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Certification from United States District Court for Eastern District of Washington in Zhu v. North Central Educational Service District-ESD 171

Supreme Court of Washington, En Banc

November 9, 2017

CERTIFICATION FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON IN JIN ZHU, Plaintiff,
v.
NORTH CENTRAL EDUCATIONAL SERVICE DISTRICT-ESD 171, Defendant.

          YU, J.

         Washington law prohibits employers from discriminating against job applicants and employees on the basis of protected characteristics such as race, sex, or national origin. Washington law also prohibits employers from engaging in retaliatory discrimination against employees who previously opposed the employer's discriminatory practices. The question presented in this case is whether prospective employers are nevertheless free to engage in retaliatory discrimination in the hiring process. In the precise words of the district court, "Does RCW 49.60.210(1) create a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer?" Order Certifying Local Law Questions to Wash. Supreme Ct, Jin Zhu v. N. Cent. Educ. Serv. Dist. -ESD 171, No. 2:15-CV-00183-JLQ, at 7 (E.D. Wash., Feb. 28, 2017) (Order Certifying Question).

         The answer is yes. In accordance with the plain language of the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW, retaliatory discrimination against job applicants by prospective employers is prohibited by RCW 49.60.210(1). Therefore, plaintiff Jin Zhu's claim that defendant North Central Educational Service District - ESD 171 (ESD 171) refused to hire him because of his opposition to his former employer's racial discrimination stated a valid cause of action.[1]

         FACTUAL AND PROCEDURAL BACKGROUND

         A. Jin Zhu v. Waterville School District No. 209

         Waterville School District No. 209 hired Zhu as a math teacher in 2006. In 2010, Waterville issued a notice of probable cause for Zhu's discharge, which he appealed. The hearing officer determined that there was not probable cause for discharge and restored Zhu to his position. Jin Zhu v. Waterville Sch. Dist. No. 209, No. CV-10-0333-LRS, 2012 WL 220273, at *2 (E.D. Wash. Jan. 25, 2012) (court order). Zhu then sued Waterville in federal district court, alleging that Waterville had subjected him to racially motivated disparate treatment, a hostile work environment, and retaliation in violation of 42 U.S.C. §§ 1983, 2000e-2, and 2000e-3. Id. at*l.

         Zhu is a United States citizen who emigrated from China in 2004. His complaint alleged that he filed multiple grievances with Waterville regarding hostile and abusive actions by his students. For instance,

Zhu described being called a chink, a communist, and gay by his students; in 2008 Zhu was the subject of a cartoon that depicted a border patrol shooting someone described as a communist chink; and in May, 2009 a student scrawled a hateful racial attack against Zhu on a bathroom wall, saying he hoped Zhu's new house would burn down.

Id. at *3 n.2. Zhu alleged that instead of attempting to remedy the situation, Waterville took retaliatory actions against him for filing the grievances, including attempting to discharge him without probable cause. After the district court denied Waterville's motion for summary judgment dismissal, the parties settled and Zhu resigned from Waterville in March 2012.

         B. Jin Zhu v. North Central Educational Service District - ESD 171

         Three months after resigning from Waterville, Zhu applied for a position as a "Math-Science Specialist" with ESD 171. Pretrial order, Zhu v. N. Cent. Educ. Serv. Dist-ESD 171, No. 2:15-CV-00183-JLQ, at 1 (E.D. Wash. Sept. 8, 2016). ESD 171 is an educational service district that "[p]rovide[s] cooperative and informational services to local school districts, " including Waterville, RCW 28A.310.010(1), and it is undisputed that members of ESD 171 's hiring committee were aware of Zhu's lawsuit against Waterville. Zhu was one of three candidates interviewed, but ESD 171 ultimately hired a different candidate, whom Zhu claims was far less qualified for the position. Zhu sued ESD 171 in federal district court, alleging that it refused to hire him in retaliation for his prior lawsuit against Waterville, thereby violating WLAD's antiretaliation statute, RCW 49.60.210(1), as well as other state and federal laws.

         ESD 171 moved for summary judgment dismissal, asserting that Zhu's WLAD antiretaliation claim should fail for the same reasons that his federal antiretaliation claim should fail. However, the district court correctly noted that WLAD is not identical to federal law, analyzed the WLAD antiretaliation claim on its merits, and denied summary judgment. ESD 171 moved to reconsider, arguing that Zhu's WLAD antiretaliation claim must fail because RCW 49.60.210(1) does not prohibit retaliatory discrimination against job applicants by prospective employers. The court denied reconsideration. Following a jury trial, Zhu prevailed on his WLAD antiretaliation claim and was awarded damages.

         ESD 171 then filed a motion for judgment as a matter of law or for a new trial, challenging the sufficiency of the evidence and the jury instructions, and asking in the alternative that the district court certify to us the question of RCW 49.60.210(1)'s scope. Despite its earlier ruling denying reconsideration, the district court granted the motion in part and certified the following question regarding the scope of RCW 49.60.210(1) to this court: "Does RCW 49.60.210(1) create a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer?" Order Certifying Question at 7. The court otherwise denied the motion, ruling that

[i]f the Washington Supreme Court finds RCW 49.60.210(1) provides a cause of action to a prospective employee against a prospective employer not involved in the underlying discrimination claim the jury verdict in this case will be upheld. If the Washington Supreme Court finds RCW 49.60.210(1) does not provide such a cause of action, the jury verdict in this case will be vacated.

Id.

         ISSUES

         A. "Does RCW 49.60.210(1) create a cause of action for job applicants who claim a prospective employer refused to hire them in retaliation for prior opposition to discrimination against a different employer?" Id.

         B. Is Zhu entitled to attorney fees on review?

         ANALYSIS

         WLAD "create[s] a private cause of action against any employer engaging in an 'unfair practice.'" Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 489, 325 P.3d 193 (2014) (emphasis omitted) (quoting Griffin v. Eller, 130 Wn.2d 58, 63, 922 P.2d 788 (1996)). RCW 49.60.210(1) provides that it is an actionable unfair practice for "any employer ... to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter." (Emphasis added.)

         By rendering a verdict in Zhu's favor, the jury has already decided as a question of fact that ESD 171 refused to hire Zhu because of his opposition to Waterville's discriminatory practices.[2] See Jin Zhu v. N. Centr. Educ. Serv. Dist. -ESD 171, No. 2:15-CV-00183-JLQ, 2016 WL 7428204, at *12 (E.D. Wash. Dec. 23, 2016) (court order). The certified question asks only whether, as a matter of law, the cause of action created by RCW 49.60.210(1) prohibits retaliatory discrimination in hiring, as well as in existing employment relationships.

         In accordance with the plain language of RCW 49.60.210(1) and WLAD as a whole, the answer is yes. And because the federal district court already ruled that if we answer in the affirmative, then "the jury verdict in this case will be upheld, " Zhu is entitled to attorney fees on review in ...


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