Cornwell v. Microsoft Corp.

this opinion was filed for record

FILE at^ ^- Od on^^u

IN CLERKS OFFICE

•UHSE COURT. StKTE OF WASHINGTON

I o«7?_N0VJJJpi8 ,

SUSAN L^CARLSON

'^dA'AbAUA4 , C6- SUPREME COURT CLERK

IN THE SUPREME COURT OF THE STATE OF WASHINGTON

DAWN CORNWELL, No. 94846-1

Petitioner, En Banc

V.

Filed 2 9 2018

MICROSOFT CORPORATION,

A Delaware Corporation,

Respondent.

WIGGINS, J.—Dawn Cornwell asks us to reverse the grant of summary

judgment in her retaliation claim against her former employer, Microsoft Corporation.

At issue is whether she presented enough evidence to show that her supervisors had

sufficient knowledge that she had taken a protected action under the Washington Law

Against Discrimination (WLAD), RCW 49.60.030. Without establishing this

knowledge, Cornwell cannot demonstrate a potential causal link between the adverse

employment action taken against her and her protected activity. We hold that Cornwell

presented sufficient evidence to survive summary judgment on the issues of

knowledge and causation. The evidence tends to show that both of Cornwell's

Cornwell(Dawn) v. Microsoft Corp.

No. 94846-1

supervisors had actual knowledge that Cornwell had previously engaged in protected

activity before they subjected her to adverse employment action. As a result, we

reverse the Court of Appeals and remand the case to the trial court for further

proceedings.

FACTS AND PROCEDURAL HISTORY

I. Factual History

While working for Microsoft, Cornwell believed that her then-supervisor was

discriminating against her on the basis of sex, engaging in romantic favoritism, and

taking retaliatory action against her. She hired an attorney and settled the case with

Microsoft. The settlement was confidential, and Cornwell was no longer required to

work under her then-manager, Todd Parsons.

Seven years later, Cornwell's new manager, Mary Anne Blake, asked Cornwell

to mentor under another Microsoft employee. After learning that the employee

reported to Parsons, Cornwell told Blake that she could not mentor under the

employee. Blake asked Cornwell why, and Cornwell responded that it was because

she had filed a "lawsuit"^ against Microsoft and could not report to Parsons. Cornwell

also told Blake that the suit involved a review score issue and was confidential. Blake

sought more information about the lawsuit from human resources and her direct

supervisor, Nicole McKinley. Human resources did not have any information on file

about the lawsuit and promised to follow up on the issue.

^ Cornwell and Blake referred to CornweH's previous legal action against Microsoft as a

"lawsuit." We refer to that activity using the same terminology.

Cornwell(Dawn) v. Microsoft Corp.

No. 94846-1

Meanwhile, Blake told Cornwell that she had Inquired about the lawsuit with

human resources but that they did not have any further information. She also asked

Cornwell what would happen if her team needed to merge with Parsons' team.

Cornwell informed Blake that she was unable to discuss the lawsuit further because

of the confidentiality agreement and expressed dissatisfaction that Blake had

contacted human resources about the matter.

Shortly after Cornwell told her about the suit, Blake conducted a mandatory

performance review of Cornwell. During that year, Cornwell had received positive

reviews from her peers:

Dawn is [a] strong release manager able to pull all appropriate

stakeholders together, drive meetings forward and succinctly, keep

topics on point, and hold people to meeting deliverables.

. . . Dawn knows what me [sic] and my team need to be successful and

she provides those resources proactively in a timely manner. I never

have to wonder where a project stands when Dawn is leading the effort.

. . . She actively solicits feedback, is very receptive to any feedback

received and also follows up on it.

. . . Dawn partners extremely well with others and has established a

rapport and positive reputation with the many teams she works with.

Clerk's Papers (CP) at 163-64. During her previous years working for Microsoft,

Cornwell also had received good performance ratings and promotions. Despite this

positive employment history, Blake informed Cornwell that she was trending toward a

Cornwell(Dawn) v. Microsoft Corp.

No. 94846-1

rating of "4," the second lowest possible score. Cornwell told Blake that she disagreed

with that rating and was upset with this information. Blake followed up with human

resources and McKinley about CornweH's response. Human resources promised to

have Microsoft's legal department review Cornwell's performance rating.

Ultimately, Blake and McKinley recommended that Cornwell be rated "5," the

lowest possible score. Other managers disagreed with the rating, believing that

Cornwell was a higher performer. One manager did not have the "impression that Ms.

Blake was giving Ms. Cornwell a fair chance to succeed" and "didn't agree with her

[Blake's] assessment of [Cornwell's] performance." CP at 202. Another manager

involved in the performance rating process recalled being "very surprised as to how

[Cornwell] was evaluated" and that "several of the managers in the discussion

supported [Cornwell] as being a good performer, undeserving of a '5' rating definition."

