Litvack v. Univ. of Wash.

546 P.3d 1068

Jamie LITVACK, Appellant,

v.UNIVERSITY OF WASHINGTON, Respondent.

No. 84592-6-I

Court of Appeals of Washington, Division 1.

Filed April 22, 2024

Honorable Adrienne McCoy, Judge.

Kenneth Wendell Masters, Shelby R. Frost Lemmel, Masters Law Group PLLC, 321 High School Road Ne, D3-#362, Bainbridge Island, WA, 98110-2648, Elizabeth Ann Hanley, Andrew Dean Boes, Schroeter Goldmark and Bender, 401 Union St., Ste 3400, Seattle, WA, 98101, for Appellant.

Howard Mark Goodfriend, Ian Christopher Cairns, Jonathan Collins, Smith Goodfriend PS, 1619 8th Ave., N, Seattle, WA, 98109-3007, Paul Richard Brown, Fox Rothschild LLP, 1001 4th Ave., Ste. 4400, Seattle, WA, 98154-1192, Skylar Anne Sherwood, Fox Rothschild, 1001 4th Ave., Ste. 4400, Seattle, WA, 98154-1065, Nicholas Ryan Major, Nick Major Law, PLLC, 450 Alaskan Way S Ste. 200, Seattle, WA, 98104-2785, Jessica Lynn Creighton, Attorney General’s Office UW Division, 4333 Brooklyn Ave., Ne, Seattle, WA, 98195-9475, for Respondent.

PUBLISHED OPINION

Mann, J.

¶1 Dr. Jamie Litvack appeals the summary judgment dismissal of her gender discrimination claim under the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW, and 42 U.S.C. § 1981. Dr. Litvack argues that the trial court erred in ruling that she failed to provide sufficient evidence under the pretext prong of the burden shifting McDonnell Douglas¹ framework which requires she produce evidence of a genuine dispute over 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.

¶2 Because the evidence shows competing inferences of discrimination and nondiscrimination, there is a genuine issue of material fact as to whether discrimination was a substantial factor motivating the employment decision. We reverse the order granting summary judgment dismissal of the discrimination claim and remand to the trial court for further proceedings.

I

A

¶3 In early 2016, Dr. Litvack began discussing potential employment with Dr. Neal Futran, the director of head and neck surgery in the Department of Otolaryngology at the University of Washington’s School of Medicine (Department and UW, respectively). On May 26, 2016, UW offered Dr. Litvack a 12-month appointment as acting assistant professor in the Department and the Veterans Affairs Puget Sound Health Care System (VA). Dr. Litvack accepted the appointment on June 11, 2016. Under the supervision of Dr. Futran, Dr. Litvack was required to divide her time between the VA, Harborview Medical Center (HMC), Eastside Specialty Clinic (ESC), and research, with the majority of her time split between Harborview and the VA. Her primary responsibilities were to provide general otolaryngology care at HMC and the VA while retaining the ability to pursue rhinology interests at both sites.

¶4 According to the offer terms, Dr. Litvack’s 12-month appointment was effective though June 30, 2017, and then subject to renewal for the following academic year up to four academic years. The offer also explained the Department’s expectation for a long and productive relationship:

While this is an annual appointment subject to renewal each year, we expect that you will have a long and productive relationship with the University of Washington and our department. The Department is currently recruiting for a regular assistant professor position that is aligned with this acting position. We are very early in this process. We expect you to be an extremely viable candidate for this position. As you are aware candidates apply for these positions through a national search and we would encourage you to apply if this meets with your career goals.

¶5 In November 2016, Dr. Futran described Dr. Litvack as "starting quite well" and noted that she received "great compliments from faculty and staff about her participation and work" to the extent "we want to continue to foster this and commit to her future success." Dr. Futran described a "changing landscape" at HMC and the VA and suggested the best course would be to renew Dr. Litvack’s appointment for one more year until the situation had settled. That same month, Dr. Futran recommended to renew Dr. Litvack’s appointment for the 2017-2018 academic year.

¶6 From the outset, Dr. Litvack had concerns with the lack of representation of women in the Department and felt treated differently than in her previous professional experience. She testified:

that it was pretty normal, unfortunately, during faculty meetings for the very few women in the room to be cut off, interrupted, talked over. Men would raise their voices. Women were condescended to. I would say I learned very quickly to stay quiet, because it was an opportunity to be undermined by my male colleagues.

….

