Wash. Court of Appeals published opinion — 845926.pdf

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contradict the employer’s assertion of poor performance does not give rise to a

reasonable inference of discrimination.” Chen v. State, 86 Wn. App. 183, 191, 937 P.2d

612 (1997).

Dr. Litvack asserts that the trial court erred in several respects that she claims

contributed to its erroneous dismissal of her claim. We address each in turn.

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No. 84592-6-I/18

Relying on Scrivener, Dr. Litvack argues that the trial court applied the wrong

legal standard in concluding that her evidence that UW’s reasons were pretextual had

“no basis in fact.” This is error, Dr. Litvack contends, because under Scrivener, a

plaintiff “may also satisfy the pretext prong by presenting sufficient evidence that

discrimination nonetheless was a substantial factor motivating the employer.” We

disagree that the trial court applied the wrong legal standard.

The trial court explicitly stated the two-part pretext prong as outlined by

Scrivener: that the defendant’s evidence was pretextual; or that although employer’s

stated reason was legitimate, discrimination was as substantial motivating factor. The

trial court then addressed Dr. Litvack’s evidence of pretext, and whether discrimination

was a substantially motivating factor. Contrary to Dr. Litvack’s assertion that the court

only considered whether she showed UW’s reasons had no basis in fact, the court

evaluated prong three as outlined by Scrivener.

Dr. Litvack argues the trial court erred in rejecting the circumstantial evidence of

disparate treatment of similarly situated employees. We agree.

“One test for pretext is whether (1) an employee outside the protected class (2)