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                                                                  ~~~
                                                                  Ronald R. Carp-... ,...
                                                                  ~preme     Court Ciark


 IN THE SUPREME COURT OF THE STATE OF WASHINGTON


KATHRYN SCRIVENER,                             )
                                               )
                   Petitioner,                 )                    No. 89377-2
v.                                             )
                                               )                      En Bane
CLARK COLLEGE,                                 )
                                               )
                    Respondent.                )          Filed     SEP 1 8 2014
                                               )


         WIGGINS, J.-The purpose of Washington's Law Against Discrimination

(WLAD), chapter 49.60 RCW, is to eliminate and prevent discrimination in the

workplace. RCW 49.60.01 0. The legislature passed the statute after finding that

discrimination "threatens not only the rights and proper privileges of [Washington]

inhabitants but menaces the institutions and foundation of a free democratic state."

/d. Accordingly, the legislature directs us to construe the WLAD liberally.         RCW

49.60.020.

         Kathryn Scrivener sued Clark College, claiming that age was the reason it did

not hire her for a tenure track teaching position. She was 55 years old at the time,

squarely within the 40- to 70-year-old age range protected by the WLAD. The chosen

hires were both under the age of 40. The trial court granted summary judgment in

Clark College's favor, finding that Scrivener failed to prove that the college's stated

reason for its decision was a pretext. The Court of Appeals affirmed. Scrivener v. Clark
Scrivener v. Clark College, No. 89377-2


Col/., 176 Wn. App. 405, 407, 309 P.3d 613, review granted, 179 Wn.2d 1009, 316

P.3d 495 (2013).

      Today, we clarify the standard plaintiffs must meet to overcome summary

judgment.    Employees may satisfy the pretext prong of the McDonnell Douglas

framework by offering sufficient evidence to create a genuine issue of material fact

either (1) that the employer's articulated reason for its action is pretextual or (2) that,

although the employer's stated reason is legitimate, discrimination nevertheless was

a substantial factor motivating the employer. McDonnell Douglas Corp.        v. Green, 411

U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Applying this standard, we reverse

summary judgment. Scrivener created a genuine issue of material fact concerning

whether age was a substantial factor motivating Clark College's decision to hire

younger candidates.

                                          Facts

      Scrivener began teaching as an adjunct instructor at Clark College in 1994. In

1999, Clark College hired her as a full-time, temporary English instructor.         It has

renewed her one-year contract every year since that time. In 2005, she applied for a

tenure-track teaching position in the English Department.

      Clark College initiated the search for an English instructor in November 2005.

The college received 152 applications meeting the minimum qualifications, which

were a master's degree in English, rhetoric and composition, or professional-technical

writing, and teaching experience. From these applicants, the screening committee

interviewed 13 candidates who gave teaching demonstrations.                The screening




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Scrivener v. Clark College, No. 89377-2


committee then chose four candidates to refer to the president and vice president of

instruction.

       Scrivener was one of the four candidates the committee referred to the

president and vice president. She possessed all of the qualifications listed as required

and desirable on the recruitment announcement. President Branch and interim Vice

President of Instruction Sylvia Thornburg interviewed Scrivener in May 2006 and

informed her the same day that she was not chosen to fill either of the vacant English

positions. Instead, Clark College hired two applicants under the age of 40. Scrivener

was 55 years old at the time.

       Scrivener filed a complaint against Clark College for unlawful age discrimination

in violation of RCW 49.60.180. Scrivener's allegation of age discrimination is based

on the following evidence.

       During President Branch's 2006 "State of the College" address, he stated that

there was a "glaring need" for younger talent within the college's faculty. In a public

forum, President Branch also advocated requiring no experience for the English

positions. Scrivener argues that this creates an inference that he wanted to attract

younger applicants to the position.

       Scrivener additionally presents evidence that President Branch hired many

people under age 40 (only 44 percent of the tenure track faculty hires were 40 years

of age or older during the 2005-06 school year); made light of her interview by

impersonating Jon Stewart, host of television's The Daily Show; and requested

applicants with '"funk,"' "'i.e., youthfulness."' Scrivener, 176 Wn. App. at 410.




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Scrivener v. Clark College, No. 89377-2


      Clark College counters the allegation of age discrimination by asserting that 74

percent of its workforce is age 40 or over, both President Branch and interim Vice

President Thornburg were well above age 40, and the hired candidates were better

fits for both the institution and the English department. The college also directs the

court's attention to the steering committee's observation that Scrivener lost her place

at one point during her teaching demonstration, which could have caused some

confusion in a class. Other weaknesses were that she could have turned to face her

audience more when she was writing on the board and that "[w]hile [her] exuberance

and passion were seen by the committee as positive, there could be an off-putting

reaction by some passive students because of such an up-front style." Interim Vice

President Thornburg attests that age was not discussed during the consideration of

the candidates and that she and President Branch agreed that Scrivener was ranked

last among the finalists.