CP at 212. Even Blake acknowledged that "in general Dawn received feedback that

she's a good team player. People found her personality to be enjoyable, and she

brought a positive and upbeat experience to teams." CP at 56.

Despite these disagreements, McKinley said that she and Blake would "take

the conversation 'off-line,'" meaning that Blake and McKinley would make the final

decision about Cornwell's performance rating without the involvement of the other

managers. CP at 212. Cornwell's final performance rating was assessed as a "5"—

the lowest possible score. Human resources told Blake to not inform Cornwell of her

review score "unless she asked about it." CP at 63. Cornwell was then laid off as part

of a larger reduction in force. Cornwell remembers being told that she would not

Cornwell(Dawn) v. Microsoft Corp.

No. 94846-1

receive a review score rating because of the layoff. As a result, Cornwell did not learn

about her low score until several years later when she was told that she could not be

rehired at Microsoft because her final performance rating was so poor.^

II. Procedural History

Based on these events, Cornwell filed suit against Microsoft, alleging retaliation

in violation of WLAD. Microsoft moved for summary judgment, arguing that Cornwell

had failed to present evidence showing a prima facie case of discrimination. The trial

court granted Microsoft's motion for summary judgment because the judge believed

that "there isn't evidence that Ms. Blake, who gave [Cornwell] the bad [review] score,

knew that there was a complaint under WLAD." Report of Proceedings at 40. As a

result, the judge believed that Cornwell had failed to show a causal link between the

adverse employment action taken against her and her prior lawsuit against Microsoft.

Cornwell appealed the trial court's ruling to the Court of Appeals. The Court of

Appeals affirmed the grant of summary judgment in an unpublished opinion. Cornwell

V. Microsoft Corp., No. 74919-6-1, slip op. at 1-2 (Wash. Ct. App. June 5, 2017)

(unpublished), https://www.courts.wa.gov/opinions/pdf/749196.pdf. The court agreed

that Cornwell had failed to present evidence to prove causation between her prior

lawsuit and the adverse employment actions taken against her. Id. at 9. But it declined

to address whether Cornwell's prior lawsuit was "protected activity" under WLAD. Id.

The court also declined to adopt Cornwell's proposed standards of review for the

claim. Id. at 13.

2 After she was terminated, Cornwell applied for 170 different positions at Microsoft.

Corn well(Dawn) v. Microsoft Corp.

No. 94846-1

Cornwell appealed the Court of Appeals' adverse decision to this court, and we

accepted review of all issues.

STANDARD OF REVIEW

"We review a trial court's grant of summary judgment de novo." Scrivener v.

Clark Coll., 181 Wn.2d 439, 444, 334 P.3d 541 (2014). "Summary judgment is

appropriate only when there is no genuine issue as to any material fact and the moving

party is entitled to judgment as a matter of law." Id. "[Bjecause of the difficulty of

proving a discriminatory motivation," id. at 445, "[sjummary judgment for an employer

is seldom appropriate" in the employment discrimination context, MIkkelsen v. Public

Utility District No. 1 of Kittltas County, 189 Wn.2d 516, 527, 404 P.3d 464 (2017). We

must also "consider all facts and make all reasonable factual inferences in the light

most favorable to the nonmoving party." Scrivener, 181 Wn.2d at 444.

ANALYSIS

We reverse the Court of Appeals. Cornwell has presented sufficient evidence

to make a prima facie case that Microsoft retaliated against her in violation of WLAD.

This evidence was adequate to create an issue of fact about whether there was a

causal link between her prior suit and Microsoft's decision to give her a poor review

rating and terminate her. Under either the "actual knowledge" standard or the "knew

or suspected" standard, Cornwell presented sufficient evidence of the employer

knowledge necessary to show causation. Ultimately, summary judgment was

Improper, and we remand the case to the trial court for further proceedings.

Cornwell(Dawn) v. Microsoft Corp.

No. 94846-1

I. Retaliation under WLAD

WI_AD proscribes discrimination in employment on the basis of sex, race,

sexuai orientation, and other protected characteristics. RCW 49.60.030. WLAD also

prohibits employers from retaliating against empioyees who oppose discriminatory

practices. RCW 49.60.210(1). To further these purposes, the legislature has directed

us to iiberaliy construe the provisions of WLAD. RCW 49.60.020.

