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SUSAN L^CARLSON SUPREME COURT CLERK



### IN THE SUPREME COURT OF THE STATE OF WASHINGTON

DAWN CORNWELL,

Petitioner,

V. MICROSOFT CORPORATION, A Delaware Corporation,

Respondent. Filed No. 94846-1
En Banc
2 9 2018

WIGGINS, J.—Dawn Cornwell asks us to reverse the grant of summary judgment in her retaliation claim against her former employer, Microsoft Corporation. At issue is whether she presented enough evidence to show that her supervisors had sufficient knowledge thatshe had taken a protected action underthe Washington Law Against Discrimination (WLAD), RCW 49.60.030. Without establishing this knowledge,Cornwell cannotdemonstrate a potential causal link between the adverse employmentaction taken againstherand her protected activity. We hold that Cornwell presented sufficient evidence to survive summary judgment on the issues of knowledge and causation. The evidence tends to show that both of Cornwell'sCornwell(Dawn)v. Microsoft Corp.

No. 94846-1 

### supervisors had actual knowledge thatCornwell had previously engaged in protected activity before they subjected her to adverse employment action. As a result, we reverse the Court of Appeals and remand the case to the trial court for further proceedings.

FACTS AND PROCEDURAL HISTORY I . Factual History 

### While working for Microsoft, Cornwell believed that her then-supervisor was 

### discriminating against her on the basis of sex, engaging in romantic favoritism, and taking retaliatory action against her. She hired an attorney and settled the case with Microsoft. The settlement was confidential, and Cornwell was no longer required to work under her then-manager,Todd Parsons. Seven years later, Cornwell's new manager,Mary Anne Blake,asked Cornwell to mentor under another Microsoft employee. After learning that the employee reported to Parsons, Cornwell told Blake that she could not mentor under the employee. Blake asked Cornwell why, and Cornwell responded that it was because 

### she had filed a "lawsuit"^ against Microsoft and could not report to Parsons. Cornwell also told Blake that the suit involved a review score issue and was confidential. Blake 

### sought more information about the lawsuit from human resources and her direct supervisor, Nicole McKinley. Human resources did not have any information on file about the lawsuit and promised to follow up on the issue.

^ Cornwell and Blake referred to CornweH's previous legal action against Microsoft as a "lawsuit."We refer to that activity using the same terminology.Cornwell(Dawn)v. Microsoft Corp.

No. 94846-1 Meanwhile, Blake told Cornwell that she had Inquired about the lawsuit with human resources but that they did not have any further information. She also asked Cornwell what would happen if her team needed to merge with Parsons' team. Cornwell informed Blake that she was unable to discuss the lawsuit further because of the confidentiality agreement and expressed dissatisfaction that Blake had contacted human resources about the matter. Shortly after Cornwell told her about the suit, Blake conducted a mandatory performance review of Cornwell. During that year, Cornwell had received positive reviews from her peers: Dawn is [a] strong release manager able to pull all appropriate stakeholders together, drive meetings forward and succinctly, keep topics on point, and hold people to meeting deliverables.

. . . Dawn knows what me [sic] and my team need to be successful and she provides those resources proactively in a timely manner. I never have to wonder where a project stands when Dawn is leading the effort.

. . . She actively solicits feedback, is very receptive to any feedback received and also follows up on it.

. . . Dawn partners extremely well with others and has established a rapport and positive reputation with the many teams she works with. Clerk's Papers (CP) at 163-64. During her previous years working for Microsoft, Cornwell also had received good performance ratings and promotions. Despite this positive employment history, Blake informed Cornwell thatshe was trending toward aCornwell(Dawn)v. Microsoft Corp.

No. 94846-1 

### rating of"4,"the second lowest possible score.Cornwelltold Blake thatshe disagreed with that rating and was upset with this information. Blake followed up with human resources and McKinley about CornweH's response. Human resources promised to have Microsoft's legal department review Cornwell's performance rating. 

### Ultimately, Blake and McKinley recommended that Cornwell be rated "5," the lowest possible score. Other managers disagreed with the rating, believing that Cornwell was a higher performer. One manager did not have the "impression that Ms. 

