreement.” CP at

95. The notice of dismissal also informed Crain that his failure to assess R.K.’s wellbeing

constituted misconduct and a failure to comply with DSHS policies.3

       Crain, Parsons, and Smith filed grievances with their union. Following negotiations

between the union and DSHS, Parsons’s and Smith’s terminations were adjusted to suspensions,

and their employment was restored. The union declined to pursue Crain’s grievance because it

determined that DSHS provided just cause for terminating him.

       Crain filed a lawsuit against DSHS for hostile work environment, disparate treatment,

unlawful retaliation, and actual discharge. Crain later dismissed the hostile work environment

and unlawful retaliation claims. DSHS then moved for summary judgment, arguing that Crain

failed to establish a prima facie case of disparate treatment because he was unable to show that




3
  Crain notes that multiple non-African-American employees that were working the night of
R.K.’s death were not disciplined and argues that this fact shows that DSHS was targeting
African-American employees. Crain presents a strained interpretation of the record. Joseph
Laureta, a Pacific-Islander registered nurse; Roberta Lopez, a Latin-American psychiatric
security attendant; and Katherine Paulino, a Pacific Islander psychiatric security attendant were
also on shift the evening of R.K.’s death. Laureta, Lopez, and Paulino were cleared of any
misconduct after the Washington State Patrol determined, aided by video evidence, that they did
not observe R.K. as he was choking on the floor and therefore did not fail to assess him or fail to
follow hospital procedures.

        Crain also states that Laureta, Lopez, and Paulino “stepped over R.K. as a matter of
course.” Br. of Appellant at 19 (emphasis omitted). This fact is simply not within the appellate
record. As stated above, Laureta, Lopez, and Paulino did not observe or even walk by R.K. as he
was choking on the floor, and they did not come into contact with R.K. until after Parsons began
resuscitating him.



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No. 49135-4-II


he was treated less favorably than similarly situated non-protected employees and because

DSHS’s decision to terminate him was supported by a legitimate and nondiscriminatory reason.

       After hearing oral argument on DSHS’s summary judgment motion, the trial court orally

ruled that DSHS “articulated a reason for why they were terminating [Crain]” and that the stated

reason was not pretextual. Verbatim Report of Proceedings (VRP) (June 17, 2016) at 16. The

trial court then entered an order granting DSHS summary judgment and dismissing Crain’s

claims with prejudice. Crain appeals.

                                            ANALYSIS

       Crain argues that the trial court erred in granting DSHS’s motion for summary judgment

because the trial court misapplied summary judgment standards relating to employment

discrimination claims and that there is a genuine issue of material fact regarding whether Crain’s

race was a substantial factor in DSHS’s decision to terminate him. We disagree.

                                        I. LEGAL PRINCIPLES

       We review the trial court’s grant of a motion for summary judgment de novo. Scrivener

v. Clark Coll., 181 Wn.2d 439, 444, 334 P.3d 541 (2014). When reviewing a grant of summary

judgment, we consider all facts and make all reasonable, factual inferences in the light most

favorable to the nonmoving party. 181 Wn.2d at 444. Summary judgment is appropriate when

there is no genuine issue of material fact and the nonmoving party is entitled to judgment as a

matter of law. CR 56(c).

       To overcome an employer’s motion for summary judgment in an employment

discrimination case, an employee must show that a reasonable jury could find that the

employee’s protected trait was a substantial factor in motivating the employer’s adverse actions.



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No. 49135-4-II


Scrivener, 181 Wn.2d at 445. An employee’s protected trait is a “substantial factor” when that

protected trait was a significant motivating factor bringing about the employer’s decision. 181

Wn.2d at 444. An employee may prove that his protected trait is a substantial factor by either

direct or circumstantial evidence. 181 Wn.2d at 445.

       If the employee does not produce direct evidence,4 we apply the burden-shifting analysis

set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668

(1973). Scrivener, 181 Wn.2d at 446. Under the McDonnell Douglas analysis, the employee

bears the initial burden of establishing a prima facie case of discrimination. 181 Wn.2d at 446.