When evaluating the merits of cases brought under WLAD, we employ the

McDonnell Douglas^ "evidentiary burden-shifting" framework. MIkkelsen, 189 Wn.2d

at 526. This framework involves three steps, but we are concerned with only the first

step in this case—the plaintiff's burden to establish a prima facie case of

discrimination. Scrivener, 181 Wn.2d at 446.'"Ordinarily the prima facie case must, in

the nature of things, be shown by circumstantial evidence, since the employer is not

apt to announce retaliation as his motive.'" Wllmot v. Kaiser Alum. & Chem. Corp.,

118 Wn.2d 46, 69, 821 P.2d 18 (1991)(quoting 1 Lex K. Larson, Unjust Dismissal

§ 6.05[5], at 6-51 (1988)); see also Currier v. Northland Servs., Inc., 182 Wn. App.

733, 746-47, 332 P.3d 1006 (2014)('"Because employers rarely will reveal they are

motivated by retaliation, plaintiffs ordinarily must resort to circumstantial evidence to

demonstrate retaliatory purpose.'"(internal quotation marks omitted)(quoting Estevez

V. Faculty Club of Univ. of Wash., 129 Wn. App. 774, 799, 120 P.3d 579 (2005))).

3 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 8. Ct. 1817, 36 L. Ed. 2d 668 (1973).

Cornwell(Dawn) v. Microsoft Corp.

No. 94846-1

To establish a prima facie case of retaliation, an employee must show three

things:(1)the employee took a statutorily protected action,(2)the employee suffered

an adverse employment action, and (3) a causal link between the employee's

protected activity and the adverse employment action. Currier, 182 Wn. App. at 742;

see also Wilmot, 118 Wn.2d at 68 (establishing the retaliation test in the worker's

compensation context).

Here, Microsoft alleges that Cornwell has failed to produce sufficient evidence

for the first and third elements of her prima facie case.'' Because the Court of Appeals

declined to address whether Cornwell's lawsuit against Microsoft was a protected

activity, and because the parties did not brief the issue to us, we do not reach that

issue on appeal.® We instead address only whether Cornwell presented sufficient

evidence to show a potential causal link between her performance rating score, her

termination, and her prior lawsuit.

II. Causation

Microsoft argues that Cornwell failed to present sufficient evidence to create an

issue of material fact that there is a causal link between her prior lawsuit and the

adverse employment action taken against her. We disagree for the following reasons.

The second element of the prima facie test is not at issue. It is undisputed that Cornwell

received a poor performance evaluation rating and was terminated. CP at 144-45. The poor

rating prevented Cornwell from being considered for future rehlrlng. CP at 219-20. This

undoubtedly qualifies as an adverse employment action. See Jin Zhu v. N. Cent. Educ. Serv.

Dist.—ESD 171, 189 Wn.2d 607, 619, 404 P.Sd 504 (2017) ('"An employment action Is

adverse If It Is harmful to the point that It would dissuade a reasonable employee from making

complaints of. . . retaliation.'" (Internal quotation marks omitted)(quoting Boyd v. State, 187

Wn. App. 1, 15, 349 P.Sd 864 (2015))).

5 Because the Issue Is not before us, for purposes of this appeal we assume that Cornwell's

prior legal action against Microsoft constituted protected activity under W1_AD.

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Cornwell(Dawn) v. Microsoft Corp.

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An employee proves causation "by showing that retaliation was a substantial

factor motivating the adverse employment decision." Allison v. Hous. Auth., 118

Wn.2d 79, 96, 821 P.2d 34 (1991). At the summary judgment stage, the plaintiff's

burden is one of production, not persuasion. Scrivener, 181 Wn.2d at 445. Thus, to

avoid summary judgment on causation, the employee must show only that a

reasonable jury could find that retaliation was a substantial factor in the adverse

employment decision. Id. Employees may rely on the following facts to show this: (1)

the employee took a protected action, (2) the employer had knowledge of the action,

and (3) the employee was subjected to an adverse employment action. Wllmot, 118

Wn.2d at 69.

At issue here is the quantum of employer knowledge about the employee's prior

protected activity. We have yet to address this question in a case. The parties

advocate for three different standards to evaluate employer knowledge. Microsoft

urges us to adopt the actual knowledge standard used by the Court of Appeals and

several federal courts, while Cornwell advocates for either a "knew or suspected"

standard or a "general corporate knowledge" standard used by other federal courts.

Here, under either the actual knowledge standard or the "knew or suspected"

standard, Cornwell presented enough evidence to survive summary judgment. We

decline to address the "general corporate knowledge" standard in this case.®

® Cornwell asks us to adopt the "general corporate knowledge" standard, which requires a

plaintiff to show that the employer generally had knowledge of the plaintiff's protected activity.

Kesslerv. Westchester County Dep't of Soc. Servs., 461 F.3d 199, 210(2d Cir. 2006). Under

this standard, the jury can still find retaliation in circumstances where the particular decision-

maker denies actual knowledge of the plaintiff's protected activities, "so long as . . . the jury

Cornwell(Dawn) v. Microsoft Corp.

