Wash. Court of Appeals published opinion — 845926.pdf

Citation: Wash. Court of Appeals published opinion — 845926.pdf
Jurisdiction: Washington (state)
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Original Source: https://www.courts.wa.gov/opinions/pdf/845926.pdf ↗

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committed acts of comparable seriousness (3) but was not demoted or similarly

disciplined.” Johnson v. Dep’t of Soc. & Health Servs., 80 Wn. App. 212, 227, 907 P.2d

1223 (1996); Scrivener, 181 Wn.2d at 448 (employer’s reason “was not a motivating

factor in employment decisions for other employees in the same circumstances”). As

the Supreme Court explained in McDonnell Douglas as to racial discrimination:

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No. 84592-6-I/19

Especially relevant to such a showing would be evidence that white
employees involved in acts against petitioner of comparable seriousness
to the ‘stall-in’ were nevertheless retained or rehired. Petitioner may
justifiably refuse to rehire one who was engaged in unlawful, disruptive
acts against it, but only if this criterion is applied alike to members of all
races.

411 U.S. at 804. The appropriate comparators are employees that are “similarly

situated” to the plaintiff and doing “substantially the same work” as the plaintiff.

Johnson, 80 Wn. App. at 227; Ellington v. Spokane Mortg. Co., 19 Wn. App. 48, 54, 573

P.2d 389 (1978).

Dr. Litvack presented several comparators to support her discrimination claim.

For example, in the three months before her termination, Dr. Litvack’s male colleague at

the ESC, Dr. Jeffrey Houlton, had far greater overall lag-time in completing his charts.

His open notes reached 50, compared to Dr. Litvack’s 9 during this same period. While

Dr. Futran asked Dr. Houlton to “please pay attention to this,” he received no adverse

employment action.

Similarly, Dr. Davis’s lag-time was slightly less than Dr. Litvack’s but his open

notes were greater at 30, compared to Dr. Litvack’s 9. Dr. Davis was also widely known