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Nachiem v. State6/27/2005
vidence, since the employer is not apt to announce retaliation as his motive.'' Wilmot v. Kaiser Aluminum and Chem. Corp., 118 Wn.2d 46, 69, 821 P.2d 18 (1991) (quoting 1 Lex Larson, Unjust Dismissal sec. 6.05{5}, at 6-51 (1988)). In recognition of the difficulty of proving motive, our courts have allowed an employee to establish the causation element of the prima facie case merely by showing that she participated in a protected activity, that the employer had knowledge of the activity, and that the employee suffered an adverse employment action. See Wilmot, 118 Wn.2d at 69; Anica v. Wal-Mart Stores, Inc., 120 Wn. App. 481, 491, 84 P.3d 1231 (2004).
As discussed earlier, Nachiem has shown that she participated in a protected activity, the grievances. Adverse employment actions, as defined by the statute governing workplace reprisals, includes letters of reprimand or unsatisfactory performance evaluations, demotion, denial or employment, or a supervisor encouraging co-workers to behave in a hostile manner towards the whistleblower. RCW 70.124.100(3)(b). This expansive definition encompasses various actions taken against Nachiem.
The defendants contend she has not shown they had knowledge of her protected activity because her complaints to the Nursing Quality Care Commission and the Department hotline were anonymous. And they say that her demotion occurred so many months after her original complaint to Fircrest's management that no one would believe the two were causally linked.
While the complaint Nachiem submitted to the Commission was anonymous, arguably it was an outgrowth of the original complaint that she filed with Fircrest management. Nachiem submitted affidavits attesting that Anderson had told others that he believed that Nachiem was the source of the complaint. There is an inference, albeit not strongly supported, that Fircrest management and Dr. Singh in particular were aware that Nachiem was an instigator of the anonymous complaints. From that inference, a prima facie case might emerge, based on the theory that the demotion in September 2002 was not for Nachiem's alleged misconduct on June 18, 2002, but actually to retaliate for her most recent complaint against Anderson through the hotline in February, 2002.
But an employee's prima facie case of retaliation establishes only a rebuttable presumption of discrimination. The evidentiary burden then shifts to the employer to produce admissible evidence of a plausible reason for the adverse action. Hudon v. West Valley School District 208, 123 Wn. App. 116, 130-31, 97 P.3d 39 (2004). This is a burden of production, not of persuasion. Although Nachiem puts a different blush on the various disciplinary actions taken against her, she does not dispute the essential facts of most of the allegations on which the discipline was based. A reasonable person could only conclude that the Department met its burden of producing a plausible reason for its actions by demonstrating that each adverse employment action was the result of specific misconduct by Nachiem. Production of a plausible reason by the employer shifts the burden back to the plaintiff to persuade the factfinder that the reason is pretextual.
Summary judgment should not be granted when 'there are conflicting reasons or contrary evidence sufficient to create competing inferences.' Hudon, 123 Wn. App. at 131. An employee can demonstrate that the reasons given by the employer are not worthy of belief with evidence that: (1) the reasons have no basis in fact, or (2) even if based in fact, the employer was not motivated by these reasons, or (3) the reasons are insufficient to motivate an adverse employment decision. Chen v. State, 86 Wn. App. 183, 190, 93
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