FAIRHURST, C. J.
Public Utility District No. 1 of Kittitas County (district)
fired Kim Mikkelsen after 27 years of service. Mikkelsen sued
the district, alleging that, among other things, her
dismissal violated the Washington Law Against Discrimination
(WLAD), RCW 49.60.180. Specifically, Mikkelsen claims that
Charles Ward, the general manager, exhibited a bias against
women and older employees and that gender and age
discrimination were substantial factors in his decision to
fire her. She also argues that her dismissal violates the
progressive correction action policy the district distributed
to its employees.
we wish to clarify that under McDonnell Douglas Corp. v.
Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668
(1973), a plaintiff need not prove that she was replaced by a
member outside her protected class in order to establish a
prima facie case of discrimination. We affirm summary
judgment dismissal of Mikkelsen's age discrimination
claim because Mikkelsen presented almost no evidence of age
discrimination. But we reverse summary judgment dismissal of
Mikkelsen's gender discrimination claim because the facts
taken in the light most favorable to her create a material
issue of fact about whether gender discrimination was a
substantial factor in Ward's decision to fire her. The
corrective action policy is ambiguous and could plausibly be
read as establishing a for-cause standard for dismissal; we
therefore reverse and remand that issue.
FACTS AND PROCEDURAL HISTORY
began working for the district in 1984, when she was 30 years
old. Mikkelsen entered into an employment contract assigning
her duties as manager of accounting and finance for the
district. She worked for the district part time to
accommodate her consulting business, which involved advising
other utility businesses on financing, administration, and
accounting issues. The district has a three member board of
commissioners (Board) that directs operations. The Board
hires a general manager to oversee day-to-day operations. The
general manager works with a three member management team.
1984 to 2009, Mikkelsen and the district thrived under three
different general managers. In 2009, however, Mikkelsen and
three other employees became concerned with the actions of
then general manager Mark Kjelland. The employees sent a
letter to the Board expressing their concerns in compliance
with the district's whistleblower policy. Kjelland
resigned from his position, and the Board did not investigate
the complaints. Following Kjelland's resignation, the
Board asked Mikkelsen to serve as an interim general manager.
Mikkelsen accepted the position. The Board later asked
Mikkelsen to serve permanently as the general manager, but
she declined. The Board hired Ward as general manager in July
her time as interim general manager, Mikkelsen spearheaded
the adoption of a "Corrective Action Policy" for
the district. Clerk's Papers (CP) at 317. At the time,
the district had no such policy, which led to confusion and
uncertainty when employees required discipline. Mikkelsen
adapted a corrective action policy from Chelan County Public
Utility District. The district management team and the Board
held meetings discussing the proposed policy. The Board
ultimately adopted the policy. Mikkelsen used the policy
while interim general manager, issuing a verbal warning to a
line worker and documenting the warning in the employee's
personnel file. Ward also used the policy as general manager,
issuing a verbal warning to a different employee while
Mikkelsen assisted as a witness.
Ward began as general manager, Mikkelsen resumed her former
position as finance manager. Mikkelsen served on the
management team under Ward along with Matt Boast and Brian
Vosburgh. Mikkelsen was the only female member of the
and Ward worked well together at first, but their
relationship eventually deteriorated. According to Mikkelsen,
Ward exhibited a unilateral, '"my way or the
highway'" management style. CP at 334. Mikkelsen
alleged that Ward would make impulsive decisions without
gathering information and considering the various
consequences to the district. Mikkelsen also claimed that
Ward was sometimes belligerent with her and would undermine
her authority by calling her
'"untrustworthy"' during meetings with
other employees. Id.
believed that Ward's conduct was due in part to gender
bias. She testified that Ward "had a difficult time with
women in upper management." CP at 86. For example, Ward
often talked over Mikkelsen in meetings. Ward would also
regularly disregard Mikkelsen's input. The male members
of the management team did not experience this same
December 2010, Ward began excluding Mikkelsen from
communications in which she typically participated. Ward
discussed management issues over e-mail with the male members
of the management team, but he would not include Mikkelsen.
Ward also held some meetings without including Mikkelsen.
When Ward first began as general manager, he would have
Mikkelsen act as acting manager when he was away from the
office. But eventually, he stopped asking Mikkelsen to serve
as acting manager and asked only the male members of the
management team, Boast and Vosburgh.
testified that Ward would frequently refer to the women at
the office as the '"girls, "'
'"gals, "' or '"ladies,
"' but he never referred to the men as
'"guys, "' '"men, "' or
'"boys."' CP at 318. During union
negotiations regarding uniforms, Ward mentioned he would wear
any uniform paid for by the district as long as it was not
pink. Mikkelsen also claims that Ward would regularly
rearrange his genitals when he was around her or sitting in
front of her. Mikkelsen did not witness Ward engage in this
same behavior around male employees. Mikkelsen claims that
when she asked Vosburgh about Ward's behavior, Vosburgh
told her that Ward has "got a guy/girl thing with
you." CP at 87.