To establish a prima facie disparate treatment discrimination case, the employee must show that

his employer treated some people less favorably than others because of their protected trait.

Alonso v. Qwest Commc’ns Co., 178 Wn. App. 734, 743, 315 P.3d 610 (2013). Accordingly, the

employee must show that (1) he belongs to a protected class, (2) he was treated less favorably in

the terms or conditions of his employment (3) than a similarly situated, nonprotected employee,

and (4) he and the nonprotected “comparator” were doing substantially the same work.

Washington v. Boeing Co., 105 Wn. App. 1, 13, 19 P.3d 1041 (2000).

       If the employee fails to establish a prima facie case of discrimination, the employer is

entitled to judgment as a matter of law. Fulton v. Dep’t of Soc. & Health Servs., 169 Wn. App.

137, 148, 279 P.3d 500 (2012). If, however, the employee succeeds in establishing a prima facie

case of discrimination, there is a rebuttable presumption of discrimination. 169 Wn. App. at 149.

The burden then shifts to the employer to provide a legitimate, nondiscriminatory reason for the


4
 Discriminatory statements by an employer and other “smoking gun” evidence of discriminatory
motive are considered “direct evidence” that a protected trait was a substantial factor. Fulton v.
Dep’t of Soc. & Health Servs., 169 Wn. App. 137, 148 n.17, 279 P.3d 500 (2012).


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No. 49135-4-II


adverse employment action. Scrivener, 181 Wn.2d at 446. If the employer meets its burden, the

employee must produce sufficient evidence that the employer’s alleged nondiscriminatory reason

for the adverse employment action was a pretext. 181 Wn.2d at 446. If the employee meets this

burden, the discrimination case proceeds to trial unless the trial court determines that no rational

fact finder could conclude that the employer’s action was discriminatory. 181 Wn.2d at 446.

           II. THE TRIAL COURT’S APPLICATION OF SUMMARY JUDGMENT STANDARDS

       First, Crain argues that the trial court erred in granting DSHS’s motion for summary

judgment because it misapplied summary judgment standards relating to employment

discrimination claims. We do not review this claim of error.

       As discussed above, we review summary judgment decisions de novo. Scrivener, 181

Wn.2d at 444. We conduct the same inquiry as the trial court and may affirm summary

judgment on any ground supported by the record. Riehl v. Foodmaker, Inc., 152 Wn.2d 138,

144, 94 P.3d 930 (2004); Washburn v. City of Federal Way, 178 Wn.2d 732, 753 n.9, 310 P.3d

1275 (2013). Because we may affirm summary judgment on any ground supported by the

record, we are not bound by the trial court’s reasoning. Accordingly, we do not review Crain’s

argument that the trial court misapplied summary judgment standards. Instead, we conduct our

analysis de novo.

                              III. RACE AS A SUBSTANTIAL FACTOR

       Crain argues that the trial court erred in granting DSHS’s motion for summary judgment

because there was a genuine issue of material fact regarding whether Crain’s race was a

substantial factor in DSHS’s decision to terminate him. We disagree.




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No. 49135-4-II


A.     Direct Evidence

       Crain argues that there is direct evidence that race was a substantial factor in DSHS’s

decision to terminate him. Br. of Appellant at 36, 38. Specifically, Crain states:

       There is abundant direct evidence indicating that Maurice Crain did everything that
       he possibly knew how to do for patient R.K. at the time of his choking event, and
       that other non-African American employees who were immediately present and
       who possessed medical training but did nothing to assist were favored heavily.

Br. of Appellant at 38.

       That Crain did his best to save R.K. and that others did not act is not the type of

“smoking gun” evidence described in Fulton. Thus, it is not direct evidence that Crain’s race

was a substantial factor in DSHS’s decision to terminate him. See Fulton, 169 Wn. App. at 148

n.17. Moreover, Crain does not point to any discriminatory statements made by DSHS.

Accordingly, Crain does not present direct evidence of discrimination.

