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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for speaking down to others and refusing to accept feedback. There is no indication

that Dr. Davis received any criticism.

The trial court recognized that Dr. Litvack produced evidence that other doctors

were treated differently:

Dr. Litvack has produced some evidence that Dr. Davis exhibited some of
the same behaviors as Dr. Litvack—communication issues and delinquent
encounter closures—and that he was not accepting or welcoming of
feedback. Dr. Litvack also produced some evidence that Drs. Weaver and
Houlton had documentation issues similar to, but not the same as, Dr.

-19-
For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.

No. 84592-6-I/20

Litvack’s. Dr. Litvack produce evidence that Drs. Barber and Weymuller
did not make their productivity targets.

But the court determined this evidence insufficient because the comparators were

permanent professors and Dr. Litvack was an acting professor subject to yearly

renewal:

It is undisputed, however, that these employees were in permanent, not
acting, positions. Dr. Davis was an associate professor, Dr. Houlton was
an assistant professor, and Dr. Weaver was a professor. Dr. Barber was
an assistant professor and is female. Dr. Weymuller was a full professor.

Because Dr. Litvack was an acting professor subject to yearly renewal,
her proposed comparables are not employees in the same circumstances.

The trial court erred in dismissing Dr. Litvack’s comparators. The test for

comparators is whether they are “similarly situated” to the plaintiff and “doing

substantially the same work” as the plaintiff. Johnson, 80 Wn. App. at 227; Ellington, 18

Wn. App. at 54. In determining pretext comparators, it is not dispositive that acting