380 P.3d 1260
Wash. Ct. App.2016Background
- Kim Mikkelsen worked 27 years as part-time finance manager for Kittitas County PUD and served ~10 months as interim general manager; she returned to finance manager when Charles (Chuck) Ward was hired as GM in May 2010.
- Mikkelsen and Ward had escalating interpersonal and management-style conflicts from late 2010 through 2011; Mikkelsen complained to Ward and the board, drafted an anonymous employee survey, and told Commissioner Hanson about communication breakdowns.
- Ward perceived the survey/e‑mail as undermining his authority and, after consulting commissioners, terminated Mikkelsen on August 22, 2011, stating "it’s not working out." Mikkelsen was 57; her eventual replacement was a 51‑year‑old woman hired on contract and later as employee.
- Mikkelsen sued for sex and age discrimination (WLAD), breach of the PUD corrective action policy, negligent hiring/supervision, and intentional infliction of emotional distress. Defendants moved for summary judgment.
- The trial court granted summary judgment on all claims; the Court of Appeals (Division III) affirmed, publishing the discrimination analysis and filing the rest for public record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Whether replacement-by-outside-class is required for prima facie discriminatory discharge under McDonnell Douglas | Mikkelsen: Washington should follow federal majority and not require proof that replacement was outside protected class | PUD: Washington precedent requires showing replacement outside protected class (per earlier state cases) | Court: Adopts majority federal view — replacement outside protected class is not an essential prima facie element; court rejects rigid replacement requirement |
| 2. Whether Mikkelsen created triable issue of sex/age discrimination under McDonnell Douglas (pretext / substantial factor) | Mikkelsen: Evidence of differential treatment, derogatory remarks, and conduct (e.g., "ladies/girls," pink uniform quip, sexualized gestures) shows discrimination | PUD: Legitimate nondiscriminatory reason—irretrievable breakdown in working relationship and loss of trust; replacement by similar protected‑class member undermines discrimination inference | Court: Affirmed summary judgment — PUD articulated legitimate reason and Mikkelsen failed to show pretext or that discrimination was a substantial motivating factor |
| 3. Whether corrective action policy modified at‑will employment or created enforceable specific promises | Mikkelsen: Policy created expectations of progressive discipline; discharge without progressive steps breaches policy | PUD: Policy is discretionary and disclaims any right to continued employment or particular corrective action | Court: Policy language is discretionary and contains explicit disclaimers; no contract modification or enforceable specific promise — summary judgment affirmed |
| 4. Whether negligent hiring/supervision and intentional infliction of emotional distress claims survive summary judgment | Mikkelsen: PUD negligently hired/supervised Ward and his conduct caused severe emotional distress | PUD: Hiring used an executive search firm; no notice of wrongful conduct giving rise to negligent‑supervision claim; termination of at‑will employment is privileged and not outrageous | Court: No evidence of negligent hiring/supervision or outrageous conduct causing severe distress; claims dismissed |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) (establishes burden‑shifting framework for discriminatory‑treatment claims)
- Texas Dep’t of Comm. Affairs v. Burdine, 450 U.S. 248 (1981) (clarifies burdens under McDonnell Douglas)
- O’Connor v. Consolidated Coin Caterers Corp., 517 U.S. 308 (1996) (replacement by person outside protected class is not required prima facie element for ADEA claims)
- Reeves v. Sanderson Plumbing Prods., 530 U.S. 133 (2000) (plaintiff must produce sufficient evidence to show employer’s reason is pretextual; assessing summary judgment at step three)
- Grimwood v. Univ. of Puget Sound, 110 Wn.2d 355 (1988) (Washington discussion of McDonnell Douglas elements)
- Roberts v. Atlantic Richfield Co., 88 Wn.2d 887 (1977) (earlier Washington adoption of a replacement element for age claims)
- Hill v. BCTI Income Fund‑I, 144 Wn.2d 172 (2001) (Washington treatment of ADEA prima facie elements; discusses "significantly younger" modification)