Wash. Court of Appeals published opinion — 857088.pdf

Citation: Wash. Court of Appeals published opinion — 857088.pdf
Jurisdiction: Washington (state)
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Original Source: https://www.courts.wa.gov/opinions/pdf/857088.pdf ↗

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7 While we are unaware of any Washington case that has applied the direct evidence test to a
retaliation claim, federal courts have done so. See e.g., Walton v. Harker, 33 F.4th 165, 171 (2022)
(“Employees may prove that their employer retaliated against them for engaging in protected
activity through one of two ways: (1) by direct evidence of retaliatory animus; or (2) through the
McDonnell Douglas burden shifting-framework.”) (internal citation omitted); Naguib v. Trimark Hotel
Corp., 903 F.3d 806, 811 (8th Cir. 2018) (“[R]etaliation claims may be proved by either direct
evidence or under the McDonnell Douglas burden-shifting framework); Sylvester v. SOS Children’s
Villages Ill., Inc., 453 F.3d 900, 902 (7th Cir. 2006) (distinguishing between the “indirect” method of
proving retaliation under the McDonnell Douglas test and the “direct” method of proving retaliation
using direct evidence). Although these federal cases are nonbinding, we are “free to adopt those
theories and rationale which best further the purposes and mandates” of the WLAD. Kumar v. Gate
Gourmet Inc., 180 Wn.2d 481, 491, 325 P.3d 193 (2014).

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For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 85708-8-I

Lastly, where, as here, this issue is decided on summary judgment, “[t]he

moving party bears the initial burden ‘to prove by uncontroverted facts that there

is no genuine issue of material fact.’” Welch v. Brand Insulations, Inc., 27 Wn.

App. 2d 110, 115, 531 P.3d 265 (2023) (quoting Jacobsen v. State, 89 Wn.2d 104,

108, 569 P.2d 1152 (1977)). If the moving party meets this burden, then the

burden shifts to the nonmoving party to produce “‘specific facts evidencing a

genuine issue of material fact for trial.’” Id. (quoting Schaaf v. Highfield, 127 Wn.2d