Supreme Court Cieri< 

IN THE SUPREME COURT OF THE STATE OF WASHINGTON 

PATRICIA BLACKBURN, DAVID 

CARPENTER, JACOB DAU, 

DENNIS F ANT, BONIFACIO 

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FORNILLOS, AKANELE IMO, ) 

JOSE LOPEZ, RALPH PETERSON, ) 

andMATTHEWSTALEY, ) 

Appellants, 

v. 

STATE OF WASHINGTON 

DEPARTMENT OF SOCIAL AND 

HEALTH SERVICES and 

WESTERN STATE HOSPITAL, 

Respondents. 

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No. 91494-0 

ENBANC 

Filed JUl. 2 IJ 2016 

FAIRHURST, J.-Nine employees (Employees) of Western State Hospital 

(WSH) 1 assert that their employer has illegally taken race into account when making 

staffing decisions in response to patients' race-based threats or demands. After a sixday bench trial, the trial court found that WSH managers issued a staffing directive 

that prevented African-American staff from working with a violent patient making 

1

WSH is a division of the Department of Social and Health Services. We refer to the 

respondents collectively as the "State" throughout this opinion. 
Blackburn v. State, No. 91494-0 

threats over the course of one weekend in 2011. Despite this race-based staffing 

directive, the trial court entered a verdict for the State and dismissed Employees' 

employment discrimination claims. We reverse the trial court and hold that the 

State's racially discriminatory staffing directive violates the Washington Law 

Against Discrimination (WLAD), RCW 49.60.180(3). 

I. FACTS AND PROCEDURAL HISTORY 

A. Facts 

This case involves Employees' challenge to alleged discriminatory acts of 

their employer WSH. WSH is a psychiatric hospital that cares for individuals with 

serious mental illnesses. WSH patients tend to be aggressive, violent, and psychotic, 

especially where Employees were staffed. Employees all worked on the 

evening/swing shift on the same ward (ward F-5) of the Center for Forensic Services 

at WSH. Employee Patricia Blackburn, a registered nurse (RN), worked as the 

charge nurse on ward F -5. Her race is Caucasian. The other eight Employees identify 

as various races and nationalities (African-American, black African, Filipino, and 

Caucasian). These eight Employees worked as psychiatric security attendants 

(PSAs) on ward F-5, where they helped care for patients. 

Although staff members are generally assigned to work in a particular home 

ward, they may be reassigned during a shift to work on a different ward based on a 

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Blackburn v. State, No. 91494-0 

"'pull list"' that ensures staff members are "pulled away from their home wards on 

an equal basis." Clerk's Papers (CP) at 2710 (Finding of Fact (FOF) 9). 

The trial court's findings focused on a staffing reassignment that involved 

patient M.P. In 2004, M.P. was admitted to WSH through an adjudication of not 

guilty by reason of insanity. M.P. was a particularly violent and intimidating patient 

who had assaulted both patients and staff. He was often delusional as a result of 

failing to take his medications and had spent significant time in seclusion and 

restraints. M.P. had a history of methamphetamine abuse, and he suffered from 

schizoaffective disorder, bipolar, and antisocial personality disorder. M.P. was 

housed on ward F-8. 

M.P.'s violent behaviors and delusions escalated toward the end of March 

2011. At that time, M.P. was usually staffed with two attendants during the day and 

one at night. One of his regular attendants was Marley Mann, an African-American 

PSA.2 Andy Prisco was M.P.'s treatment team coordinator. He had worked 

extensively with M.P. On Friday, April1, 2011, Prisco reported to RN4 Lila Rooks 

that M.P. was making credible threats toward Mann. He also quoted M.P.'s 

comments that he planned to "'fl'** up any [n word] working with him."' CP at 

2710 (alteration in original) (FOF 6). Prisco, who was familiar with numerous 

similar threats, believed that M.P.'s only credible threat directly targeted Mann and 

2

Mann is not a party to this action. 

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Blackburn v. State, No. 91494-0 

no one else. The trial court found that "the threats were directed specifically to Mr. 

Mann." CP at 2710 (FOF 6). 

Rooks shared Prisco's report with others. A decision was made that M.P. 

should not have access to African-American staff during the weekend to ensure staff 

safety. The trial court found that this decision "was likely an overreaction to Mr. 

Prisco's reported concerns." CP at 2710 (FOF 7). Rooks communicated the staffing 

decision to RN3s Barbara Yates and Beth Baltz. 

