                                                                      Supreme Court Cieri<



IN THE SUPREME COURT OF THE STATE OF WASHINGTON


PATRICIA BLACKBURN, DAVID )
CARPENTER, JACOB DAU,     )
DENNIS FANT, BONIFACIO    )
FORNILLOS, AKANELE IMO,   )
JOSE LOPEZ, RALPH PETERSON,
                          )
andMATTHEWSTALEY,         )
                          )
             Appellants,  )                     No. 91494-0
                          )
v.                        )                     ENBANC
                          )
STATE OF WASHINGTON       )
DEPARTMENT OF SOCIAL AND )
HEALTH SERVICES and       )                     Filed         JUl. 2 IJ 2016
WESTERN STATE HOSPITAL,   )
                          )
             Respondents. )
                     ·-----)

       FAIRHURST, J.-Nine employees (Employees) of Western State Hospital

(WSH) 1 assert that their employer has illegally taken race into account when making

staffing decisions in response to patients' race-based threats or demands. After a six-

day bench trial, the trial court found that WSH managers issued a staffing directive

that prevented African-American staff from working with a violent patient making


       1
        WSH is a division of the Department of Social and Health Services. We refer to the
respondents collectively as the "State" throughout this opinion.
Blackburn v. State, No. 91494-0

threats over the course of one weekend in 2011. Despite this race-based staffing

directive, the trial court entered a verdict for the State and dismissed Employees'

employment discrimination claims. We reverse the trial court and hold that the

State's racially discriminatory staffing directive violates the Washington Law

Against Discrimination (WLAD), RCW 49.60.180(3).

                   I. FACTS AND PROCEDURAL HISTORY

A.    Facts

      This case involves Employees' challenge to alleged discriminatory acts of

their employer WSH. WSH is a psychiatric hospital that cares for individuals with

serious mental illnesses. WSH patients tend to be aggressive, violent, and psychotic,

especially where Employees were staffed. Employees all worked on the

evening/swing shift on the same ward (ward F-5) of the Center for Forensic Services

at WSH. Employee Patricia Blackburn, a registered nurse (RN), worked as the

charge nurse on ward F-5. Her race is Caucasian. The other eight Employees identify

as various races and nationalities (African-American, black African, Filipino, and

Caucasian). These eight Employees worked as psychiatric security attendants

(PSAs) on ward F-5, where they helped care for patients.

      Although staff members are generally assigned to work in a particular home

ward, they may be reassigned during a shift to work on a different ward based on a




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Blackburn v. State, No. 91494-0

"'pull list"' that ensures staff members are "pulled away from their home wards on

an equal basis." Clerk's Papers (CP) at 2710 (Finding of Fact (FOF) 9).

      The trial court's findings focused on a staffing reassignment that involved

patient M.P. In 2004, M.P. was admitted to WSH through an adjudication of not

guilty by reason of insanity. M.P. was a particularly violent and intimidating patient

who had assaulted both patients and staff. He was often delusional as a result of

failing to take his medications and had spent significant time in seclusion and

restraints. M.P. had a history of methamphetamine abuse, and he suffered from

schizoaffective disorder, bipolar, and antisocial personality disorder. M.P. was

housed on ward F-8.

      M.P.'s violent behaviors and delusions escalated toward the end of March

2011. At that time, M.P. was usually staffed with two attendants during the day and

one at night. One of his regular attendants was Marley Mann, an African-American

PSA. 2 Andy Prisco was M.P.'s treatment team coordinator. He had worked

extensively with M.P. On Friday, April1, 2011, Prisco reported to RN4 Lila Rooks

that M.P. was making credible threats toward Mann. He also quoted M.P.'s

comments that he planned to "'fl'** up any [n word] working with him."' CP at

2710 (alteration in original) (FOF 6). Prisco, who was familiar with numerous

similar threats, believed that M.P.'s only credible threat directly targeted Mann and


      2
          Mann is not a party to this action.
                                                3
Blackburn v. State, No. 91494-0

no one else. The trial court found that "the threats were directed specifically to Mr.

Mann." CP at 2710 (FOF 6).

      Rooks shared Prisco's report with others. A decision was made that M.P.

should not have access to African-American staff during the weekend to ensure staff

safety. The trial court found that this decision "was likely an overreaction to Mr.