                                          Analysis

      Today, we discuss the WLAD, clarify how the WLAD plaintiffs may overcome

summary judgment, and explore whether the trial court properly granted summary

judgment.

                                 1. Standard of Review

      We review a trial court's grant of summary judgment de novo.          Camicia v.

HowardS. Wright Constr. Co., 179 Wn.2d 684, 693, 317 P.3d 987 (2014). Summary

judgment is appropriate only when there is no genuine issue as to any material fact

and the moving party is entitled to judgment as a matter of law. CR 56(c). When

making this determination, we consider all facts and make all reasonable, factual


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Scrivener v. Clark College, No. 89377-2


inferences in the light most favorable to the nonmoving party. Young      v. Key Pharm.,
Inc., 112 Wn.2d 216, 226, 770 P.2d 182 (1989).

                                 2. Age Discrimination Claims

      Under the WLAD, it is an unfair practice for an employer to refuse to hire any

person on the basis of age if the person is within the protected class of individuals

between the ages of 40 and 70. RCW 49.60.180(1 ); Griffith      v. Schnitzer Steel Indus.,
Inc., 128 Wn. App. 438, 446-47, 115 P.3d 1065 (2005).       At trial, the WLAD plaintiff

must ultimately prove that age was a "substantial factor" in an employer's adverse

employment action. Mackay v. Acorn Custom Cabinetry, Inc., 127 Wn.2d 302, 310,

898 P.2d 284 (1995). A "substantial factor" means that the protected characteristic

was a significant motivating factor bringing about the employer's decision. See id. at

311; 6A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL

330.01.01 (WPI) (6th ed. 2012). It does not mean that the protected characteristic was

the sole factor in the decision. See Mackay, 127 Wn.2d at 310-11; WPI330.01.01.

      In Mackay we rejected the proposition that employees must prove that

discrimination was the "determining factor" (i.e., that but for the discrimination, the

employer's decision would have been different). Mackay, 127 Wn.2d at 309-10. We

reasoned that to hold otherwise would be contrary to Washington's "resolve to

eradicate discrimination" and would warp this resolve into "mere rhetoric." /d. We

refused to "erect the high barrier to recovery implicated by the 'determining factor'

standard .... " /d. at 310-11.

      Relatedly, summary judgment to an employer is seldom appropriate in the

WLAD cases because of the difficulty of proving a discriminatory motivation. See


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Scrivener v. Clark College, No. 89377-2


Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 144, 94 P.3d 930 (2004); Sangster v.

Albertson's, Inc., 99 Wn. App. 156, 160, 991 P.2d 674 (2000) ("Summary judgment

should rarely be granted in employment discrimination cases."); see also Rice               v.
Offshore Sys., Inc., 167 Wn. App. 77, 90, 272 P.3d 865 (2012) (When the record

contains   reasonable     but   competing     inferences    of both     discrimination   and

nondiscrimination, the trier of fact must determine the true motivation.). To overcome

summary judgment, a plaintiff only needs to show that a reasonable jury could find

that the plaintiff's protected trait was a substantial factor motivating the employer's

adverse actions.    Riehl, 152 Wn.2d at 149.        "This is a burden of production, not

persuasion, and may be proved through direct or circumstantial evidence." /d.

       Where a plaintiff lacks direct evidence, 1 Washington courts use the burden-

shifting analysis articulated in McDonnell Douglas, 411 U.S. 792, to determine the

proper order and nature of proof for summary judgment. Hume v. Am. Disposal Co.,

124 Wn.2d 656, 667, 880 P.2d 988 (1994).

                             3. McDonnell Douglas Framework

       Under the first prong of the McDonnell Douglas framework, a plaintiff bears the

initial burden of establishing a prima facie case of discrimination, which creates a

presumption of discrimination. Riehl, 152 Wn.2d at 149-50; Kastanis          v. Educ. Emps.
Credit Union, 122 Wn.2d 483, 490, 859 P.2d 26, 865 P.2d 507 (1993). Once the

plaintiff establishes a prima facie case, the burden of production shifts to the employer


1 During the hearing on summary judgment, Scrivener's attorney conceded there was no
direct evidence of discrimination. She again did not argue that direct evidence existed before
the Court of Appeals. Therefore, we do not address her argument that she presented direct
evidence of discrimination. RAP 2.5(a). We likewise do not address her argument that we
should abandon the McDonnell Douglas framework. /d.

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Scrivener v. Clark College, No. 89377-2

to articulate a legitimate, nondiscriminatory reason for the adverse employment

action. Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 363-64, 753 P.2d

517 (1988).

