Simmons v. State

STEPHEN C. SIMMONS, Appellant, v. STATE OF WASHINGTON, Respondent.

No. 72836-9-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

June 1, 2015

UNPUBLISHED OPINION

VERELLEN, A.C.J. — Stephen Simmons appeals the summary judgment dismissing his disparate treatment claims. Simmons contends that he was not given regular performance reviews and that an individual supervisor applied a more rigorous pay raise standard to him than to others. But Simmons does not establish that his lack of regular performance reviews resulted in any adverse employment consequence, he does not establish "comparators" required for a disparate treatment pay raise claim, and he does not rebut the Department of Social and Health Services's (DSHS) legitimate, nondiscriminatory reasons for his pay raises with evidence of pretext. Under the well-defined standards for employment discrimination claims, Simmons fails to establish a genuine issue of material fact warranting a trial. We affirm.

FACTS

Simmons, an African American, works within DSHS's Enterprise Risk Management Office. He holds a Washington Management Service (WMS) position as a risk management administrator, managing tort lawsuits filed against DSHS. Each WMSposition has a salary range (a "band"). Simmons's position is in Band 2 with a salary range of $61,200 to $81,600. His current salary is $76,932.

Bernie Friedman supervised Simmons from 2001 to 2006. Friedman did not give Simmons any performance reviews. Simmons received a 5 percent raise in January 2002 and another raise in 2004. The size of the 2004 raise is unclear from the record.

Liz Dunbar supervised Simmons in 2006. Dunbar gave Simmons his first performance review and a "lump sum payment" of $12,000.¹ Simmons could not recall, and the record is unclear, if he also received a raise after his performance review with Dunbar.

Joe Olson supervised Simmons in 2007. Olson did not give Simmons a performance review, and Simmons did not receive a raise.

Kevin Krueger supervised Simmons from April 2008 to October 2010. Krueger gave Simmons a performance review in 2008 and recommended a 3 percent raise for Simmons. Krueger testified that Simmons "was the only one during that period [in 2008] that I was advocating for a salary increase" because other employees, such as Kristal Wiitala and Kevin Doty, had previously received raises.² Krueger reviewed Simmons's pay history and learned that he had not had a raise since 2006. Krueger recommended a 3 percent raise that would "bring him up" even with Kristal Wiitala and Kevin Doty.³ When asked if there was any other reason he did not give Simmons a 5 percent raise, Krueger testified:

Because I found his performance, while it was excellent, I think he was -- there wasn't anything extraordinary. And I looked at the criteria that we went over in the other document, and it looked like he was doing his job. I asked him, "Was there anything extraordinary or different or something unusual that was different?"

. . . .

I was looking for Steven [sic] to help me answer that question, what it was, if there was some unique case or anything, and he wouldn't provide me the information.⁴

Simmons rejected the raise and refused to sign the performance review form. Krueger did not process the raise. Krueger has not been able to locate a copy of the 2008 performance review. The trial court determined it would "draw an adverse inference" against DSHS for not producing Simmons's 2008 performance evaluation.⁵ To the extent the trial court was prepared to draw an adverse inference from the missing document, we draw the "adverse inference" that Simmons's 2008 performance review was positive.

In October 2010, DSHS implemented the 3 percent raise retroactive to 2008.

Regulations and administrative policies provide for regular performance reviews of DSHS permanent employees. But performance reviews do "not always happen[,] for a variety of reasons."⁶ Krueger did not give Simmons a performance review in 2009 or 2010. Some, but not all, of the Enterprise Risk Management Office's employees received regular performance reviews.

A salary freeze on WMS employees prohibited Krueger from recommending a raise for any WMS employee reporting to him from November 2008 to June 2013except for Simmons, who received 3 percent in 2008, and Sherri Jenkins, who received 5 percent in 2013. Jenkins's 5 percent raise in 2013 was due to her increased job duties and a redesignation to Band 2. Nadine Selene-Hait received a 7.5 percent retention raise, over Krueger's objection, in 2011.

Simmons contends that several DSHS employees are comparators.

Stephen Dotson, a licensed attorney, worked as Discovery Manager. He negotiated his starting salary at $78,000, at the top of the Band 2 range, based upon his prior litigation and public disclosure experience. Wiitala gave Dotson a performance review in 2009, and Krueger gave him performance reviews in 2010 and 2011.

