GALVAN v. THE UNIVERSITY OF WA., 145 Wn. App. 1007 (2008)

No. 61151-8-I.The Court of Appeals of Washington, Division One.
June 9, 2008.

Appeal from a judgment of the Superior Court for King County, No. 05-2-29328-4, Charles W. Mertel, J., entered January 29, 2007.

Affirmed by unpublished opinion per Ellington, J., concurred in by Appelwick and Leach, JJ.

ELLINGTON, J.

Robert Galvan failed to establish a prima facie case of discrimination based on either disparate impact or disparate treatment. We affirm summary judgment of dismissal.

BACKGROUND
Robert Galvan, a Native American, worked for the University of Washington (University) as a contractor in the Center for Health Education and Research (CHER). In October 2001, the University hired him in a permanent position as tribal liaison in CHER’s Northwest AIDS Education and Training Center. He was responsible for training and assisting subcontractors who developed HIV response teams at tribal clinics and promoted AIDS treatment on reservations. Galvan was an at-will employee. His tenure was brief.

Galvan’s first performance review in July 2002 was mixed. Galvan’s supervisor, Sheila St. Thomas, [1] praised Galvan’s knowledge of tribal culture and tribal governments, his enthusiasm, his commitment, his marketing skills, and his teamwork. But she also said Galvan needed to improve his communication and listening skills, improve his ability to resolve conflicts and negotiate, improve his organizational skills, and “clarify the misperception of gender bias with his coworkers.”[2]

Thereafter, St. Thomas received “periodic complaints and comments from coworkers, subcontractors, and other professionals” about Galvan’s “communication styles and professionalism.”[3] One coworker asked to move offices because Galvan disrupted the workspace they shared. A subcontractor complained that Galvan inappropriately suggested she look for a different job. In mid-August, Galvan was disruptive during a training seminar, and a coworker reported that Galvan undermined another coworker during a related meeting. St. Thomas personally observed Galvan being unprofessional and disrespectful during meetings and telephone conferences. In addition, he was unprepared for a conference presentation.

The critical incident occurred in September 2002, when Galvan and some coworkers attended a conference in California. Several coworkers reported that Galvan was rude and abusive to Phyllis Scharr, a subcontractor. One witness stated he thought he “might have to jump up and pull Phyllis and Robert apart.”[4]

When questioned, Galvan’s response was to be defensive and to minimize. Concerned about his conduct and lack of judgment, St. Thomas met with Bernadette LaLonde, a professor and CHER director. They consulted with advisors in the University’s human resources department and with the health services department administrator, all of whom advised them to take Galvan’s conduct seriously.

On October 15, St. Thomas met with Galvan and reviewed his history of communication problems and disruptive behaviors. She told Galvan that management was considering dismissing him or implementing a disciplinary reduction in hours and job responsibilities. Galvan did not dispute the events, but believed that other factors should be acknowledged, such as the challenge of working with people experiencing personal difficulties. He wanted to use the University’s conflict resolution process to address the problems. St. Thomas declined, telling Galvan the conflict resolution process was not appropriate because “the issue was his behavior regardless of the reason for it.”[5]

While deciding what action to take, St. Thomas and LaLonde learned that Galvan had confronted a coworker about the California conference, suggesting that the coworker’s report might cause Galvan to lose his job. LaLonde’s concern about Galvan’s lack of judgment increased, and on October 21, she and St. Thomas recommended to Patricia Wahl, dean of the School of Public Health and Community Medicine, that Galvan be dismissed for repeated unprofessional conduct and poor judgment. They supported their recommendation with seven specific incidents occurring between August and October 17. Dean Wahl approved the recommendation and dismissed Galvan the next day, October 18, 2002.

In 2005, Galvan filed this action claiming he was terminated because of his race and gender. He argued both disparate impact and disparate treatment. The court granted summary judgment to the University on all claims.

Galvan appeals. The usual standard of review for summary judgment applies.[6]

ANALYSIS Disparate Impact
A claim of discrimination based on disparate impact under RCW 49.60.180 requires proof that a facially neutral employment practice falls more harshly on a protected class.[7] In Shannon v. Pay `N Save Corp., [8] our Supreme Court held that to be subject to a disparate impact challenge, an employment practice must include “objective features.” A policy that turns entirely on discretionary decisions is thus not subject to a disparate impact analysis.[9] The court reiterated this principle one year later in Oliver v. Pacific Northwest Bell Telephone Co., Inc.[10] Galvan has not identified an employment practice with objective features. Consequently, he has not established a prima facie case under Shannon and Oliver.

Galvan points out that Washington is out of sync with federal case law on this issue. In Watson v. Fort Worth Bank Trust, [11] decided after Shannon and Oliver, the United States Supreme Court interpreted Title VII, the federal counterpart of chapter 49.60 RCW, and expressly allowed disparate impact analysis based upon policies that rely solely on subjective criteria:

[D]isparate impact analysis is in principle no less applicable to subjective employment criteria than to objective or standardized tests, since, in either case, a facially neutral practice, adopted without discriminatory intent, may have effects that are indistinguishable from intentionally discriminatory practices.[12]

As Galvan also points out, both Shannon and Oliver relied on federal circuit cases rejected by the Watson court. Galvan urges us to apply the federal rule.