      "If the Defendant meets this burden, the third prong of the McDonnell Douglas

test requires the Plaintiff to produce sufficient evidence that Defendant's alleged

nondiscriminatory reason for [the employment action] was a pretext." Hume, 124

Wn.2d at 667. Evidence is sufficient to overcome summary judgment if it creates a

genuine issue of material fact that the employer's articulated reason was a pretext for

a discriminatory purpose. /d. at 668; Grimwood, 110 Wn.2d at 364; Riehl, 152 Wn.2d

at 150.

      If the plaintiff satisfies the McDonnell Douglas burden of production

requirements, the case proceeds to trial, unless the judge determines that no rational

fact finder could conclude that the action was discriminatory. Hill v. BCTI Income

Fund-I, 144 Wn.2d 172, 186, 188-89,23 P.3d 440 (2001), overruled on other grounds

by McClarty v. Totem Elec., 157 Wn.2d 214, 137 P.3d 844 (2006).

                                  4. The Pretext Prong

      Today's review focuses on the pretext prong of the McDonnell Douglas

framework. The Court of Appeals applied an onerous standard, and we clarify what

is required. An employee may satisfy the pretext prong by offering sufficient evidence

to create a genuine issue of material fact either (1) that the defendant's reason is

pretextual or (2) that although the employer's stated reason is legitimate,

discrimination nevertheless was a substantial factor motivating the employer. Fell v.

Spokane Transit Auth., 128 Wn.2d 618, 643 n.32, 911 P.2d 1319 (1996); see Wilmot


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Scrivener v. Clark College, No. 89377-2


v. Kaiser Alum. & Chern. Corp., 118 Wn.2d 46, 73, 821 P.2d 18 (1991); Grimwood,

110 Wn.2d at 365.

         An employee does not need to disprove each of the employer's articulated

reasons to satisfy the pretext burden of production. Our case law clearly establishes

that it is the plaintiff's burden at trial to prove that discrimination was a substantial

factor in an adverse employment action, not the only motivating factor. See Mackay,

127 Wn.2d at 309-11. An employer may be motivated by multiple purposes, both

legitimate and illegitimate, when making employment decisions and still be liable

under the WLAD. See Mackay, 127 Wn.2d at 309-11.

         Here, the Court of Appeals required Scrivener to disprove that Clark College's

articulated reasons were motivating factors. The Court of Appeals stated,

                [t]o show pretext, a plaintiff must show that the defendant's
         articulated reasons (1) had no basis in fact, (2) were not really motivating
         factors for its decision, (3) were not temporally connected to the adverse
         employment action, or (4) were not motivating factors in employment
         decisions for other employees in the same circumstances.

Scrivener, 176 Wn. App. at 412 (emphasis added). The Court of Appeals omitted from

these four factors the possibility of proving that discrimination was a substantially

motivating factor in the employment decision, as we made clear in Wilmot, Fell, and

Riehl.

         In the earlier Kuyper case, the Court of Appeals listed these factors as

examples of how to prove the defendant's articulated reasons were pretextual: "a

plaintiff must show, for example, that the reason has no basis in fact, it was not really

a motivating factor for the decision, it lacks a temporal connection to the decision or

was not a motivating factor in employment decisions for other employees in the same


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Scrivener v. Clark College, No. 89377-2


circumstances." Kuyper v. Oep't of Wildlife, 79 Wn. App. 732, 738-39, 904 P.2d 793

(1995) (emphasis added). In the Fulton case, the Court of Appeals repeated these

four factors, omitting that they were only examples. Fulton v. Dep't of Soc. & Health

Servs., 169 Wn. App. 137, 161, 279 P.3d 500 (2012). Now in this case, the Court of

Appeals repeated the Fulton error, overlooking that a plaintiff may also establish

pretext by proving that discrimination was a substantially motivating factor in the

employment decision. This was error. A plaintiff may satisfy the pretext prong using

one of the four factors listed by the Court of Appeals, but the plaintiff may also satisfy

the pretext prong by presenting sufficient evidence that discrimination nevertheless

was a substantial factor motivating the employer.

                                  5. Summary Judgment

      We hold that Scrivener presented sufficient evidence to create a genuine issue

of material fact either (1) that Clark College's articulated reason was a pretext or (2)

that although the reason is legitimate, age was a substantial motivating factor in Clark

College's decision not to hire Scrivener.

      The college articulated ambiguous reasons for not hiring Scrivener. It argued

that the other candidates were clearly qualified and were the "best fit" for the college

and department. These are vague descriptions. Scrivener successfully taught at the

college as a full-time professor since 1999, before which she taught as an adjunct

professor. The record makes clear that she fulfilled all the minimum requirements and

the desired qualifications, while neither of the hired candidates fulfilled all of the

desired qualifications.




