Legal Memorandum: Proving an Employment Retaliation Case

Issue: What must a plaintiff in an employment retaliation case prove under Washington law?

To establish a prima facie claim, a plaintiff need only establish three elements: (1) that he engaged in statutorily protected opposition activity; (2) an adverse employment action was taken; and (3) there was a causal link between the first two elements.  See Wash. Rev. Code § 49.60.210(1); Delahunty v. Cahoon, 66 Wash. App. 829, 832 P.2d 1378, 1384 (Div. 3 1992).  The requisite “causal link” of the third element is only that the first element was a “substantial factor,” though not necessarily the determining factor in bringing about the adverse employment action.

In a retaliation case it is clear that it is not necessary to show that the practice or action opposed be demonstrably unlawful; all that is required is that the plaintiff’s opposition be based on a “reasonable belief” that the employer has engaged in an unlawful employment practice.  See EEOC v. Crown Zellerback Corp., 720 F.2d 1008, 1013 (9th Cir. 1983).

Two federal cases stand for the proposition that neither unfavorable performance evaluations nor reprimands by themselves constitute adverse employment action.  (See id. (citing Primes v. Reno, 190 F.3d 765 (6th Cir. 1999), and Sweeney v. West, 149 F.3d 550 (7th Cir. 1998).)

A constructive discharge, occurs when an employer deliberately makes an employee’s working conditions intolerable, thereby forcing the employee to resign.  Binkley v. Tacoma, 114 Wash. 2d 373, 388, 787 P.2d 1366 (1990).

Wrongful discharge, of course, […]