The next day, Yates called Blackburn to reassign three of Blackburn's PSAs 

to work on other wards. Yates specifically·directed Blackburn to send a white staff 

person to ward F-8, where M.P. resided. Seven of the nine Employees were working 

the swing shift on ward F-5 at this time. Blackburn refused to depart from the pull 

list and noted that the next three employees listed were all persons of color. 

Blackburn again refused when Yates directed that she send the person "'with the 

lightest skin."' CP at 2711 (FOF 10). Yates eventually directed Bonifacio Fornillos 

to go to ward F-8. Fornillos obeyed this directive and proceeded to work on ward F8 without incident. 

M.P. did not commit any assaults over the weekend of April 2-3, 2011. The 

trial court found that "the staffing directive ended" on Monday, April 4, 2011, and 

noted that "none of the plaintiffs have been on a shift in which a similar staffing 

assignment was made" since that time. CP at 2711 (FOF 12, 14). 

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Blackburn v. State, No. 91494-0 

B. Procedural history 

Employees initially sued the State for employment discrimination in federal 

court in 2011, asserting both state and federal law claims. After the State asserted 

sovereign immunity over the claims under chapter 49.60 RCW, the parties agreed to 

voluntarily dismiss their state law claims and refile them in Pierce County Superior 

Court.3 

The trial court held a six-day bench trial in 2015. The court entered findings 

of fact and conclusions oflaw dismissing all of Employees' WLAD claims, issuing 

a verdict for the defense. The factual findings focused on the particular staffing 

incident involving patient M.P. over the course of one weekend in April 2011. The 

court found that this staffing directive ended on April4, 2011, and that "none of the 

plaintiffs have been on a shift in which a similar staffing assignment was made" 

since April 2011. CP at 2711 (FOF 14). The court rejected Employees' disparate 

treatment claim on two grounds, concluding (1) that they failed to prove a tangible 

adverse employment action that was severe enough to be actionable and (2) that 

"safety was the overriding factor" in the staffing directive, rather than race. CP at 

2712 (Conclusion of Law (COL) 6). The trial court also dismissed Employees' 

hostile work environment claim, noting that the staffing directive was not "so severe 

3

The State prevailed on summary judgment in federal court on their federal claims, and the 

United States Court of Appeals for the Ninth Circuit affirmed in an m1published opinion. 

Blackburn v. State of Wash. Dep't of Soc. & Health Servs., 611 F. App'x 416 (9th Cir. 2015). 

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Blackburn v. State, No. 91494-0 

or pervasive" as to constitute a hostile work environment. CP at 2712 (COL 1 0); see 

also CP at 2712 (COL 9). Employees sought direct review in this court, which we 

granted. 

II. ANALYSIS 

Employees challenge multiple factual findings and conclusions of law. We 

review findings of fact for substantial evidence. Hegwine v. Longview Fibre Co., 

162 Wn.2d 340, 352, 172 P.3d 688 (2007). As the party challenging the trial court's 

factual findings, Employees have the burden to prove they are not supported by 

substantial evidence. See Fisher Props., Inc. v. Arden-Mayfair, Inc., 115 Wn.2d 364, 

369, 798 P.2d 799 (1990). "Substantial evidence" means evidence that is sufficient 

'"to persuade a rational, fair-minded person of the truth of the finding."' Hegwine, 

162 Wn.2d at 353 (quoting In re Estate of Jones, 152 Wn.2d 1, 8, 93 P.3d 147 

(2004)). So long as this substantial evidence standard is met, "a reviewing court will 

not substitute its judgment for that of the trial court even though it might have 

resolved a factual dispute differently." Sunnyside Valley Irrig. Dist. v. Dickie, 149 

Wn.2d 873, 879-80, 73 P.3d 369 (2003). We review conclusions of law de novo. 

Robel v. Roundup Corp., 148 Wn.2d 35, 42, 59 P.3d 611 (2002); Hegwine, 162 

Wn.2d at 348, 353. 

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Blackburn v. State, No. 91494-0 

A. Factual challenges 

Employees raise various challenges to the trial court's factual findings that 

generally relate to the duration and frequency of the State's race-based staffing 

practices. Although the trial court found that the race-based staffing directive lasted 

only one weekend and that Employees have not been subjected to similar staffing 

incidents, Employees claim the State maintains a policy of racial staffing that it has 

used on other occasions. 

We find that substantial evidence supports the trial court's factual findings. 

