Legal Memorandum: Prima Facie Case of Age Discrimination

Issue: How does a plaintiff make out a prima facie case of age discrimination under Washington law?

A prima facie case consists of four elements: (1) that the plaintiff was within the statutorily protected age group; (2) that he was qualified for an available promotion; (3) that he was not offered the position; and (4) that the promotion went to a younger individual.  Kuyper v. State, 79 Wash. App. 732, 735, 904 P.2d 793, 795 (Div. 1 1993); see Wash. Rev. Code §§ 49.44.090; 49.60.180.  If a defendant fails to cite the record in making conclusory arguments, it has failed to sustain its burden “to produce evidence to show that the employee was [adversely treated] for reasons other than his age.”  See Sellested v. Washington Mut. Sav. Bank, 69 Wash. App. 852, 851 P.2d 716, 721 (Div. 1 1993).

The employee can defeat summary judgment if he produces evidence that raises a genuine issue of material fact on the question of whether the reasons given are a mere pretext for what in fact is a discriminatory purpose.  Id.  To meet this burden no direct “smoking gun” evidence is required.  Id.  Circumstantial, indirect and inferential evidence is sufficient to defeat the motion on this basis.  Id.  Moreover, the employee need not show that the discriminatory motive was the only motive for the decision, nor even the determining motive.  Mackay v. Georn Custom Cabinetry, Inc., 127 Wash. 2d 302, 898 P.2d 284, 288 (1995).  All that is required to defeat summary judgment is evidence sufficient to create […]