Johnson v. Express Rent & Own, Inc.
Johnson v. Express Rent & Own, Inc.
Opinion of the Court
— Ray Johnson sued his employer, Express Rent & Own, Inc., for firing him because of his age in violation of Washington’s employment discrimination law, RCW 49.60.180. The trial judge dismissed Johnson’s claim on summary judgment because Johnson had presented no evidence of discrimination. We affirmed on the basis of Hill v. BCTI Income Fund-I, 97 Wn. App. 657, 986 P.2d 137 (1999), aff’d in part and vacated in part by 144 Wn.2d 172 (2001). Johnson v. Express Rent & Own, Inc., noted at 98 Wn. App. 1066 (2000), review granted in part and remanded by 144 Wn.2d 1015 (2001). There we held that a person claiming employment discrimination must support the claim with evidence of a discriminatory motive to avoid judgment as a matter of law for the employer. Hill, 97 Wn. App. 657. The Washington Supreme Court then affirmed the result in Hill but vacated our opinion, holding that generally pretext evidence is sufficient to allow an employee to submit this issue to a jury. Hill v. BCTI Income Fund-I, 144 Wn. 2d 172, 23 P.3d 440 (2001). On remand, the Supreme
In vacating our opinion, the Supreme Court relied upon the United States Supreme Court’s recent decision in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S. Ct. 2097, 147 L. Ed. 2d 105 (2000). There, the Court clarified the last stage of the McDonnell Douglas
Our Supreme Court affirmed Hill because Hill was more than 40 years old
Express argues that Johnson’s case has the same problem. He was over 40 when hired and the same people who hired him later fired him. Express also emphasizes Johnson’s lack of discrimination evidence by noting that another store manager is not only over 40, but an “African American and a Muslim.” Resp. remand Br. at 3. Johnson counters that the same hiring-firing-actor inference is not persuasive here because he was hired specifically to fix Express’s credit problems, an area within his expertise; and once he “righted the ship, he was fired[.]” Appellant’s Br. on remand at 23. For help in weighing the persuasive force of the parties’ evidence, we turn again to Hill.
In evaluating the strength of the employee’s case, the Hill court examined the nature of Hill’s pretext evidence. Hill, 144 Wn.2d at 190 n.14. Hill’s supervisors testified that they fired her because she violated company policy by disclosing her salary and benefits to another office to which she wanted to transfer and then lied to them about doing so. Hill, 144 Wn.2d at 177-78. Hill denied disclosing the information, but she did not prove that her supervisors
Johnson’s evidence comes closer to suggesting mendacity, or at least a jury could so find. Johnson presented evidence that two of his supervisors said they did not think he deserved to be fired and that he was doing a good job; although his employer said his use of profanity was a reason, two supervisors said he used no more profanity than other employees; on the charge he improperly moved the payment due dates on a computer, his supervisors admitted authorizing this three or four times; on the charge he told customers he owned the store, one supervisor who overheard Johnson make hundreds of calls never heard the statement; and on the charge he was dishonest about a lost T.V., one supervisor said that was not a reason Johnson was fired. Johnson also offered evidence that his supervisors were inconsistent in stating the reasons he was fired and whether the firing decision was made by all of them or just one. Finally, Johnson testified that his supervisor told him he did not fit the image for the company. He explained that with one exception, all of “Express’ public contact employees are young, all are well under the age of 40, and all very much fit a youthful, fit, 'GQ’ looking mold.” Clerk’s Papers at 83.
In our previous opinion, we affirmed the trial court’s dismissal of plaintiff’s claim for outrage. Nothing in this opinion changes that decision; the Supreme Court accepted review of the age discrimination claim only and remanded for us to reconsider that claim.
Morgan and Houghton, JJ., concur.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
First, the plaintiff must establish a prima facie case of discrimination. If he succeeds, the burden shifts to the defendant to “ ‘produce [some] evidence that the plaintiff was rejected, or someone else was preferred, for a legitimate, nondiseriminatory reason.’ ” Reeves, 530 U.S. at 142 (quoting Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S. Ct. 1089, 67 L. Ed. 2d 207 (1981)). The defendant’s burden here is a burden of production. If the defendant meets the burden, the shifting burdens and presumptions disappear. The plaintiff retains the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against him, so he must then show, by a preponderance of the evidence, that the defendant’s offered reasons were a pretext for discrimination. Reeves, 530 U.S. at 143.
The statute forbids age discrimination against people 40 years old or older. RCW 49.60.205; RCW 49.44.090.
The court apparently assumed that an employer’s good faith but mistaken belief as to the factual basis for terminating an employee can amount to a pretext. But pretext is “a purpose or motive alleged or an appearance assumed in order to cloak the real intention or state of affairs.” Webster’s Third New International Dictionary 1797 (1969). If an employer fires an employee in a good faith but mistaken belief as to the factual basis, there is no pretext.
Reference
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- Ray Johnson v. Express Rent & Own, Inc.
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