Kevin Doty is the Internal Control and Insurance Manager, a Band 2 position. Doty received four performance reviews.

Mark Greene worked as the Safety and Claims Program Manager. Greene negotiated his starting salary of $78,000, at the top of the Band 2 range. He "was very highly regarded," "had a strong background in safety," and "interviewed extremely well."⁷ Greene did not receive a performance review because he was hired in 2008 and retired in 2009.

Sherri Jenkins is the Public Disclosure Manager. She received a 5 percent raise in May 2013 when DSHS redesignated her position to Band 2.

Nadine Selene-Hait is the Operations Manager, a Band 2 position. Krueger gave her three performance reviews. She received a 7.5 percent retention raise in 2011.

Kristal Wiitala, a licensed attorney, is the Public Records/Privacy Officer. DSHS redesignated her position to Band 3 in 2004. She received 5 percent raises andapparently received performance reviews in 2002, 2004, and 2006 (pre-Krueger). Krueger apparently gave her two performance reviews sometime after 2007.

Simmons filed an internal racial discrimination complaint against DSHS and Kevin Krueger. DSHS investigated Simmons's allegations, but did not find any violation of DSHS's nondiscrimination policies. DSHS later assigned Tracy Guerin to supervise Simmons. Guerin gave Simmons an excellent rating in a 2012 performance review.

Simmons sued DSHS for employment discrimination. He asserted multiple racial discrimination claims under chapter 49.60 RCW. The superior court granted DSHS partial summary judgment. Per Simmons's request, the superior court nonsuited the only claim remaining after granting DSHS partial summary judgment.

Simmons appeals.

ANALYSIS

We review a partial summary judgment order de novo, viewing the facts and all reasonable inferences in the light most favorable to the nonmoving party.⁸ Summary judgment is proper if no genuine issues of material fact exist.⁹ "A material fact is one that affects the outcome of the litigation."¹⁰ "We may affirm the superior court's summary judgment decision on any ground supported by the record."¹¹

RCW 49.60.180 prohibits employment discrimination based on race. An employer may not "discriminate against any person in compensation or in other terms or conditions of employment" based on a protected trait, such as race.¹² At trial, the employee "must ultimately prove that [the protected trait] was a 'substantial factor' in an employer's adverse employment action."¹³ A "substantial factor" means that the protected trait "was a significant motivating factor bringing about the employer's decision," not that the protected trait was the only factor in the decision.¹⁴

"[S]ummary judgment to an employer is seldom appropriate" in employment discrimination cases.¹⁵ To overcome summary judgment, a plaintiff need only show "that a reasonable jury could find that the plaintiff's protected trait was a substantial factor motivating the employer's adverse actions."¹⁶ "This is a burden of production, not persuasion, and may be proved through direct or circumstantial evidence."¹⁷

We apply the McDonnell Douglas Corp. v. Green¹⁸ burden shifting framework to employment discrimination cases based on circumstantial evidence.¹⁹ Because Washington discrimination laws substantially parallel Title VII of the Civil Rights Act of 1964, we may look to federal law for guidance.²⁰ Under the McDonnell Douglasframework, the burden of persuasion, at all times, remains with the employee; only the burden of production shifts.²¹

The employee must first establish a prima facie case of discrimination.²² The "prima facie burden is 'not onerous.'"²³ A minimal evidentiary showing is enough and "'does not even need to rise to the level of a preponderance of the evidence.'"²⁴ But the employee "must do more than express an opinion or make conclusory statements."²⁵ The employee must establish "specific and material facts to support each element of his or her prima facie case."²⁶ If the employee fails to establish a prima facie case, the employer is entitled to summary judgment.

Once the employee establishes a prima facie case, the burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the alleged adverse employment action.²⁷ If the employer provides a legitimate, nondiscriminatory reason, the burden shifts back to the employee to produce evidence that the employer'sarticulated reason for the employment action was a pretext.²⁸ But if the employee fails to meet this burden, the employer is entitled to summary judgment.²⁹

"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."³⁰ "An employee may satisfy the pretext prong by offering sufficient evidence to create a genuine issue of material fact either (1) that the [employer's] reason is pretextual or (2) that although the employer's stated reason is legitimate, discrimination nevertheless was a substantial factor motivating the...