Appeal from Superior Court, Spokane (91-2-01075-1) County; Honorable Marcus Kelly, Judge. Judgment Date: 11-20-92.
Guy, J., Durham, C.j., Dolliver, Smith, Johnson, Alexander, Talmadge, J.j., Pekelis, J.p.t., Concurring. Madsen, J. (dissenting by separate opinion). Sanders, J. (did not participate).
The opinion of the court was delivered by: Guy
GUY, J.--The Plaintiff in this sex discrimination case is a professional golfer who was hired under a contract with the City of Spokane to operate one of the City's golf courses. The issue is whether an independent contractor who is discriminated against in the negotiation and performance of a contract for services has a cause of action for discrimination under RCW 49.60, Washington's law against discrimination. We hold that under the broad protections of RCW 49.60.030, an independent contractor may bring an action for discrimination in the making or performance of a contract for personal services where the alleged discrimination is based on sex, race, creed, color, national origin or disability.
In December 1986 Plaintiff Patti Marquis entered into a three-year contract with the City of Spokane to serve as the golf professional at Downriver Golf Course, one of three golf courses owned by the City. The City had solicited proposals from qualified golf professionals for the position and Ms. Marquis was personally recruited for the job by the City's Director of Parks and Recreation. A final contract was not published as a "take it or leave it" offer by the City; instead, golf professionals were invited to submit proposals based on a sample contract provided by the City. Selection of the finalists was made by reviewing the proposed contracts. Ms. Marquis was selected as the City golf committee's first choice to negotiate a final contract.
Under the terms of the contract negotiated between Ms. Marquis and the City, Ms. Marquis had responsibility for operating the golf course, practice range, pro shop, cafe, food services, and clubhouse. Although the terms of the contract provided only for extensions of two additional one-year terms, Ms. Marquis was told during the original contract negotiations that she could expect a long career at Downriver Golf Course and that her contract would be continually renewed so long as she performed her job. The previous golf pro at Downriver had worked as the manager at that golf course for 31 years.
Ms. Marquis' compensation under the contract was primarily based on various percentages of receipts collected from the numerous activities involved in the operation of the golf course. While she was serving as golf professional at Downriver, Ms. Marquis learned that the compensation she was receiving under her contract was different from the compensation of the golf professionals--both male--who operated the other city-owned golf courses. According to a financial planner who submitted an affidavit in support of Ms. Marquis' position, a review of the contracts of the City's three golf professionals and the various revenues generated by each golf course from 1987 to 1989 showed that Ms. Marquis was paid less than the male golf professionals each year--averaging about $12,000 less than one of the men and approximately $37,000 less than the other. When she expressed concern regarding the discrepancies in income, the City's golf manager asked why she was worried about it as she was married to a doctor. A member of the City's golf committee responded, "If you can't take the heat, get out of the kitchen."
Ms. Marquis also alleges she was subjected to discriminatory treatment during the course of her tenure at Downriver Golf Course. For example, she claims she was criticized for hiring a woman, rather than a man, as her assistant. She alleges she received weekly telephone calls from the City's golf manager, criticizing her for minor violations of her contract. For example, she was criticized or reprimanded for allowing a dog to be in the parking lot; for having family members help out, without pay, when a regular employee did not show up for work; for not having two employees behind the counter in the pro shop at all times; and for spending too much time in her office. Ms. Marquis alleges that substantially similar conduct by the male golf pros was not criticized and the male golf pros were not similarly reprimanded by the City. She also alleges she was reprimanded for incidents which were demonstrated not to have occurred. For example, the City sent Ms. Marquis a letter of reprimand accusing her and her assistant golf pro of giving a golfer permission to take liquor onto the golf course. The letter was made a part of her file, even though Ms. Marquis, the assistant pro, and the golfer denied that this incident had ever occurred.
Just prior to December 31, 1989, when Ms. Marquis' contract was to expire, negotiations for a new contract began. Revenues at Downriver had increased by 34 percent during the contract period, and Ms. Marquis appeared to have the support of the golfers who used the course. She says she therefore expected to be offered a longer contract during the negotiations. However, based on the reprimands in her file, the City refused to unconditionally renew her contract and, instead, offered a one-year probationary contract. Ms. Marquis states she was not able to accept the reasons for the new contract's restrictions and that she could not continue working under the same conditions. She therefore terminated the negotiations and her contract expired on December 31, 1989.
She then filed this action alleging sex discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. sec. 2000e, and in violation of this state's law against discrimination, RCW 49.60. *fn1 Named as defendants in the suit were Frank McCoy, the City's Director of Parks and Recreation, Michael D. Stone, the Spokane Golf and Community Development Manager, and the City of Spokane (referred to herein collectively as the City).
The City filed two motions for summary judgment. In the first, the City argued that the Title VII claim should be dismissed on the ground that Ms. Marquis, as an independent contractor, lacked standing to bring an action under the federal law and, further, that she failed to exhaust administrative remedies that are a prerequisite to bringing a Title VII action. The City also argued that Ms. Marquis had failed to present evidence supporting each element of her discrimination claims. The trial court dismissed the Title VII claims but found Ms. Marquis had established a genuine issue of fact with respect to the existence of sex discrimination under state law and denied the motion with respect to the state claim.
The City's second motion for summary judgment requested dismissal of discrimination claims brought pursuant to RCW 49.60.030(1). The City argued that Washington's law against discrimination does not prohibit discrimination against independent contractors. The trial court agreed and dismissed the discrimination claims.