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Scrivener v. Clark College, No. 89377-2


       In response to Clark College's articulated reason for not hiring her, Scrivener

presented circumstantial evidence that age actually played a role in the college's

decision. When making all reasonable inferences in the light most favorable to the

nonmoving party, the individual charged with hiring tenured faculty wanted to hire

young individuals for the English position (at the expense of excluding members of a

statutorily protected class).

       President Branch was responsible for making final hiring decisions. Before the

college finalized the description of the English instructor position, President Branch

spoke at a public forum and advocated requiring zero experience for the college level,

instructor position. A trier of fact could infer that the President wanted to attract more

youthful candidates when making all reasonable inferences in the light most favorable

to Scrivener.

       Additionally, in the midst of the hiring process, President Branch gave his State

of the College address. He declared,

       The most glaring need for diversity [in Clark College's workforce] is in our
       need for younger talent. 74 % of Clark College's workforce is over forty.
       And though I have a great affinity for people in this age group, employing
       people who bring different perspective will only benefit our college and
       community.

His statement is not a typical diversity statement. 2 He expresses a desire to hire

individuals not within a protected class (people under 40) rather than individuals within

a protected class.


2 Clark College argues that President Branch's comments about diversity cannot support a
finding of pretext. It cites to multiple federal district court cases. However, these cases (and
the cases cited to therein) indicate that a diversity policy alone does not establish
discrimination. There must be some nexus between the policy and the specific employment


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Scrivener v. Clark College, No. 89377-2


       The Court of Appeals disregarded President Branch's statements in the State

of the College address as stray remarks that do not give rise to an inference of

discriminatory intent. See Scrivener, 176 Wn. App. at 415. We disagree. Whether or

not these statements alone would be sufficient to show either pretext or that

Scrivener's age was a substantially motivating factor, they are circumstantial evidence

probative of discriminatory intent. See Reid        v. Google, Inc., 50 Cal. 4th 512, 538-46,
235 P.3d 988, 113 Cal. Rptr. 3d 327 (201 0). 3

       During that same time, President Branch filled faculty positions with more

people under age 40 than people in the protected class.                  Scrivener presented

evidence that the president mocked her with a reference to a television show

associated with younger people and indicated he wanted candidates that display

youthfulness. Taken together, the evidence presented by Scrivener creates a genuine


action. Reed v. Agi/ent Techs., Inc., 174 F. Supp. 2d 176, 185-86 (D. Del. 2001) ("anecdotal
evidence regarding the aspirational purpose of an employer's diversity policy, and its intent
to ameliorate any underutilization of certain groups, is not sufficient" to raise an inference of
discrimination); see Jones v. Bernanke, 493 F. Supp. 2d 18, 29 (D.D.C. 2007) ("[T]he mere
existence of a diversity policy, without more, is insufficient to make out a prima facie case of
reverse discrimination."); Bernstein v. St. Paul Cos., 134 F. Supp. 2d 730, 739 n.12 (D. Md.
2001) ("A company's (or its CEO's) commitment to 'diversity,' if expressed in terms of creating
opportunities for employees of different races and both genders, or fostering workplace
tolerance, is not proof of discriminatory motive with respect to any specific hiring decision.");
Lutes v. Goldin, 62 F. Supp. 2d 118, 131 (D.D.C. 1999) (employer's "concern for diversity in
the workplace" is not evidence of an intent to discriminate). Viewing the evidence in the light
most favorable to the nonmoving party, there is evidence that age played a role in the hiring
for the English instructor position.

3  In Reid, the California Supreme Court rejected the stray remarks doctrine. 50 Cal. 4th at
517, 538-46. "Under this doctrine, statements that non-decision-makers make or that
decision makers make outside of the decisional process are deemed 'stray,' and they are
irrelevant and insufficient to avoid summary judgment." /d. at 516. The court rejected the
doctrine because it was "unnecessary and its categorical exclusion of evidence might lead to
unfair results." /d. at 517; see id. at 538-46. The court noted, "An age-based remark not
made directly in the context of an employment decision or uttered by a non-decision-maker
may be relevant, circumstantial evidence of discrimination." /d. at 539. We agree.

                                               11
Scrivener v. Clark College, No. 89377-2


issue of material fact concerning whether age was a substantial motivating factor in

Clark College's decision not to hire Scrivener. The parties presented reasonable but

competing inferences of discriminatory and nondiscriminatory intent. Therefore, a jury

should weigh the evidence.

                                     Conclusion

      We reverse the order granting summary judgment and remand to the trial court

for further proceedings consistent with this opinion. Attorney fees abide the final

outcome.




                                          12
No. 89377-2




      WE CONCUR.




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