The trial court weighed the witnesses' testimony and credibility and implicitly 

determined that other staffing decisions described were not substantially similar to 

the racial staffing directive at issue in April 2011, which involved a clear 

communication that no staff members of a certain race were to be assigned to a 

particular ward over the course of one weekend. Based on our review of the record, 

Employees' challenges are not sufficient to disturb the trial court's factual findings 

under the substantial evidence standard. 

B. Legal challenges 

Employees claim that the trial court erred in dismissing their disparate 

treatment and hostile work environment claims. We agree with Employees that the 

State's explicitly race-based staffing directive constituted facial discrimination in 

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Blackburn v. State, No. 91494-0 

violation ofRCW 49.60.180(3). 

Since 1949, the WLAD has existed to protect individuals from discrimination 

on the basis of race, among other protected characteristics. The WLAD "shall be 

construed liberally" to accomplish its antidiscrimination purposes. RCW 49.60.020. 

RCW 49.60.180 prohibits racial discrimination in employment. At the federal level, 

Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, also contains 

antidiscrimination provisions with some similar statutory language. Although this 

case involves claims only under the WLAD, Washington courts often look to federal 

case law on Title VII when interpreting the WLAD. See, e.g., Hill v. BCTI Income 

Fund-I, 144 Wn.2d 172, 180, 23 P.3d 440 (2001). We view Title VII cases as "a 

source of guidance," but we also recognize that "they are not binding and that we 

are free to adopt those theories and rationale which best further the purposes and 

mandates of our state statute." Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 

355, 361-62, 753 P.2d 517 (1988). 

The WLAD makes it unlawful for an employer "[t]o discriminate against any 

person in compensation or in other terms or conditions of employment because of . 

. . race." RCW 49 .60.180(3 ). This case involves claims of disparate treatment under 

RCW 49.60.180(3). '""Disparate treatment" ... is the most easily understood type 

of discrimination. The employer simply treats some people less favorably than others 

because of their race, color, religion, sex, or national origin."' Shannon v. Pay 'N 

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Blackburn v. State, No. 91494-0 

Save Corp., 104 Wn.2d 722, 726, 709 P.2d 799 (1985) (alteration in original) 

(quoting Int'l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.IS, 97 S. Ct. 

1843, 52 L. Ed. 2d 396 (1977)). 

When an employee makes out a claim of disparate treatment under the 

WLAD, like Title VII, the employer's action is unlawful unless the employer has a 

valid justification. See, e.g., Franklin County Sheriff's Office v. Sellers, 97 Wn.2d 

317, 328-29, 646 P.2d 113 (1982) ("The County's decision to achieve a sexual 

balance by providing a male counselor and female counselor resulted in the County 

refusing to hire Sellers because of her sex. As such, the action was prohibited by 

statute unless it was based upon a bona fide occupational qualification."); Healey v. 

Southwood Psychiatric Hasp., 78 F.3d 128, 132 (3d. Cir. 1996) (policy of requiring 

both males and females on all shifts: "When open and explicit use of gender is 

employed, as is the case here, the systematic discrimination is in effect 'admitted' 

by the employer, and the case will tum on whether such overt disparate treatment is 

for some reason justified," such as through affirmative action or a bona fide 

occupational qualification (BFOQ)); Int'l Union, United Auto., Aerospace & Agr. 

Implement Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187, 199-200, Ill S. 

Ct. 1196, 113 L. Ed. 2d 158 (1991) ("Whether an employment practice involves 

disparate treatment through explicit facial discrimination does not depend on why 

the employer discriminates but rather on the explicit terms of the discrimination ... 

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Blackburn v. State, No. 91494-0 

. The beneficence of an employer's purpose does not undermine the conclusion that 

an explicit gender-based policy is sex discrimination under [Title VII] and thus may 

be defended only as a BFOQ."). 

The trial court held that Employees' disparate treatment claim failed. We 

disagree. According to the trial court's findings of fact, the State made staffing 

decisions that explicitly prevented certain employees from working on a particular 

ward over the course of one weekend due to their race. Although the trial court found 

these staffing orders were "likely an overreaction," this does not change the resulting 

discriminatory nature of the staffing decisions. CP at 2710 (FOF 7). The trial court 

found that "the decision was made that [M.P.] should not have access to African[-] 

American staff' and Yates directed that a "white staff person needed to go to F-8," 

instead of the African-American staff who were next on the pull list. CP at 2710 

(FOF 7, 9). These overt race-based directives affected staffing decisions in such a 

manner as to constitute discrimination in "terms or conditions of employment 

because of ... race" in violation ofRCW 49.60.180(3). We hold that the trial court 

erred in concluding otherwise. 

