CERTIFICATION FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF WASHINGTON IN JIN ZHU, Plaintiff,
NORTH CENTRAL EDUCATIONAL SERVICE DISTRICT-ESD 171, Defendant.
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).
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
AND PROCEDURAL BACKGROUND
Jin Zhu v. Waterville School District No. 209
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.
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.
Jin Zhu v. North Central Educational Service District -
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.
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.
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.
"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.
Zhu entitled to attorney fees on review?
"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.)
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. 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
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