No. 94846-1

a. Actual Knowledge

Cornwell has presented sufficient evidence to survive summary judgment under

the actual knowledge standard.

Both the Court of Appeals and several federal courts require that the employer

have actual knowledge of the employee's protected action in order to prove causation.

See, e.g., Mann v. King County, 194 Wn. App. 795, 813, 378 P.3d 203, review denied,

186 Wn.2d 1028, 385 P.3d 124 (2016)("Marin failed to show that anyone . . . knew

about his protected activity . . . , precluding his claim that employees . . . retaliated for

that activity. He identifies no evidence that supports his bare assertion that the entire

'chain of command' knew [about his protected activity]."); Raney v. VInson Guard

Serv., Inc., 120 F.3d 1192, 1197 (11th Cir. 1997)("In order to satisfy the 'causal link'

prong of a prima facie retaliation case, a plaintiff must, at a minimum, generally

establish that the defendant was actually aware of the protected expression at the

time the defendant took the adverse employment action.").^ Because retaliation is an

concludes that an agent is acting explicitly or implicit[ly] upon the orders of a superior who

has the requisite knowledge." Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir.

2000). While the standard may be useful in situations where many individuals act collectively

in a large company, it is not applicable here where CornweH's two supervisors had actual

knowledge of her prior lawsuit. Thus, we decline to address the "general corporate

knowledge" standard in this case.

^ See a/so MIchkowskI v. Snohomlsh County, No. 71328-1-1, slip op. at 14 (Wash. Ct. App.

Feb. 17, 2015)(unpublished), https://www.courts.wa.gov/opinions/pdf/713281.pdf ("Without

evidence of actual knowledge, [an employee] fails to establish the causal connection

necessary to make out a prima facie case of retaliatory discharge."); Stephens v. Erickson,

569 F.3d 779, 788 (7th Cir. 2009)("Clearly, a superior cannot retaliate against an employee

for a protected activity about which he has no knowledge."); Raad v. Fairbanks N. Star

Borough Sch. DIst., 323 F.3d 1185, 1197 (9th Cir. 2003)("In addition, the plaintiff must make

some showing sufficient for a reasonable trier of fact to infer that the defendant was aware

that the plaintiff had engaged in protected activity.").

10

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intentional act, an employer cannot retaliate against an employee for an action of

which the employer is unaware. Marin, 194 Wn. App. at 818("WI_AD does not prohibit

an employer's actions without evidence of a causal link between the action and a

plaintiffs protected activity.").

Microsoft argues that Blake and McKinley did not have actual knowledge of

Cornwell's suit because they did not know the specific nature of the lawsuit—i.e., that

it involved an allegation of discrimination in violation of WLAD. CP at 55, 144.

However, Microsoft's focus on the managers' knowledge about the substance of the

suit is misplaced. A decision-maker need not have actual knowledge about the legal

significance of a protected action. Instead, the decision-maker need have actual

knowledge only that the employee took the action in order to prove a causal

connection. ROW 49.60.210(1) ("It is an unfair practice for any employer . . . to

discharge, expel, or otherwise discriminate against any person because he or she has

opposed any practices forbidden by [WLAD]."); see aiso Wilmot, 118 Wn.2d at 69

(stating that an employee could prove causation by showing three facts, including

"that the employer had knowledge of the [action]"). "The proper inquiry is whether the

. . . evidence suggests a causai connection between the protected activity and the

subsequent adverse action sufficient to defeat summary judgment." Reich v. Hoy

Shoe Co., 32 F.3d 361, 367 (8th Cir. 1994). Cornwell has presented sufficient

evidence that Blake and McKinley knew Cornwell took prior legal action against

Microsoft.

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No. 94846-1

Here, Blake and McKinley actually knew about Cornwell's alleged protected

activity—the lawsuit. Regardless of whether they understood that the lawsuit was

protected activity under WLAD because of its substance, they still had knowledge that

the activity took place. It is undisputed that Blake and McKinley knew that Cornwell

had filed a lawsuit against Microsoft and her former supervisor. Blake learned that

Cornwell could not discuss the details of the lawsuit, but knew that the suit involved a

review score and male supervisor. Blake also knew that Cornwell "had a legal action

with Microsoft about a review score." CP at 55. Blake then followed up with human

resources about Cornwell's lawsuit with Microsoft. ®

Given Blake and McKinley's knowledge of the suit and the poor performance

rating and termination that followed shortly thereafter,® it is a reasonable inference

that these actions were in retaliation for Cornwell's previous lawsuit. See Raad, 323

F.3d at 1197 ('"That an employer's actions were caused by an employee's

engagement in protected activities may be inferred from proximity in time between the

protected action and the allegedly retaliatory employment decision.'" (internal

quotation marks omitted)(quoting Ray v. Henderson, 217 F.3d 1234, 1244 (9th Cir.