We are not in a position to reexamine Shannon and Oliver. That responsibility falls on our Supreme Court. But even under Watson, Galvan’s claim fails. The Watson court emphasized that plaintiffs must identify and isolate “the specific employment practices that are allegedly responsible” for the statistical disparities to establish their prima facie case of disparate impact.[13] Galvan has not identified with specificity any employment practice, whether objective or subjective.

Galvan attributes this omission to the fact that the University has not provided data comparing the involuntary termination rates for various ethnic groups, which he contends it is required by federal regulations to compile. The University disputes the scope of its recordkeeping obligations under the regulations and also disputes Galvan’s description of its discovery responses.

These controversies are irrelevant. Statistics showing a disparity among employee groups do not, absent the context of a policy or practice, establish a prima facie case of disparate treatment.[14] Galvan has identified no policy or practice.

In his reply brief, Galvan states that he is challenging the University’s reliance “on unbridled discretion of its managers to impose discipline based upon rumor and hearsay.”[15] This will not serve. First, Galvan did not raise this argument below or in his opening brief. Second, Galvan still does not identify a specific employment practice. Rather, he offers his characterization of the process he believes was applied to him. Third, the evidence does not support Galvan’s characterization. Before he was terminated, three administrators, including his direct supervisor, wrote a joint letter to the dean of the School of Public Health and Community Medicine documenting their reasons for recommending Galvan’s dismissal. They provided detailed descriptions of various incidents and explained why those incidents reflected poor conduct and unprofessional judgment. They also described the consequences of Galvan’s behavior:

His conduct and lack of professional judgment and behavior have resulted in repeated disruptions to the workplace and have limited our ability to provide a professional representation of the project to the public. Many days and sometimes weeks of work time . . . have been spent on trying to resolve interpersonal conflicts.[16]

Until approved by the dean, their recommendation for Galvan’s termination was not final.

This process does not demonstrate unbridled discretion.

Motion to Compel
Galvan also contends the court erred when it denied his motion to compel the University to produce records tracking the impact of tests and selection procedures on employment opportunities, which it is required to keep under 41 C.F.R. § 60-3.4. We review denial of a motion to compel for abuse of discretion.[17] A trial court abuses its discretion when its decision is manifestly unreasonable or based on untenable grounds.[18]

In his brief responding to the University’s summary judgment motion, Galvan included a request for an order compelling the University to produce the requested data. In support, he offered a declaration asserting the University failed to answer at least two interrogatories, and the deposition testimony of an assistant vice provost regarding the University’s recordkeeping.

The University contends it complied with Galvan’s discovery request. But because Galvan has not identified and challenged a specific employment practice, it does not matter whether the University provided adequate data comparing the separation rates of Native Americans and men to other groups. The court did not abuse its discretion when it denied the motion to compel.[19]

Disparate Treatment
Finally, Galvan contends he raised a question of fact for trial as to whether the University intentionally discriminated against him because of his race and/or gender.

The Washington Law Against Discrimination, chapter 49.60 RCW, prohibits an employer from discriminating against an employee “in compensation or in other terms or conditions of employment” because of the employee’s race or gender.[20] To evaluate summary judgment motions where the plaintiff lacks direct evidence of discriminatory animus, Washington courts have adopted the federal McDonnell Douglas burden-shifting protocol.[21] The plaintiff must demonstrate a prima facie case of unlawful discrimination, which creates a presumption that the employer discriminated.[22] In response, the employer must produce admissible evidence of a legitimate, nondiscriminatory reason for the adverse employment action.[23] If the employer meets this burden, the presumption is removed, and the burden of proof shifts back to the plaintiff, who must present evidence sufficient to disbelieve the employer’s explanation.[24]

To make out a prima facie case, a plaintiff must show that he was a member of a protected class and was treated less favorably in the terms or conditions of employment than a similarly-situated, non-protected employee.[25] In a sex discrimination action, the plaintiff must demonstrate that she or he was treated differently from persons of the opposite sex who are otherwise similarly situated, [26] and must establish specific and material facts to support each element of the prima facie case.[27]

Galvan cannot make out a prima facie case of discrimination based on race because he was replaced by another Native American. He argues this fact does not defeat his prima facie case because he is also Mexican. The only evidence in the record related to Galvan’s Mexican heritage is his declaration, prepared for this litigation, that his father was both Native American and Mexican. There is no indication that anyone else at CHER knew Galvan was part Mexican. Whenever Galvan raised cultural issues at meetings and with colleagues, he referenced his status as a Native American. In these circumstances, the relevant group is Native American, not Mexican.

Galvan’s prima facie case for gender discrimination also fails. Galvan argues that he was treated less favorably than female employees at CHER because they were allowed the opportunity to use the conflict resolution procedure while he was not, and he was punished more harshly than Sheila St. Thomas for a confrontational communication style. But Galvan ignores the fact that the relevant circumstances were vastly different, and fails to show that he and these women were similarly situated. He thus does not make out a prima facie case.

Affirmed.