Prisco's reported concerns." CP at 2710 (FOF 7). Rooks communicated the staffing

decision to RN3s Barbara Yates and Beth Baltz.

      The next day, Yates called Blackburn to reassign three of Blackburn's PSAs

to work on other wards. Yates specifically·directed Blackburn to send a white staff

person to ward F-8, where M.P. resided. Seven of the nine Employees were working

the swing shift on ward F-5 at this time. Blackburn refused to depart from the pull

list and noted that the next three employees listed were all persons of color.

Blackburn again refused when Yates directed that she send the person "'with the

lightest skin."' CP at 2711 (FOF 10). Yates eventually directed Bonifacio Fornillos

to go to ward F-8. Fornillos obeyed this directive and proceeded to work on ward F-

8 without incident.

       M.P. did not commit any assaults over the weekend of April 2-3, 2011. The

trial court found that "the staffing directive ended" on Monday, April 4, 2011, and

noted that "none of the plaintiffs have been on a shift in which a similar staffing

assignment was made" since that time. CP at 2711 (FOF 12, 14).

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Blackburn v. State, No. 91494-0

B.     Procedural history

       Employees initially sued the State for employment discrimination in federal

court in 2011, asserting both state and federal law claims. After the State asserted

sovereign immunity over the claims under chapter 49.60 RCW, the parties agreed to

voluntarily dismiss their state law claims and refile them in Pierce County Superior

Court. 3

       The trial court held a six-day bench trial in 2015. The court entered findings

of fact and conclusions oflaw dismissing all of Employees' WLAD claims, issuing

a verdict for the defense. The factual findings focused on the particular staffing

incident involving patient M.P. over the course of one weekend in April 2011. The

court found that this staffing directive ended on April4, 2011, and that "none of the

plaintiffs have been on a shift in which a similar staffing assignment was made"

since April 2011. CP at 2711 (FOF 14). The court rejected Employees' disparate

treatment claim on two grounds, concluding (1) that they failed to prove a tangible

adverse employment action that was severe enough to be actionable and (2) that

"safety was the overriding factor" in the staffing directive, rather than race. CP at

2712 (Conclusion of Law (COL) 6). The trial court also dismissed Employees'

hostile work environment claim, noting that the staffing directive was not "so severe


       3
       The State prevailed on summary judgment in federal court on their federal claims, and the
United States Court of Appeals for the Ninth Circuit affirmed in an m1published opinion.
Blackburn v. State of Wash. Dep't of Soc. & Health Servs., 611 F. App'x 416 (9th Cir. 2015).
                                               5
Blackburn v. State, No. 91494-0

or pervasive" as to constitute a hostile work environment. CP at 2712 (COL 10); see

also CP at 2712 (COL 9). Employees sought direct review in this court, which we

granted.

                                   II. ANALYSIS

      Employees challenge multiple factual findings and conclusions of law. We

review findings of fact for substantial evidence. Hegwine v. Longview Fibre Co.,

162 Wn.2d 340, 352, 172 P.3d 688 (2007). As the party challenging the trial court's

factual findings, Employees have the burden to prove they are not supported by

substantial evidence. See Fisher Props., Inc. v. Arden-Mayfair, Inc., 115 Wn.2d 364,

369, 798 P.2d 799 (1990). "Substantial evidence" means evidence that is sufficient

'"to persuade a rational, fair-minded person of the truth of the finding."' Hegwine,

162 Wn.2d at 353 (quoting In re Estate of Jones, 152 Wn.2d 1, 8, 93 P.3d 147

(2004)). So long as this substantial evidence standard is met, "a reviewing court will

not substitute its judgment for that of the trial court even though it might have

resolved a factual dispute differently." Sunnyside Valley Irrig. Dist. v. Dickie, 149

Wn.2d 873, 879-80, 73 P.3d 369 (2003). We review conclusions of law de novo.

Robel v. Roundup Corp., 148 Wn.2d 35, 42, 59 P.3d 611 (2002); Hegwine, 162

Wn.2d at 348, 353.




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Blackburn v. State, No. 91494-0

A.    Factual challenges

      Employees raise various challenges to the trial court's factual findings that

generally relate to the duration and frequency of the State's race-based staffing

practices. Although the trial court found that the race-based staffing directive lasted

only one weekend and that Employees have not been subjected to similar staffing

incidents, Employees claim the State maintains a policy of racial staffing that it has

used on other occasions.