2000)); see also Wilmot, 118 Wn.2d at 69 (stating, "'[pjroximity in time between the

® Contrary to the dissent's criticisms, it is because of all of the facts here discussed, not merely

because CornweN's prior suit involved a male supervisor, that her claim survives summary

judgment. Dissent at 2. Further, also despite the dissent's assertions, we know that Cornweirs

prior suit related to sex discrimination; we do not make (or need to make) the "over-inclusive"

assumption that all suits by a female employee against a male supervisor involve sex

discrimination. Accordingly, the dissent's list of hypothetical claims that might have been brought

is surplusage. Id. at 2-5.

9 Cornwell told Blake about the lawsuit in late 2011. In July 2012, Blake and McKinley rated

Cornwell as a "5," and Cornwell was laid off in September 2012.

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Cornwell(Dawn) v. Microsoft Corp.

No. 94846-1

claim and the firing is a typical beginning point'" for proving retaliation (quoting 1

Larson, supra, § 6.05[5], at 6-51)).^° In addition, Cornwell had previously received

positive ratings and promotions during her employment at Microsoft. In the year that

she was terminated, "several" other managers disagreed with Blake's decision to rate

Cornwell poorly and thought that she should be rated higher based on her

performance. Again, McKinley and Blake knew about Cornwell's prior legal action,

and the circumstantial evidence supports the reasonable inference that Blake's

knowledge of Cornwell's lawsuit was a substantial factor in her poor rating and

eventual termination. That is all that is required to survive summary judgment. As a

result, Cornwell presented the necessary circumstantial evidence to show that her

lawsuit was a substantial motivating factor in her poor performance rating and

termination under the actual knowledge standard.

b. Knew or Suspected

Cornwell also asks us to adopt a "knew or suspected" standard for evaluating

retaliation claims. The "knew or suspected" standard incorporates the actual

knowledge standard and also encompasses cases in which the employer suspects

Microsoft argues that Cornwell lacks evidence of proximity because she filed her prior

lawsuit seven years before her poor evaluation and termination. However, this argument

focuses on the wrong event. Here, Blake and McKinley learned about CornweH's previous

lawsuit only months before Cornwell was terminated. To properly evaluate whether there is

sufficient circumstantial evidence of retaliation, we must focus on the proximity between when

Blake and McKinley learned of the lawsuit and the adverse employment actions that they

subsequently took. The time between those events is a few months—brief enough to give

rise to a reasonable inference of retaliatory motive.

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No. 94846-1

that an employee engaged in protected action.''^ It requires sufficient evidence to

reasonably infer "both that[a supervisor] either knew or suspected" that an employee

took a protected action "and that there was a causal connection between this

knowledge or suspicion and [the employee's] termination." Hernandez v. Spacelabs

Med. Inc., 343 F.3d 1107, 1113 (9th Cir. 2003). This standard applies, for example,

when a supervisor has actual knowledge that a complaint was made but has only a

suspicion regarding who made the complaint and subsequently takes an adverse

employment action based on that suspicion.

In Hernandez, the Ninth Circuit court held that a supervisor's suspicion that a

particular employee was the one who filed a sexual harassment report was enough to

survive summary judgment after the supervisor fired the suspected employee. Id. In

that case, an employee learned that his coworker was allegedly harassed by a

supervisor. Id. at 1110. Because his coworker was afraid to report the harassment,

the employee reported it to the human resources department. Id. Shortly thereafter,

the supervisor fired the employee, /c/. at 1111. After the employee sued for retaliation,

the supervisor denied that he knew which employee reported him for harassment and

stated that the employee's termination was for cause. Id. at 1113. The trial court

granted summary judgment in favor of the employer on this basis. Id.

"The "knew or suspected" standard has been applied by the United States Court of Appeals,

Ninth Circuit, as well as by other federal courts in the OSHA context. See, e.g., Hernandez v.

Spacelabs Med. Inc., 343 F.3d 1107 (9th Cir. 2003); Reich, 32 F.3d 361.

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No. 94846-1

The Ninth Circuit reversed summary judgment, holding that the employee had

presented "sufficient evidence from which a reasonable jury could infer both that [the

supervisor] either knew or suspected that [the employee] had reported the alleged

harassment to [human resources], and that there was a causal connection between

this knowledge or suspicion and [the employee's]termination." Id. The court reasoned

that "[i]t is frequently impossible for a plaintiff in [the employee's] position to discover

direct evidence contradicting someone's contention that he did not know something."

