Cornwell v. Microsoft Corp.

430 P.3d 229

Dawn CORNWELL, Petitioner,

v.MICROSOFT CORPORATION, a Delaware Corporation, Respondent.

No. 94846-1

Supreme Court of Washington.

Oral Argument Date: June 14, 2018

Filed NOVEMBER 29, 2018

Matthew J. Bean, Alexander J. Higgins, Cody Cortez Fenton-Robertson, Bean Law Group, 2200 6th Avenue, Suite 500, Seattle, WA 98121-1844, for Petitioner.

Gregory Alan Hendershott, Melissa Kimberly Mordy, Davis Wright Tremaine LLP, 777 108th Avenue NE, Suite 2300, Bellevue, WA 98004-5149, Laura Anne Turczanski, Stephen Michael Rummage, Davis Wright Tremaine LLP, 1201 3rd Avenue, Suite 2200, Seattle, WA 98101-3045, Cynthia B. Jones, Jones Legal Group, LLC, 1200 5th Avenue, Suite 625, Seattle, WA 98101-3118, for Respondents.

Robert Andrew Battles, Association of Washington Business, 1414 Cherry Street SE, Olympia, WA 98501-2341, Timothy J. O'Connell, Stoel Rives LLP, 600 University Street, Suite 3600, Seattle, WA 98101-3197, for Amici Curiae The Association of Washington Business, The Chamber of Commerce of the United States of America.

Jeffrey Lowell Needle, Attorney at Law, 705 2nd Avenue, Suite 1050, Seattle, WA 98104-1759, Christie Johnson Fix, Frank Freed Subit & Thomas, 705 2nd Avenue, Suite 1200, Seattle, WA 98104-1798, for Amicus Curiae Washington Employment Lawyers Association.

WIGGINS, J.

¶ 1 Dawn Cornwell asks us to reverse the grant of summary judgment in her retaliation claim against her former employer, Microsoft Corporation. At issue is whether she presented enough evidence to show that her supervisors had sufficient knowledge that she had taken a protected action under the Washington Law Against Discrimination (WLAD), RCW 49.60.030. Without establishing this knowledge, Cornwell cannot demonstrate a potential causal link between the adverse employment action taken against her and her protected activity. We hold that Cornwell presented sufficient evidence to survive summary judgment on the issues of knowledge and causation. The evidence tends to show that both of Cornwell’s supervisors had actual knowledge that Cornwell had previously engaged in protected activity before they subjected her to adverse employment action. As a result, we reverse the Court of Appeals and remand the case to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY

I. Factual History

¶ 2 While working for Microsoft, Cornwell believed that her then-supervisor was discriminating against her on the basis of sex, engaging in romantic favoritism, and taking retaliatory action against her. She hired an attorney and settled the case with Microsoft. The settlement was confidential, and Cornwell was no longer required to work under her then-manager, Todd Parsons.

¶ 3 Seven years later, Cornwell’s new manager, Mary Anne Blake, asked Cornwell to mentor under another Microsoft employee. After learning that the employee reported to Parsons, Cornwell told Blake that she could not mentor under the employee. Blake asked Cornwell why, and Cornwell responded that it was because she had filed a "lawsuit"¹ against Microsoft and could not report to Parsons. Cornwell also told Blake that the suit involved a review score issue and was confidential. Blake sought more information about the lawsuit from human resources and her direct supervisor, Nicole McKinley. Human resources did not have any information on file about the lawsuit and promised to follow up on the issue.

¶ 4 Meanwhile, Blake told Cornwell that she had inquired about the lawsuit with human resources but that they did not have any further information. She also asked Cornwell what would happen if her team needed to merge with Parsons’ team. Cornwell informed Blake that she was unable to discuss the lawsuit further because of the confidentiality agreement and expressed dissatisfaction that Blake had contacted human resources about the matter.

¶ 5 Shortly after Cornwell told her about the suit, Blake conducted a mandatory performance review of Cornwell. During that year, Cornwell had received positive reviews from her peers:

Dawn is [a] strong release manager able to pull all appropriate stakeholders together, drive meetings forward and succinctly, keep topics on point, and hold people to meeting deliverables.

....

... Dawn knows what me [sic] and my team need to be successful and she provides those resources proactively in a timely manner. I never have to wonder where a project stands when Dawn is leading the effort.

....

... She actively solicits feedback, is very receptive to any feedback received and also follows up on it.

....

... Dawn partners extremely well with others and has established a rapport and positive reputation with the many teams she works with.