Trying to share my clinical experience and, again, advocate for the residents. And during this conversation, Jay Rubenstein turned to me and cut me off, talked over me, interrupted multiple times, said basically you don’t know what you’re talking about, little girl. And while he may not have said little girl out loud, the tone of voice was, you don’t know what you’re talking about, little girl.

Dr. Litvack also noted that scheduling and operating room time was an ongoing issue during her employment.

¶7 In March 2017, Dr. Greg Davis, the director of rhinology, notified Dr. Futran that he met with Dr. Litvack and learned of some of her frustrations:

I don’t think she’s feeling the support that most faculty would want. Kris is not giving her any block time at HMC (she has 2 four hour blocks per month) and her requests for equipment at the VA (i.e. an image guidance machine) continue to waffle, currently in the "no" category after they had initially said ye[s]. I think her frustration may be the bigger issue, not Zach’s.

Any leverage you could put on Kris would likely be helpful for her HMC progress. I am sure Mark is doing his best at the VA.²

Dr. Futran responded supporting Dr. Litvack:

Thanks for this and I have been very impressed with [Litvack] and her willingness and effort to be a great faculty member. Personally I would love to move and make her regular faculty similar to what we did with Randy, but you express some of the issues clearly. I have been trying to get everyone to see how good she is to win support and maybe we can discuss some strategies to move this along.

¶8 In November 2017, Dr. Futran recommended renewal of Dr. Litvack’s appointment for the 2018-2019 academic year.

¶9 In May 2018, Dr. Litvack began her practice at the ESC. Surgeries originating out of the ESC were performed at the UW Medical Center (UWMC). Through June 2018, however, Dr. Litvack claimed she primarily operated at HMC and her work at the ESC was minimal. Her recollection was she worked about 20 shifts at the ESC before her termination.

¶10 Dr. Litvack also coinitiated a diversity committee in the Department and presented on behalf of the committee at a faculty retreat in September 2018. She testified:

I had been working on research on gender gap and compensation at that time, and underrepresentation of women at editorial, editorial shifts in clinical—well, in otolaryngology journals in the background … I presented a presentation at our fall faculty meeting … and talked about the different elements of what we were concerned about.

….

I asked to present in the morning, but it was pushed to late in the day. I wanted Mark Whipple to present the work because I knew it would be "safe" coming from his mouth rather than mine. He was out of town that day. I did not feel safe at the time, and when discussed further with Dr. Futran during the November 14, 2018 meeting, his response made it clear that I had offended him and others.

That same month, in front of faculty, Dr. Litvack told the head of the academic promotions committee that the promotion crite- ria was opaque and created opportunities for bias and discrimination thus disadvantaging female physicians and other underrepresented groups in the profession.

¶11 In October 2018, ESC Manager Rekha Matken e-mailed the ESC supervisor, Kevin Kiemele, and Dr. Eugene Yang, the ESC medical director, about Dr. Litvack:

I think that things between her and the [medical assistants] are improving … she wants to see sinus patients, which is part of general ENT but sounds like the way it was presented to [the patient service specialist] is that it should be a number one priority … [Dr. Litvack] should get all the sinus patients first and then others.

Kiemele responded that while Dr. Litvack had input, "for her, it is first come first served from that list … while [Dr. Ian Humphrey]’s practice is intentionally focused on rhinology and sinus surgery, [Dr. Litvack]’s is focused on general ENT problems." Dr. Yang replied that he planned to meet with Dr. Futran soon about general otolaryngology at the ESC and questioned Dr. Litvack’s "interactions with staff and expectations for her practice at ESC. I think we need to set clear boundaries before things get more off track."

¶12 On October 22, 2018, Kiemele updated Dr. Futran on Dr. Litvack’s performance:

Lack of or inconsistent response to inquiries from nursing staff about patient care; staff are told she’ll address them on Friday when she is there. This is not consistent with the expectation for all providers at ESC (or uwmc for that matter) and appears to be a continuation of the approach that she is unavailable and cannot be contacted nor will respond when on VA time. It also is alienating the nurse who was assigned to work with Jamie on Fridays and throughout the week, because the actual Oto nurse does not work Fridays. We do not want to alienate Cindy (the RN) after her acceptance to take on this one piece of Oto.

Unsanctioned narrowing of ENT conditions managed in her practice, evidenced by requests for staff to move patients off her schedule and to not schedule patients with problems other than nasal or

...