The Court of Appeals reversed. Marquis v. City of Spokane, 76 Wash. App. 853, 888 P.2d 753 (1995). With respect to Ms. Marquis' appeal, the Court of Appeals held that the prohibition against discrimination in the workplace contained in RCW 49.60.030 was not limited to the employer/employee relationship and could reasonably be interpreted to incorporate other rights recognized by federal law, including contract rights protected by former 42 U.S.C. sec. 1981 (prohibiting discrimination in the making of contracts on the basis of race). *fn2 Thus, the court held that RCW 49.60.030 creates a cause of action for independent contractors based on sex discrimination in the making of contracts for personal services. The court also held that Ms. Marquis had presented evidence constituting a prima facie case. Because the City countered with evidence that the contract differences were based on legitimate nondiscriminatory reasons, a genuine issue of fact was created, making summary judgment improper.
The City petitioned for review and this court agreed to review the issues presented by both parties.
1. Does an independent contractor who claims she was treated unfairly in the negotiation and performance of a contract for personal services have a cause of action for sex discrimination under RCW 49.60.030?
2. Did the Plaintiff present sufficient evidence to establish a prima facie case of discrimination?
This is an appeal from an order granting summary judgment. Review is therefore de novo and the court engages in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wash. 2d 434, 437, 656 P.2d 1030 (1982); Hiatt v. Walker Chevrolet Co., 120 Wash. 2d 57, 65, 837 P.2d 618 (1992). That inquiry is whether there is a genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. Fahn v. Cowlitz County, 93 Wash. 2d 368, 373, 610 P.2d 857 (1980). We consider the evidence and the reasonable inferences therefrom in a light most favorable to the nonmoving party. Schaaf v. Highfield, 127 Wash. 2d 17, 21, 896 P.2d 665 (1995). If we determine there is a dispute as to any material fact, then summary judgment is improper. Hiatt, 120 Wash. 2d at 65. However, where reasonable minds could reach but one Conclusion from the admissible facts in evidence, summary judgment should be granted. CR 56(c); LaMon v. Butler, 112 Wash. 2d 193, 199, 770 P.2d 1027, cert. denied, 493 U.S. 814, 107 L. Ed. 2d 29, 110 S. Ct. 61 (1989).
In order for a plaintiff alleging discrimination in the workplace to overcome a motion for summary judgment, the worker must do more than express an opinion or make conclusory statements. Grimwood v. University of Puget Sound, Inc., 110 Wash. 2d 355, 359-60, 753 P.2d 517 (1988). The worker must establish specific and material facts to support each element of his or her prima facie case. Hiatt, 120 Wash. 2d at 66-67. The Law Against Discrimination Washington's law against discrimination was enacted in 1949 as an employment discrimination law. Laws of 1949, ch. 183. The law prohibited discrimination in employment on the basis of race, creed, color or national origin. The scope of protection under the law was expanded in 1957, when the law was amended to prohibit discrimination not only in employment but also in places of public resort, accommodation or amusement, and in publicly assisted housing because of race, creed, color or national origin. Laws of 1957, ch. 37. The 1957 amendment provided that the right to be free from discrimination included but was not limited to the rights listed in the chapter. Laws of 1957, ch. 37, sec. 3. In 1973 the law was amended to specifically prohibit discrimination in credit and insurance transactions. That same year sex, marital status, age, and disability were added as unlawful bases for discrimination. Laws of 1973, ch. 141; Laws of 1973, 1st Ex. Sess., ch. 214. Although the law has been amended since that time, it remains substantially the same as it was following the 1973 amendments.
The law against discrimination, RCW 49.60, includes general provisions recognizing that the right to be free from discrimination because of race, creed, color, national origin, sex, marital status, age or disability is a civil right. RCW 49.60.010, .030(1). *fn3 The law also establishes the Human Rights Commission and gives that agency "powers with respect to elimination and prevention of discrimination" in employment and in other specified areas, RCW 49.60.010, as well as the power to investigate and rule on complaints alleging unfair practices as defined in the statute. RCW 49.60.120(4). *fn4
The provision of the statute which is involved in this appeal is the following:
(1) The right to be free from discrimination because of race, creed, color, national origin, sex, or the presence of any sensory, mental, or physical disability is recognized as and declared to be a civil right. This right shall include, but not be limited to:
(a) The right to obtain and hold employment without discrimination;
(2) Any person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained, or both, together with the cost of suit including reasonable attorneys' fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 . . . .
RCW 49.60.030(1) (part), (2). *fn5 (Emphasis added.)
The City argues that RCW 49.60.030 should be construed so as to limit causes of action for discriminatory treatment to violations of the particular rights listed in the statute. In the City's view the statute should be read to prohibit discrimination in "employment" and would apply to protect "employees," but not "independent contractors" hired to perform services.
Rules of statutory contruction provide that a statute which is clear on its face is not subject to judicial interpretation. In re Marriage of Kovacs, 121 Wash. 2d 795, 804, 854 P.2d 629 (1993).
The Court of Appeals found that the "statutory list [contained in RCW 49.60.030], by its own terms, is not exclusive" and can be interpreted to incorporate other rights recognized in state or federal law. Marquis, 76 Wash. App. at 857. See also MacLean v. First Northwest Indus. of Am., Inc., 96 Wash. 2d 338, 350, 635 P.2d 683 (1981) (Utter, J., Dissenting) (the word "include" as used in RCW 49.60.030 is not intended to limit the scope of the statute but rather is used only to illustrate possible applications).
We agree that RCW 49.60.030(1) is unambiguous to the extent that it sets forth a nonexclusive list of rights. However, the statute is unclear to the extent that it makes a broad statement of ...