“Washington Supreme Court Expands Retaliation Claims with ‘Knew or Suspected’ Protected Activity Standard”
Monday, February 4, 2019
by: Brian Augenthaler and Jayne Freeman

Section: Winter 2019

Authors Bios

Brian Augenthaler and Jayne Freeman are lawyers at Keating, Bucklin & McCormack. Brian’s practice focuses on the defense of civil rights claims, primarily on the behalf of his governmental clients. Jayne defends and advises government agencies and employers on police liability and employment/personnel matters, including discipline, termination, disability accommodation, and allegations of discrimination, sexual harassment, criminal acts of employees, work place safety, and negligent hiring/supervision.
On November 29, 2018, in Cornwell v. Microsoft Corp., 430 P.3d 229 (Wash. 2018), the Washington Supreme Court adopted the broad “knew or suspected” standard for determining whether a causal link exits between an employee’s protected activity and an adverse employment action for purposes of establishing a retaliation claim under the Washington Law Against Discrimination (the “WLAD”)., RCW Ch. 49.60.
In Cornwell, the plaintiff filed a lawsuit on the belief that her then-supervisor was engaging in gender discrimination, romantic favoritism, and was taking retaliatory action against her.  The lawsuit settled. Seven years later, the plaintiff was asked by her new manager to mentor another employee. The plaintiff refused to mentor the employee because she had filed a lawsuit against Microsoft in the past and could not report to her former supervisor. Her new manager inquired with human resources for additional information. Human resources responded that it did not have any information about the lawsuit. The manager told the plaintiff that human resources did not have any further information and asked what would happen to the plaintiff’s team if it needed to merge with her former supervisor’s team. The plaintiff replied she was unable to discuss the lawsuit further due to a confidentiality clause and expressed dissatisfaction that her manager had gone to human resources about the issue.
The issue ... was whetherwhether there was a causal link between her prior suit against Microsoft and Microsoft’s decision

“Shortly after” the plaintiff told her manager about the lawsuit, the plaintiff was the subject of a  performance review. Despite receiving adulations from her peers (and some fellow managers) and her positive past work performance, it was decided the plaintiff would be given the lowest possible score on her review. Prior to the plaintiff receiving the score, she was laid off as part of a larger force reduction. Prior to her departure, the plaintiff was told she would not receive a review score due to the layoff. She did not learn of the low score until she reapplied for jobs at Microsoft several years later and was told she was ineligible for rehire because the score was so poor.

The plaintiff sued alleging retaliation in violation of the WLAD. The trial court granted summary judgment in Microsoft’s favor reasoning that the plaintiff lacked evidence showing her manager who gave her the poor evaluation knew the plaintiff had made a complaint under the WLAD, and, therefore, she could not establish causation. The Court of Appeals affirmed, and the Supreme Court accepted review.

The issue, according to the Supreme Court, was whether the plaintiff had presented adequate evidence to create an issue of fact about whether there was a causal link between her prior suit against Microsoft and Microsoft’s decision (under different managers) to give her a poor review rating and terminate her. In holding that the Plaintiff had presented adequate evidence, the Supreme Court adopted the plaintiff’s proposed standard for evaluating an employer’s knowledge about the prior protected activity, reasoning that the broader standard furthered the WLAD’s purpose of protecting employees from retaliation. Despite holding the plaintiff could meet the “actual knowledge” standard, the Supreme Court chose to go on to also rule that she could have survived summary judgment by merely showing her current manager “suspected” that she had engaged in protected conduct. This standard would encompass a supervisor who knew a complaint was made but only a suspicion of who the complaint was about and, at least in Cornwell, why the complaint was made. Under the facts the plaintiff presented, the court ruled she also “easily” met this new “knew or suspected” standard.

Also of concern for employers is footnote 6 in Cornwell decision, which indicates that, while the facts before them did not support it, the Supreme Court would be open to a “general corporate knowledge” standard, which would require the claimant to show only that the employer (not the specific manager making an employment decision) “generally had knowledge of the plaintiff’s protected activity.” Such a standard would effectively eliminate any WLAD knowledge requirement for claimants, leaving employers and individual supervisors highly vulnerable to such claims regardless of the steps they take to manage and protect the flow of information regarding an employee’s engagement in protected activity, or the advent of new management with every intention and reason to start with a  “clean slate.” regardless of past conflicts

Justice Gordon McCloud dissented, pointing out that nothing in the record established the Cornwell plaintiff’s current supervisors knew or suspected that her prior lawsuit involved sex discrimination (i.e., an alleged violation of the WLAD) as opposed to some other complaint that would not give rise to a retaliation claim under RCW Ch. 49.60. No other justice joined in the dissent.

Counsel for employers must be prepared to defend their clients on each of the three standards discussed in the Cornwell decision: actual knowledge, “knew or suspected,” and general corporate knowledge. Claimants will continue to advocate for the general corporate knowledge standard, and counsel would be wise to take the threat of the imposition of that standard seriously. Furthermore, Cornwell is not an excuse for defense counsel to ignore their obligation to make the plaintiff produce actual evidence for each element of his or her prima facie retaliation claim. Mere speculation should still not suffice to meet the “knew or suspected” standard: the plaintiff must still produce actual evidence that the manager or supervisor making the employment decision actually suspected the employee previously engaged in protected activity. It is not enough that the claimant suspects the supervisor suspected the employee previously engaged in protected activity simply because it occurred.