Reporting Discrimination Not Protected

Retaliation at hospital after discrimination whistleblowing

Hollenback v. Shriners Hospitals for Children, — P.3d —-, 2009 WL 1152042 (Wash.App. Div. 3 Mar 17, 2009) (NO. 26626-5-III)

In 1996, Cheryl Hollenback was hired as an at-will employee by Shriners Hospitals for Children in Spokane, Washington. At the time she was terminated in 2006, Ms. Hollenback held the position of Director of Patient Care Services, one of three top management positions at Shriners. Ms. Hollenback reported discrimination, harassment, and fear of retaliation to Shriners resulting from problems caused by Chief of Staff Dr. Ronny Ferguson’s romantic relationship with one of Ms. Hollenback’s subordinates. Ultimately, Dr. Ferguson resigned, and Shriners terminated Ms. Hollenback.

Ms. Hollenback filed an action alleging retaliation, failure to provide specific treatment in specific situations, breach of contract, and wrongful discharge in violation of public policy. The trial court granted summary judgment in favor of Shriners and dismissed all of Ms. Hollenback’s claims. Ms. Hollenback appeals. The appellate court reversed only the dismissal of the retaliation claim.

RCW 49.60.210 prohibits employers from terminating employees for opposing acts violating the Washington Law Against Discrimination (WLAD). Ms. Hollenback needed to establish that: (1) she participated in a statutorily protected activity; (2) an adverse employment action was taken against her; and (3) her activity and the employer’s adverse action were causally connected.

The conduct complained of need not actually be unlawful; the employee must establish only that he or she reasonably believed that the employer’s conduct was discriminatory.

If the plaintiff proves a prima facie case, the evidentiary burden shifts to the employer to produce admissible evidence of a legitimate, nonretaliatory reason for the discharge. If the employer meets its burden and produces some evidence of a nonretaliatory reason for the discharge, the presumption of retaliatory discharge established by the prima facie evidence is removed. The employee must then establish a genuine issue of material fact by showing that the employer’s stated reason for the adverse employment action was a pretext for a discriminatory or retaliatory purpose.

The plaintiff need not show that retaliation was the only or ‘but for’ cause of the adverse employment action, but he or she must establish that it was at least a substantial factor.” One factor supporting a retaliatory motive is a close proximity in time between the protected activity and the employment action.

So who will be reporting discrimination in the future?


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