B.     Circumstantial Evidence

       Because Crain does not provide direct evidence that his race was a substantial factor in

motivating DSHS’s decision to terminate him, Crain must establish a prima facie case of

disparate treatment to overcome DSHS’s motion for summary judgment. Scrivener, 181 Wn.2d

at 445-46.

       For purposes of this appeal, we assume without deciding that Crain establishes a prima

facie case of disparate treatment.5 In doing so, we note that (1) Crain is a member of a protected

class, (2) DSHS terminated Crain, Parsons, and Smith following the Washington State Patrol’s

determination that the employees committed misconduct by failing to assess R.K. as he lay on


5
 However, we note that Crain’s Last Chance Agreement may distinguish him from any valid
comparators.


                                                 8
No. 49135-4-II


the floor choking, and (3) DSHS later restored Parsons’s and Smith’s employment after

negotiations with their union.

C.     Legitimate and Nondiscriminatory Reasons for Termination

       Because we assume that Crain establishes a prima facie case of disparate treatment, we

presume that employment discrimination took place. Scrivener, 181 Wn.2d at 446. To defeat

this presumption, DSHS must provide a legitimate and nondiscriminatory reason for terminating

Crain. 181 Wn.2d at 446.

       In its notice of dismissal, DSHS notified Crain that he was being terminated because he

committed misconduct by failing to assess R.K. while he was lying on the floor, failing to follow

hospital policies and procedures, and committing ethical violations. Hospital policy prohibited

patients from lying on the floor and stated that patients have a right to adequate care in an

environment free from neglect. Additionally, DSHS stated that Crain was terminated because he

violated his Last Chance Agreement. The Last Chance Agreement provided that DSHS could

terminate Crain if it determined that he committed misconduct or violated hospital procedures.

       The record makes clear that Crain failed to both verbally and physically check R.K.’s

wellbeing as he was choking. In addition, DSHS determined that Crain’s account of the incident

was inconsistent and dishonest. DSHS determined that Crain committed misconduct because he

failed to check on R.K.’s wellbeing as he walked past R.K. and because he did not attempt to

pick R.K. up off of the floor. Further, Crain’s dishonesty was a violation of the hospital’s ethics

policies. Because DSHS determined that Crain committed misconduct, Crain was subject to

immediate termination under the Last Chance Agreement. As a result, DSHS provides

legitimate, nondiscriminatory reasons for terminating Crain.



                                                 9
No. 49135-4-II


D.     Pretextual Reasons for Termination

       Because DSHS provides legitimate, nondiscriminatory reasons for terminating Crain,

Crain must present sufficient evidence that DSHS’s alleged nondiscriminatory reasons were a

pretext. 181 Wn.2d at 446. An employee can show that his employer’s reasons for terminating

him are pretextual by offering sufficient evidence to create a genuine issue of material fact that

either (1) the employer’s reason is pretextual or (2) although the employer’s stated reason is

legitimate, discrimination was still a substantial factor motivating the employer’s adverse action.

181 Wn.2d at 446-47. For example, an employee may show that the employer’s stated reasons

are pretextual by showing that the reasons have no basis in fact or were not motivating factors it

considered in making its decision. 181 Wn.2d at 447-48.

       Crain argues that he is not obligated to show that DSHS’s stated reasons for terminating

him were pretextual, and he argues only that his “exoneration” by the Department of Health and

Pierce County Prosecuting Attorney’s Office shows that DSHS’s reasons for terminating him

were pretextual. That no disciplinary action was taken against Crain’s nursing assistant license

and that no criminal negligence charges were filed against him does not show that DSHS’s

legitimate and nondiscriminatory reasons for terminating him have no basis in fact, and it is

irrelevant in determining whether these reasons were a pretext. As a result, Crain fails to meet

his burden to present sufficient evidence that creates a genuine issue of material fact that either

DSHS’s reasons are pretextual or that race was nevertheless a substantial factor motivating

DSHS’s decision to terminate him. Accordingly, the trial court did not err in granting DSHS’s

motion for summary judgment.




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No. 49135-4-II


        We affirm summary judgment.

        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.



                                                                       Worswick, J.
 We concur:



                    Johanson, J.




                    Bjorgen, C.J.




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