Id. at 1114. Thus, "[w]hat-did-he-know-and-when-did-he-know-it questions are often

difficult to answer, and for that reason are often inappropriate for resolution on

summary judgment. . . . But [the employee] has introduced substantial circumstantial

evidence. . . . He has produced sufficient evidence which, if credited by the jury, would

satisfy [the] burden of establishing a prima facie case." Id. at 1113-14. So long as an

employee produces evidence from which a reasonable jury could infer that retaliation

had taken place, this is sufficient to survive summary judgment, /c/. at 1114. And while,

a jury could believe the supervisor's version of events rather than the employee's, the

jury must be permitted to consider and weigh evidence. Id.

Here, Cornwell had to prove that Microsoft knew or suspected that she had

taken a prior iegal action. As previously discussed, Cornwell produced sufficient

evidence showing that both Blake and McKinley had actual knowledge that Cornwell

had filed a previous lawsuit against Microsoft. Thus, Cornwell easily meets the "knew

or suspected" standard to survive summary judgment on her retaliation claim.

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No. 94846-1

Although Cornwell satisfies the "knew or suspected" standard, the broader

question remains of whether we should adopt this standard. We adopt the standard

because it furthers WLAD's purpose to protect employees from retaliation.

The purpose behind the "knew or suspected" test is to protect employees from

retaliation to the fullest extent possible:

It seems clear to this Court that an employer that retaliates against

an employee because of the employer's suspicion or belief that the

employee filed a[ ]. . . complaint has as surely committed a violation of

[the statute] as an employer that fires an employee because the

employer knows that the employee filed a[ ] . . . complaint. Such

construction most definitely furthers the purposes of the Act generally

and the anti-retaliation provision specifically.

Reich, 32 F.3d at 368. "It is well recognized that WLAD . . . relies heavily on private

individuals for its enforcement. This reliance would be unrealistic, to say the least, 'if

this court does not provide them some measure of protection against retaliation.'" Jin

Zhu V. N. Gen. Educ. Sen/. Dist.—BSD 171, 189 Wn.2d 607, 622-23, 404 P.3d 504

(2017)(citation omitted)(quoting Allison, 118 Wn.2d at 94). Restricting the application

of WI-AD's antiretaliation provisions to instances of actual knowledge results in

inconsistent protection of employees:

It would be a strange rule, indeed, that would protect an employee

discharged because the employer actually knew he or she had engaged

in protected activity but would not protect an employee discharged

because the employer merely believed or suspected he or she had

engaged in protected activity.

Reich, 32 F.3d at 368. Employers are not limited to retaliation decisions based on

information they actually know to be true. Id. Instead,"common sense and experience

16

Cornwell(Dawn) v. Microsoft Corp.

No. 94846-1

establish that employers also make employment decisions on what they suspect or

believe to be true." Id.

Thus, construing WLAD "to protect employees from adverse employment

actions because they are suspected of having engaged in protected activity is

consistent with the general purposes of the Act and the specific purposes of the anti-

retaliation provisions." Id.(emphasis added); see also Brady v. Autozone Stores, Inc.,

188 Wn.2d 576, 583, 397 P.3d 120 (2017) (recognizing that because a policy

"ultimately provides greater protection for workers, it is more in tune with other

Washington case law addressing employee rights"). As a result, as long as an

employee presents evidence "suggest[ing] a causal connection between the protected

activity and the subsequent adverse action sufficient to defeat summary judgment,"

that employee has made a prima facie case of retaliation under WLAD. Reich, 32 F.3d

at 367.

Microsoft and amid curiae the Association of Washington Business and the

Chamber of Commerce of the United States of America contest adoption of the "knew

or suspected" standard. They argue that adopting the standard leads to strict liability

for employers, eliminates the causation element of a retaliation prima facie case, and

invites speculation into the summary judgment phase. Of these arguments, none is

persuasive.

The "knew or suspected" test does not lead to strict liability or eliminate the

requirement that a retaliation be intentional. Instead, the test eliminates the right of

employers to intentionally retaliate against employees that they suspect but do not

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Cornwell(Dawn) v. Microsoft Corp.

No. 94846-1

actually know to have taken protected action. An employee must still produce

sufficient evidence that his or her protected activity was a substantial factor in the

employer's decision to take adverse action against the employee. Allison, 118 Wn.2d

at 96.

In addition, the standard requires the production of evidence] mere speculation

will not suffice to defeat summary judgment. Grimwood v. Univ. of Puget Sound, Inc.,

110 Wn.2d 355, 359-60, 753 P.2d 517 (1988)("The 'facts' required by CR 56(e) to

defeat a summary judgment motion are evidentiary in nature. Ultimate facts or

conclusions are insufficient. Likewise, conclusory statements of fact will not suffice."

(citation omitted)). "It is frequently impossible for a plaintiff . . . to discover direct

evidence contradicting someone's contention that he did not know something."