March 2011, Mikkelsen arranged a meeting with Ward to address
their communication breakdown and Ward's alleged gender
bias. Ward told Mikkelsen that he trusted her and that he
would improve his behavior. Mikkelsen took notes during the
meeting, and shortly afterward she noted that she "did
not feel that [Ward] took ownership of any gender bias or
going around me to avoid ideas that may not be in agreement
with his." CP at 335. According to Mikkelsen, Ward's
behavior did not improve after this meeting.
2011, communication between Mikkelsen and Ward had largely
ceased. John Hanson, the president of the Board, was
apparently aware of the issue and called Mikkelsen to see how
things were going. After Mikkelsen told Hanson about
Ward's behavior, Hanson asked her what the Board could
do. Mikkelsen suggested conducting an anonymous survey to see
if other employees shared her concerns. Hanson asked
Mikkelsen to create the survey. Although the survey does not
mention Ward by name, it contains many questions about the
"General Manager, " including a question that asked
whether "[t]he General Manager is biased on the basis of
gender." CP at 265.
e-mailed the survey to the Board, but she did not send the
survey to Ward. Mikkelsen admitted that Ward might interpret
this decision as "going behind his back." CP at 96.
Roger Sparks, a member of the Board, suggested no action
regarding the survey until Ward returned from vacation. When
Ward returned, Sparks notified him about the survey, and Ward
promptly fired Mikkelsen. Ward testified the survey proved
Mikkelsen was "out to get [him] and make the [district]
look bad." CP at 152. In August 2011, Ward invited
Mikkelsen into his office and informed her she was fired
because '"it's not working out.'" CP at
319. Ward read from a script and did not provide Mikkelsen
with any other reason for her termination. Mikkelsen asked
for a copy of her personnel file, which Ward provided.
Mikkelsen's personnel file contained no adverse history
of being reprimanded, admonished, or disciplined while
employed at the district.
wrote a memo to the Board explaining the termination. In the
memo, Ward accuses Mikkelsen of disrupting the workplace and
undermining his authority. He describes the early months as
positive, but claims that Mikkelsen became combative and
insubordinate as time went on. He claims that Mikkelsen
disrespected him regularly, disagreed with his management
choices, made unreasonable requests, and kept information
about billing from him.
response to the Employment Security Department's inquiry
after Mikkelsen applied for unemployment benefits, the
district explained Mikkelsen's termination by writing
that "Mikkelsen was an 'at will' employee and
was terminated without cause." CP at 402. The same form
provides a series of boxes indicating the reasons for the
discharge, including insubordination, dishonesty, and the
violation of company rules. The district checked none of
was 57 years old when Ward fired her. The district replaced
Mikkelsen with Genine Pratt, then 51 years old. In December
2011, the Board fired Ward for reasons not in the record.
November 8, 2011, Mikkelsen sued the district, the Board, and
Ward for wrongful discharge. She alleged that she was
terminated in violation of the district's corrective
action policy and in violation of WLAD. Specifically, she
claimed that age and gender discrimination were substantial
factors in her dismissal. She also alleged that the district
had negligently hired Ward and that her discharge amounted to
intentionally inflected emotional distress. The trial court
granted the defendants' motion for summary judgment and
dismissed all of Mikkelsen's claims with prejudice. The
Court of Appeals, Division Three, affirmed in a partially
published opinion. See Mikkelsen v. Pub. Util. Dist. No.
1 of Kittitas County, 195 Wn.App. 922, 380 P.3d 1260
(2016). Mikkelsen sought this court's review regarding
the discrimination issue and the corrective action policy
issue. We granted her petition for review. Mikkelsen v.
Pub. Util. Dist. No. 1 of Kittitas County, 187 Wn.2d
1009, 388 P.3d 495 (2017).
the replacement element required to establish a prima facie
case of discrimination under the McDonnell Douglas
Mikkelsen show a genuine issue of material fact as to whether
the discrimination was a substantial factor in her dismissal?
Mikkelsen show a genuine issue of material fact as to whether
the corrective action policy modified her at-will employment
Standard of review
review a trial court's grant of summary judgment de novo.
Camicia v. Howards. Wright Constr. Co., 179 Wn.2d
684, 693, 317 P.3d 987 (2014). Summary judgment is proper
only when there is no genuine issue as to any material fact
and the moving party is entitled to judgment as a matter of
law. CR 56(c). We consider all facts and reasonable
inferences in the light most favorable to the nonmoving
party- here, Mikkelsen. Young v. Key Pharm., Inc.,
112 Wn.2d 216, 226, 770 P.2d 182 (1989).
McDonnell Douglas framework
prohibits employers from discharging any employee on the
basis of a protected characteristic, including age and
gender. RCW 49.60.180(2). But "[d]irect, 'smoking
gun' evidence of discriminatory animus is rare, since
'[t]here will seldom be "eyewitness" testimony
as to the employer's mental processes.'"
Hill v. BCTI Income Fund-I,144 Wn.2d 172, 179, 23
P.3d 440 (2001) (second alteration in original) (quoting
U.S. Postal Serv. Bd. of Governors v. Aikens, 460
U.S. 711, 716, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983)).
Accordingly, we have repeatedly emphasized that plaintiffs
may rely on circumstantial, indirect, and inferential
evidence to establish discriminatory action. Id. at