Wash. Court of Appeals published opinion — 845926.pdf

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No. 84592-6-I/24

the same decision maker, the adverse action is not based on any attribute that was

known at the time of hiring. We agree.

Our Supreme Court recognized the same actor inference in Hill, 144 Wn.2d at

189-90. 9 In Hill, the employee alleged wrongful discharge due to age, where the same

decision makers had authority over both the employee’s hiring and their firing less than

a year later. 144 Wn.2d at 189-90. Our Supreme Court stated that for the plaintiff to

prevail under such circumstances, the “evidence must answer an obvious question: if

the employer is opposed to employing persons with a certain attribute, why would the

employer have hired such a person in the first place?” Hill, 144 Wn.2d at 189-90. The

record in Hill failed to suggest an answer. 144 Wn.2d at 190.

Here, the trial court determined that certain evidence was irrelevant because Dr.

Litvack’s gender was the same from hiring to firing. Dr. Litvack does not dispute that Dr.

Futran supported her at first and during most of her employment. But unlike the plaintiff

in Hill, Dr. Litvack explains that discrimination occurred not only because she is a

woman, but because she is a woman who spoke out on gender discrimination to the

alleged offense of Dr. Futran and others. 10 Dr. Litvack’s gender may be static, but her

conduct, namely her assertiveness and outspoken opposition to gender bias in the

Department, during her employment was not. And Dr. Futran considered her conduct,

such as her unwillingness to apologize, in his decision-making. Dr. Litvack argues that

9 Our Supreme Court gave the following rationale for the inference: “[u]nless the strength of this