Clerk’s Papers (CP) at 163-64. During her previous years working for Microsoft, Cornwell also had received good performance ratings and promotions. Despite this positive employment history, Blake informed Cornwell that she was trending toward a rating of "4," the second lowest possible score. Cornwell told Blake that she disagreed with that rating and was upset with this information. Blake followed up with human resources and McKinley about Cornwell’s response. Human resources promised to have Microsoft’s legal department review Cornwell’s performance rating.

¶ 6 Ultimately, Blake and McKinley recommended that Cornwell be rated "5," the lowest possible score. Other managers disagreed with the rating, believing that Cornwell was a higher performer. One manager did not have the "impression that Ms. Blake was giving Ms. Cornwell a fair chance to succeed" and "didn’t agree with her [Blake’s] assessment of [Cornwell’s] performance." CP at 202. Another manager involved in the performance rating process recalled being "very surprised as to how [Cornwell] was evaluated" and that "several of the managers in the discussion supported [Cornwell] as being a good performer, undeserving of a ‘5’ rating definition." CP at 212. Even Blake acknowledged that "in general Dawn received feedback that she’s a good team player. People found her personality to be enjoyable, and she brought a positive and upbeat experience to teams." CP at 56.

¶ 7 Despite these disagreements, McKinley said that she and Blake would "take the conversation ‘off-line,’ " meaning that Blake and McKinley would make the final decision about Cornwell’s performance rating without the involvement of the other managers. CP at 212. Cornwell’s final performance rating was assessed as a "5"—the lowest possible score. Human resources told Blake to not inform Cornwell of her review score "unless she asked about it." CP at 63. Cornwell was then laid off as part of a larger reduction in force. Cornwell remembers being told that she would not receive a review score rating because of the layoff. As a result, Cornwell did not learn about her low score until several years later when she was told that she could not be rehired at Microsoft because her final performance rating was so poor.²

II. Procedural History

¶ 8 Based on these events, Cornwell filed suit against Microsoft, alleging retaliation in violation of WLAD. Microsoft moved for summary judgment, arguing that Cornwell had failed to present evidence showing a prima facie case of discrimination. The trial court granted Microsoft’s motion for summary judgment because the judge believed that "there isn’t evidence that Ms. Blake, who gave [Cornwell] the bad [review] score, knew that there was a complaint under WLAD." Report of Proceedings at 40. As a result, the judge believed that Cornwell had failed to show a causal link between the adverse employment action taken against her and her prior lawsuit against Microsoft.

¶ 9 Cornwell appealed the trial court’s ruling to the Court of Appeals. The Court of Appeals affirmed the grant of summary judgment in an unpublished opinion. Cornwell v. Microsoft Corp., No. 74919-6-I, slip op. at 1-2, 2017 WL 2423178 (Wash. Ct. App. June 5, 2017) (unpublished), https://www.courts.wa.gov/opinions/pdf/749196.pdf. The court agreed that Cornwell had failed to present evidence to prove causation between her prior lawsuit and the adverse employment actions taken against her. Id. at 9. But it declined to address whether Cornwell’s prior lawsuit was "protected activity" under WLAD. Id. The court also declined to adopt Cornwell’s proposed standards of review for the claim. Id. at 13.

¶ 10 Cornwell appealed the Court of Appeals’ adverse decision to this court, and we accepted review of all issues.

STANDARD OF REVIEW

¶ 11 "We review a trial court’s grant of summary judgment de novo." Scrivener v. Clark Coll., 181 Wash.2d 439, 444, 334 P.3d 541 (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." Id. "[B]ecause of the difficulty of proving a discriminatory motivation," id. at 445, 334 P.3d 541, "[s]ummary judgment for an employer is seldom appropriate" in the employment discrimination context, Mikkelsen v. Public Utility District No. 1 of Kittitas County, 189 Wash.2d 516, 527, 404 P.3d 464 (2017). We must also "consider all facts and make all reasonable factual inferences in the light most favorable to the nonmoving party." Scrivener, 181 Wash.2d at 444, 334 P.3d 541.

ANALYSIS

¶ 12 We reverse the Court of Appeals. Cornwell has presented sufficient evidence to make a prima facie case that Microsoft retaliated against her in violation of WLAD. This evidence was adequate to create an issue of fact about whether there was a causal link between her prior suit and Microsoft’s decision to give her a poor review rating and terminate her. Under either the "actual knowledge" standard or the "knew or suspected" standard, Cornwell presented sufficient evidence of the employer knowledge necessary to show causation. Ultimately, summary judgment was improper, and we remand the case to the trial court for further proceedings.

I. Retaliation under WLAD

¶ 13 WLAD proscribes discrimination in employment on the basis of sex, race, sexual...