We also detennine that the State has no valid legal justification for its 

discrimination. RCW 49.60.180 allows employers to take protected characteristics 

into account in limited circumstances. See RCW 49.60.180(1) (prohibition against 

discrimination in hiring does not apply if based on a BFOQ), (3) (permitting 

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Blackburn v. State, No. 91494-0 

segregated washrooms and locker facilities on the basis of sex and allowing the 

Human Rights Commission to issue regulations or rulings "for the practical 

realization of equality of opportunity between the sexes"), (4) (prohibition against 

discrimination in advertising, job applications, and preemployment inquiries does 

not apply if based on a BFOQ). In order to satisfy the BFOQ standard, the employer 

must prove (1) that the protected characteristic is essential to job purposes or (2) that 

all or substantially all persons with the disqualifying characteristic would be unable 

to efficiently perform the job. Hegwine, 162 Wn.2d at 358. 

None of these statutory exceptions apply. RCW 49.60.180(3) allows limited 

exceptions for classifications only based on sex, not race. And even if the BFOQ 

defense from RCW 49.60.180(1) or (4) could apply in this case, which is doubtful, 

the State waived it. CP at 2641; 1 Verbatim Report ofProceedings (Feb. 2, 2015) at 

11. The State fails to assert any other defense that our statutes or case law recognize. 

Therefore, Employees prevail on their disparate treatment claims. 

Employees also challenge the trial court's dismissal of their hostile work 

environment claim. RCW 49.60.180(3) prohibits harassment based on a protected 

characteristic that rises to the level of a hostile work environment. An employee 

must demonstrate four elements for a hostile work environment claim: that the 

harassment (1) was unwelcome, (2) was because of a protected characteristic, (3) 

affected the terms or conditions of employment, and (4) is imputable to the 

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Blackburn v. State, No. 91494-0 

employer. Glasgow v. Ga.-Pac. Corp., 103 Wn.2d 403, 406-07, 693 P.2d 708 

(1985); see also Fisher v. Tacoma Sch. Dist. No. 10, 53 Wn. App. 591, 595-96, 769 

P.2d 318 (1989) (extending the hostile work environment standard in Glasgow to 

race-based hostile work environment claims). The trial court held that the employees 

failed to meet the third element, which requires that "[t]he harassment must be 

sufficiently pervasive so as to alter the conditions of employment and create an 

abusive working environment." Glasgow, 103 Wn.2d at 406. Harassing conduct has 

also been described as "severe and persistent," and it must be determined "with 

regard to the totality of the circumstances." Id. at 406-07.4 

Based on the trial court's factual findings, which we find are supported by 

substantial evidence, the trial court did not err in dismissing Employees' hostile 

work environment claim. The trial court applied the correct legal standard and did 

not err in concluding that the staffing decision over the course of a single weekend 

did not rise to the level of severe or pervasive harassment. 

Employees request relief in the form of damages, declaratory and injunctive 

relief, interest, attorney fees, and costs. RCW 49.60.030(2) allows successful 

4

The Court of Appeals has adopted criteria "[t]o determine whether the harassment is such 

that it affects the conditions of employment ... :the frequency and severity of the discriminatory 

conduct; whether it is physically threatening or humiliating, or a mere offensive utterance; and 

whether it unreasonably interferes with an employee's work performance." Washington v. Boeing 

Co., 105 Wn. App. I, I 0, 19 P.3d 1041 (2000) (citing Sangster v. Albertson's, Inc., 99 Wn. App. 

156, 163, 991 P.2d 674 (2000) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S. Ct. 

367, 126 L. Ed. 2d 295 (1993))). 

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plaintiffs in WLAD actions to recover damages, injunctive relief, costs, and attorney 

fees. Because we find that Employees have prevailed on their disparate treatment 

claim and have complied with RAP 18.1 and RCW 49.60.030(2), we remand this 

case to the trial court to determine the appropriate damages and reasonable attorney 

fees to award in this case. On remand, the trial court should also consider whether 

injunctive relief is appropriate and, if so, the trial court will be responsible for 

crafting the scope of and enforcing any injunction issued. 

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Blackburn v. State, No. 91494-0 

WE CONCUR: 

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