      We find that substantial evidence supports the trial court's factual findings.

The trial court weighed the witnesses' testimony and credibility and implicitly

determined that other staffing decisions described were not substantially similar to

the racial staffing directive at issue in April 2011, which involved a clear

communication that no staff members of a certain race were to be assigned to a

particular ward over the course of one weekend. Based on our review of the record,

Employees' challenges are not sufficient to disturb the trial court's factual findings

under the substantial evidence standard.

B.    Legal challenges

      Employees claim that the trial court erred in dismissing their disparate

treatment and hostile work environment claims. We agree with Employees that the

State's explicitly race-based staffing directive constituted facial discrimination in




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Blackburn v. State, No. 91494-0

violation ofRCW 49.60.180(3).

      Since 1949, the WLAD has existed to protect individuals from discrimination

on the basis of race, among other protected characteristics. The WLAD "shall be

construed liberally" to accomplish its antidiscrimination purposes. RCW 49.60.020.

RCW 49.60.180 prohibits racial discrimination in employment. At the federal level,

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, also contains

antidiscrimination provisions with some similar statutory language. Although this

case involves claims only under the WLAD, Washington courts often look to federal

case law on Title VII when interpreting the WLAD. See, e.g., Hill v. BCTI Income

Fund-I, 144 Wn.2d 172, 180, 23 P.3d 440 (2001). We view Title VII cases as "a

source of guidance," but we also recognize that "they are not binding and that we

are free to adopt those theories and rationale which best further the purposes and

mandates of our state statute." Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d

355, 361-62, 753 P.2d 517 (1988).

      The WLAD makes it unlawful for an employer "[t]o discriminate against any

person in compensation or in other terms or conditions of employment because of .

. . race." RCW 49 .60.180(3 ). This case involves claims of disparate treatment under

RCW 49.60.180(3). '""Disparate treatment" ... is the most easily understood type

of discrimination. The employer simply treats some people less favorably than others

because of their race, color, religion, sex, or national origin."' Shannon v. Pay 'N

                                          8
Blackburn v. State, No. 91494-0

Save Corp., 104 Wn.2d 722, 726, 709 P.2d 799 (1985) (alteration in original)

(quoting Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.IS, 97 S. Ct.

1843, 52 L. Ed. 2d 396 (1977)).

      When an employee makes out a claim of disparate treatment under the

WLAD, like Title VII, the employer's action is unlawful unless the employer has a

valid justification. See, e.g., Franklin County Sheriff's Office v. Sellers, 97 Wn.2d

317, 328-29, 646 P.2d 113 (1982) ("The County's decision to achieve a sexual

balance by providing a male counselor and female counselor resulted in the County

refusing to hire Sellers because of her sex. As such, the action was prohibited by

statute unless it was based upon a bona fide occupational qualification."); Healey v.

Southwood Psychiatric Hasp., 78 F.3d 128, 132 (3d. Cir. 1996) (policy of requiring

both males and females on all shifts: "When open and explicit use of gender is

employed, as is the case here, the systematic discrimination is in effect 'admitted'

by the employer, and the case will tum on whether such overt disparate treatment is

for some reason justified," such as through affirmative action or a bona fide

occupational qualification (BFOQ)); Int'l Union, United Auto., Aerospace & Agr.

Implement Workers ofAm. v. Johnson Controls, Inc., 499 U.S. 187, 199-200, Ill S.

Ct. 1196, 113 L. Ed. 2d 158 (1991) ("Whether an employment practice involves

disparate treatment through explicit facial discrimination does not depend on why

the employer discriminates but rather on the explicit terms of the discrimination ...

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Blackburn v. State, No. 91494-0

. The beneficence of an employer's purpose does not undermine the conclusion that

an explicit gender-based policy is sex discrimination under [Title VII] and thus may

be defended only as a BFOQ.").

      The trial court held that Employees' disparate treatment claim failed. We

disagree. According to the trial court's findings of fact, the State made staffing

decisions that explicitly prevented certain employees from working on a particular

ward over the course of one weekend due to their race. Although the trial court found

these staffing orders were "likely an overreaction," this does not change the resulting

discriminatory nature of the staffing decisions. CP at 2710 (FOF 7). The trial court

found that "the decision was made that [M.P.] should not have access to African[-]

American staff' and Yates directed that a "white staff person needed to go to F-8,"

instead of the African-American staff who were next on the pull list. CP at 2710

(FOF 7, 9). These overt race-based directives affected staffing decisions in such a

manner as to constitute discrimination in "terms or conditions of employment

because of ... race" in violation ofRCW 49.60.180(3). We hold that the trial court

erred in concluding otherwise.

