404 P.3d 464
Wash.2017Background
- Kim Mikkelsen, a 27‑year employee and former interim general manager at Public Utility District No. 1 of Kittitas County, was terminated by General Manager Charles Ward in August 2011.
- Mikkelsen alleges Ward exhibited gender and age bias (e.g., excluding her from communications, talking over her, using diminutive terms for women, making sexualized gestures) and that those biases were substantial factors in her firing; she was 57 at termination and replaced by a 51‑year‑old.
- Mikkelsen had drafted and helped adopt the district’s Corrective Action Policy while interim GM; the policy contains both discretionary language and provisions emphasizing fair treatment and procedural steps for discharge.
- Ward told Mikkelsen she was fired because “it’s not working out” and sent a memo alleging insubordination and disruptive behavior; the district reported she was an at‑will employee and checked no misconduct boxes in unemployment paperwork.
- Mikkelsen sued for wrongful discharge, WLAD age and sex discrimination, breach of the corrective action policy (implied contract), negligent hiring, and IIED; the trial court granted summary judgment for defendants and the Court of Appeals affirmed in part; the Washington Supreme Court granted review.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether McDonnell Douglas prima facie requires proof that the plaintiff was replaced by someone outside the protected class | Mikkelsen: replacement element unnecessary; she satisfies McDonnell Douglas without showing replacement outside class | District: historic Washington precedent included replacement element (but parties agreed issue not outcome‑determinative here) | Replacement element not required to establish prima facie case under McDonnell Douglas framework |
| Whether gender discrimination was a substantial factor in Mikkelsen’s termination under WLAD | Mikkelsen: circumstantial evidence (exclusion, denigration, gendered language, sexualized conduct, differential treatment) supports inference that gender motivated firing | District: asserted legitimate nondiscriminatory reason—dysfunctional relationship, insubordination, disruptive behavior | Reversed summary judgment; genuine issue of material fact exists as to gender discrimination |
| Whether age discrimination was a substantial factor in termination under WLAD | Mikkelsen: alleged comments about "old" employees and fixation on an older coworker show age bias | District: virtually no evidence connecting age to termination; proffered nondiscriminatory reasons | Affirmed summary judgment for defendant on age claim—Mikkelsen presented almost no evidence of age discrimination |
| Whether the Corrective Action Policy modified at‑will status (implied contract for for‑cause termination) | Mikkelsen: policy’s mandatory and procedural language ("must," review requirements, documented steps) creates reasonable expectation of fair/for‑cause discipline | District: policy contains disclaimers and discretionary language reserving right to terminate without specific formula | Policy ambiguous; factual issue whether it promised specific treatment and thus modified at‑will status — reversed and remanded |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (prima facie framework for discrimination cases)
- O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308 (rejecting replacement‑outside‑class as necessary element in ADEA prima facie case)
- Grimwood v. Univ. of Puget Sound, 110 Wn.2d 355 (Washington adoption of McDonnell Douglas; elements not rigid)
- Korslund v. DynCorp Tri‑Cities Servs., Inc., 156 Wn.2d 168 (elements for altering at‑will status via handbook/policy)
- Scrivener v. Clark Coll., 181 Wn.2d 439 (burden shifting and proof that discrimination was a substantial factor under WLAD)