Hernandez, 343 F.3d at 1114. Instead, as long as "[a] reasonable jury could infer from

[a plaintiff's] evidence" that the plaintiff's protected activity was a substantial factor in

the adverse employment decision, that plaintiff has satisfied his or her burden of

establishing a prima facie case of retaliation. Id.

For these reasons, we adopt the "knew or suspected" standard because it

furthers WLAD's purpose of protecting employees from retaliation.

CONCLUSION

In conclusion, we reverse the Court of Appeals. We adopt the "knew or

suspected" standard and hold that Cornwell presented sufficient evidence to create a

dispute of fact about whether there was a causal link between her poor performance

rating and termination and the previous lawsuit she filed against Microsoft. Both Blake

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No. 94846-1

and McKinley had actual knowledge that Cornwell filed the prior lawsuit against

Microsoft. Shortly after learning this, and over the objection of other managers, they

gave Cornwell the lowest possible review rating, and Cornwell was laid off. In light of

this evidence, the trial court erroneously granted summary judgment to Microsoft.

We reverse and remand the case to the trial court for further proceedings consistent

with this opinion.

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Cornwell(Dawn) v. Microsoft Corp.

No. 94846-1

WE CONCUR.

'7%U fiwA

7

20

Cornwell(Dawn) v. Microsoft Corp., No. 94846-1

(Gordon McCloud, J., dissenting)

No. 94846-1

GORDON McCLOUD, J. (dissenting)—I agree with the majority's

main conclusion that a plaintiff can show retaliatory discharge in violation of the

Washington Law Against Discrimination (WLAD), ROW 49.60.030, without

showing that the employer had actual knowledge of the plaintiffs prior protected

activity. A plaintiffs showing that the employer suspected that the plaintiff had

previously engaged in WLAD-protected activity is enough to establish the

causation requirement of a WLAD retaliatory discharge claim. Majority at 13-16.

But I disagree with the majority's application of that legal standard to

the facts of this case. The majority identifies nothing in the record showing that

Dawn Comwell's current supervisors knew or suspected that her prior lawsuit

involved the WLAD-prohibited activity of sex discrimination.

I say that because the majority holds that the following facts, alone,

suffice to satisfy the knowledge or suspicion element of WLAD causation:

(1) Comwell's supervisors knew that she had previously brought a lawsuit against

Cornwell(Dawn) v. Microsoft Corp., No. 94846-1

(Gordon McCIoud, J., dissenting)

Microsoft Corporation^,(2)those supervisors knew that the lawsuit had involved a

male supervisor, and (3)those supervisors knew that the lawsuit had involved a

review score. Id. at 2. Indeed, the majority accepts Microsoft's assertion that

Comwell's supervisors "did not know the specific nature of the lawsuit—i.e., that

it involved an allegation of discrimination in violation of WLAD." Id. at 11

(emphasis added). Thus, the majority ends up holding that because Comwell's

supervisor knew that her prior lawsuit had "involved a review score and male

supervisor," her present claim was entitled to survive Microsoft's motion for

summary judgment. Id. at 12(emphasis added).

I disagree. That analysis creates a standard that is both significantly

over-inclusive in certain respects and significantly under-inclusive in other respects.

The majority's analysis is over-inclusive because it assumes that a

female employee's lawsuit about a male supervisor and a review score could not

have alleged anything but sex discrimination. But that is incorrect. A female

employee could bring a lawsuit related to her review score and her male supervisor

that sounds in tort. Depending on the explanation that the male supervisor provided

for the review score that he gave his female employee,such a lawsuit might advance

' Like the majority, I use the parties' terminology. See majority at 2 n.1.

2

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claims for negligent infliction of emotional distress, intentional infliction of

emotional distress, or defamation.

Besides common law torts, such a lawsuit could allege any number of

statutory retaliation claims that do not implicate the WLAD. For example, a male

supervisor could give a female employee a poor review score because she submitted

a safety complaint, in violation of RCW 49.17.160. Or a male supervisor might

give a female employee a poor review score because she told her coworkers that

she thinks they should form a union, in violation of 29 U.S.C. § 158(a)(3). A male

supervisor could give a female employee a poor review score because he thought

that she was insufficiently committed to the company after she spent two weeks

serving on a jury trial—in violation of RCW 2.36.165(2). As yet another example,

a male supervisor might give a female employee a poor review score because she

blew the whistle under the Sarbanes-Oxley Act of 2002, an 18 U.S.C. § 1514A

violation. Or a male supervisor could give a female employee a poor review score

because she refused to disclose her login information to her personal social

networking account, access her personal social networking account in the

supervisor's presence, add a contact of the supervisor's selection to her personal

social networking account, or alter the view settings of her personal social

networking account—all in violation of RCW 49.44.200(1)(e). A female

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employee's refusal to take a 23andMe DNA (deoxyribonucleic acid) test, even