      We also detennine that the State has no valid legal justification for its

discrimination. RCW 49.60.180 allows employers to take protected characteristics

into account in limited circumstances. See RCW 49.60.180(1) (prohibition against

discrimination in hiring does not apply if based on a BFOQ), (3) (permitting

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Blackburn v. State, No. 91494-0

segregated washrooms and locker facilities on the basis of sex and allowing the

Human Rights Commission to issue regulations or rulings "for the practical

realization of equality of opportunity between the sexes"), (4) (prohibition against

discrimination in advertising, job applications, and preemployment inquiries does

not apply if based on a BFOQ). In order to satisfy the BFOQ standard, the employer

must prove (1) that the protected characteristic is essential to job purposes or (2) that

all or substantially all persons with the disqualifying characteristic would be unable

to efficiently perform the job. Hegwine, 162 Wn.2d at 358.

      None of these statutory exceptions apply. RCW 49.60.180(3) allows limited

exceptions for classifications only based on sex, not race. And even if the BFOQ

defense from RCW 49.60.180(1) or (4) could apply in this case, which is doubtful,

the State waived it. CP at 2641; 1 Verbatim Report ofProceedings (Feb. 2, 2015) at

11. The State fails to assert any other defense that our statutes or case law recognize.

Therefore, Employees prevail on their disparate treatment claims.

      Employees also challenge the trial court's dismissal of their hostile work

environment claim. RCW 49.60.180(3) prohibits harassment based on a protected

characteristic that rises to the level of a hostile work environment. An employee

must demonstrate four elements for a hostile work environment claim: that the

harassment (1) was unwelcome, (2) was because of a protected characteristic, (3)

affected the terms or conditions of employment, and (4) is imputable to the

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Blackburn v. State, No. 91494-0

employer. Glasgow v. Ga.-Pac. Corp., 103 Wn.2d 403, 406-07, 693 P.2d 708

(1985); see also Fisher v. Tacoma Sch. Dist. No. 10, 53 Wn. App. 591, 595-96, 769

P.2d 318 (1989) (extending the hostile work environment standard in Glasgow to

race-based hostile work environment claims). The trial court held that the employees

failed to meet the third element, which requires that "[t]he harassment must be

sufficiently pervasive so as to alter the conditions of employment and create an

abusive working environment." Glasgow, 103 Wn.2d at 406. Harassing conduct has

also been described as "severe and persistent," and it must be determined "with

regard to the totality of the circumstances." Id. at 406-07. 4

       Based on the trial court's factual findings, which we find are supported by

substantial evidence, the trial court did not err in dismissing Employees' hostile

work environment claim. The trial court applied the correct legal standard and did

not err in concluding that the staffing decision over the course of a single weekend

did not rise to the level of severe or pervasive harassment.

       Employees request relief in the form of damages, declaratory and injunctive

relief, interest, attorney fees, and costs. RCW 49.60.030(2) allows successful



       4
          The Court of Appeals has adopted criteria "[t]o determine whether the harassment is such
that it affects the conditions of employment ... :the frequency and severity of the discriminatory
conduct; whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee's work performance." Washington v. Boeing
Co., 105 Wn. App. I, I 0, 19 P.3d 1041 (2000) (citing Sangster v. Albertson's, Inc., 99 Wn. App.
156, 163, 991 P.2d 674 (2000) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S. Ct.
367, 126 L. Ed. 2d 295 (1993))).
                                               12
Blackburn v. State, No. 91494-0

plaintiffs in WLAD actions to recover damages, injunctive relief, costs, and attorney

fees. Because we find that Employees have prevailed on their disparate treatment

claim and have complied with RAP 18.1 and RCW 49.60.030(2), we remand this

case to the trial court to determine the appropriate damages and reasonable attorney

fees to award in this case. On remand, the trial court should also consider whether

injunctive relief is appropriate and, if so, the trial court will be responsible for

crafting the scope of and enforcing any injunction issued.




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Blackburn v. State, No. 91494-0




WE CONCUR:




                                  14