though everybody else in the department was doing so and thought that looking at

the results was great fun, might also generate a poor review score from a male

supervisor, violating 42 U.S.C. § 2000ff-l(b). A male supervisor might also give a

female employee a poor review score because she declined to support the

company's—or her supervisor's—^preferred candidate or political party,

implicating RCW 42.17A.495(2). A male supervisor could also give a female

employee a poor review score because he thought that her invocation of federal

bankruptcy protections in her personal life made her unreliable and untrustworthy,

in violation of 11 U.S.C. § 525(b). Annoyed at the increased paper work in his life,

a male supervisor could also give a female employee a poor review score because

she filed a workers' compensation claim—rurming afoul of RCW 51.48.025(1).

Likewise, a male supervisor might give a female employee a poor review score

because she took action to stop her employer from defrauding the federal

government, implicating 31 U.S.C. § 3730(h)(1).

All of these supervisory actions would be illegal—but none would

violate the WLAD. They would violate other statutes. For this reason, the

majority's conclusion that a female employee's review-score lawsuit against a male

employer must have been gender-based is impermissibly overbroad. It includes

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within the WLAD's scope even claims in which the employee fails to show that the

employer knew or suspected that the employee engaged in WLAD-^xotQoXQd

activity.

The majority justifies its analysis by asserting that the supervisors'

"knowledge about the substance of the suit is" immaterial. Majority at 11.

According to the majority, "the decision-maker need have actual knowledge only

that the employee took the action in order to prove a causal connection." Id. The

majority cites Wilmotv. Kaiser Aluminum and Chemical Corp. for that proposition.

Id.; see 118 Wn.2d 46, 69, 821 P.2d 18 (1991). But that is not what Wilmot held.

Wilmot involved claims for wrongful termination in violation of public policy. 118

Wn.2d at 51-52. The plaintiffs alleged that their employers fired them because they

had filed workers' compensation claims. Id. We held "that a plaintiff may establish

the required case by showing that the worker filed a workers' compensation claim,

that the employer had knowledge of the claim, and that the employee was

discharged." Id. at 69. But that"knowledge ofthe claim" language was a reference

to the fact that in Wilmot, the substance of the claims—^that is, that they were

workers' compensation claims—was well known to the employers when they fired

the employees. Id. at 51; Moran v. Wash. Fruit & Produce,60 Wn. App. 548, 550,

804 P.2d 1287(1991), rev'dby Wilmot, 118 Wn.2d at 79. Wilmot did not involve a

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mysterious prior claim that inspired "detective work," as this case does. Clerk's

Papers at 156. Moreover, Wilmot concluded that a plaintiff must show that at least

part of the employer's ''motivation for the discharge was the employee's exercise

of or intent to exercise the statutory rights." 118 Wn.2d at 68-69(emphasis added);

see also id. at 67 (requiring a showing of the employer's "'motivat[ion]'"(quoting

Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 232, 685 P.2d 1081 (1984))).

Here, contrary to the WLAD and contrary to Wilmot, the majority discards the

requirement that knowledge or suspicion of IfX^D-protected activity was a

substantial factor in the adverse employment action. Once again, the majority's

analysis is over-inclusive.

But the majority's approach is also under-inclusive in a different

respect. There is no doubt that the history ofgender discrimination in the workplace

is basically a history of gender discrimination against women. See generally Cal.

Fed. Sav. & Loan Ass'n v. Guerra, 479 U.S. 272, 286, 107 S. Ct. 683,93 L. Ed. 2d

613(1987)(purpose of antidiscrimination legislation at issue was to "provide relief

for working women and to end discrimination against pregnant workers"); Muller

V. Oregon, 208 U.S. 412, 28 S. Ct. 324, 52 L. Ed. 551 (1908) (detailing and

justifying history of limitations on women in the workplace). But there is also no

doubt that male supervisors can violate their male employees' rights to be free of

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sex discrimination in the workplace and so too can female supervisors vis-a-vis

female or male employees. See, e.g., Oncale v. Sundowner Offshore Servs., 523

U.S. 75, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998)(sex discrimination includes

sexual harassment by male supervisor against male employee); Nichols v. Azteca

Rest. Enters., Inc., 256 F.3d 864 (9th Cir. 2001)(male coworkers' type of verbal

abuse of male employee constituted sexual harassment). I fear that the majority's

standard fails to take account of those discrimination claims.

In sum, the majority has not identified any facts showing that the

supervisors in this case knew or suspected that Cornwell previously engaged in

WLAD-protected activity. For that reason, I respectfully dissent.

Cornwell(Dawn) v. Microsoft Corp., No. 94846-1

(Gordon McCloud, J., dissenting)