### Blake was giving Ms. Cornwell a fair chance to succeed" and "didn't agree with her 

### [Blake's] assessment of [Cornwell's] performance." CP at 202. Another manager involved in the performance rating process recalled being "very surprised as to how 

### [Cornwell] was evaluated" and that "several of the managers in the discussion supported [Cornwell]as being a good performer,undeserving ofa '5'rating definition." CP at 212. Even Blake acknowledged that "in general Dawn received feedback that she's a good team player. People found her personality to be enjoyable, and she brought a positive and upbeat experience to teams." CP at 56. Despite these disagreements, McKinley said that she and Blake would "take the conversation 'off-line,'" meaning that Blake and McKinley would make the final decision about Cornwell's performance rating without the involvement of the other 

### managers. CP at 212. Cornwell's final performance rating was assessed as a "5"— the lowest possible score. Human resources told Blake to not inform Cornwell of her review score "unless she asked about it." CP at 63. Cornwell was then laid off as part 

### of a larger reduction in force. Cornwell remembers being told that she would notCornwell(Dawn)v. Microsoft Corp.

No. 94846-1 

### receive a review score rating because ofthe layoff.As a result, Cornwell did not learn about her low score until several years later when she was told that she could not be 

### rehired at Microsoft because herfinal performance rating was so poor.^ II. Procedural History Based on these events,Cornwellfiled suit against Microsoft,alleging retaliation in violation of WLAD. Microsoft moved for summary judgment, arguing that Cornwell had failed to present evidence showing a prima facie case of discrimination. The trial court granted Microsoft's motion for summary judgment because the judge believed that "there isn't evidence that Ms. Blake,who gave [Cornwell]the bad [review]score, knew that there was a complaint under WLAD." Report of Proceedings at 40. As a result, the judge believed that Cornwell had failed to show a causal link between the adverse employment action taken against her and her prior lawsuit against Microsoft. Cornwell appealed the trial court's ruling to the Court ofAppeals.The Court of Appeals affirmed the grant ofsummary judgment in an unpublished opinion. Cornwell V. Microsoft Corp., No. 74919-6-1, slip op. at 1-2 (Wash. Ct. App. June 5, 2017) (unpublished), https://www.courts.wa.gov/opinions/pdf/749196.pdf. The court agreed that Cornwell had failed to present evidence to prove causation between her prior lawsuitand the adverse employmentactions taken against her. Id. at 9. But it declined to address whether Cornwell's prior lawsuit was "protected activity" under WLAD.Id. The court also declined to adopt Cornwell's proposed standards of review for the claim. Id. at 13.

2 After she was terminated, Cornwell applied for 170 different positions at Microsoft.Cornwell(Dawn)v. Microsoft Corp.

No. 94846-1 

### Cornwell appealed the Court ofAppeals'adverse decision to this court,and we accepted review of all issues.

STANDARD OF REVIEW "We review a trial court's grant of summary judgment de novo." Scrivener v. Clark Coll., 181 Wn.2d 439, 444, 334 P.3d 541 (2014). "Summary judgment is 

### appropriate onlywhen there is nogenuine issue asto any materialfactand the moving party is entitled to judgment as a matter of law." Id. "[Bjecause of the difficulty of proving a discriminatory motivation,"id. at445,"[sjummary judgmentfor an employer is seldom appropriate" in the employment discrimination context, MIkkelsen v. Public 

### Utility DistrictNo. 1 ofKittltas County, 189 Wn.2d 516,527,404 P.3d 464 (2017).We must also "consider all facts and make all reasonable factual inferences in the light mostfavorable to the nonmoving party." Scrivener, 181 Wn.2d at 444.

ANALYSIS We reverse the Court of Appeals. Cornwell has presented sufficient evidence to make a prima facie case that Microsoft retaliated against her in violation ofWLAD. This evidence was adequate to create an issue of fact about whether there was a causal link between her prior suit and Microsoft's decision to give her a poor review 

### rating and terminate her. Under either the "actual knowledge" standard or the "knew
or suspected" standard, Cornwell presented sufficient evidence of the employer knowledge necessary to show causation. Ultimately, summary judgment was Improper,and we remand the case to the trial courtfor further proceedings.Cornwell(Dawn)v. Microsoft Corp.

No. 94846-1
I . Retaliation under WLAD WI_AD proscribes discrimination in employment on the basis of sex, race, sexuai orientation, and other protected characteristics. RCW 49.60.030. WLAD also prohibits employers from retaliating against empioyees who oppose discriminatory practices. RCW 49.60.210(1). To further these purposes,the legislature has directed
us to iiberaliy construe the provisions ofWLAD.RCW 49.60.020. When evaluating the merits of cases brought under WLAD, we employ the 

### McDonnell Douglas^ "evidentiary burden-shifting" framework. MIkkelsen, 189 Wn.2d at 526. This framework involves three steps, but we are concerned with only the first step in this case—the plaintiff's burden to establish a prima facie case of discrimination. Scrivener, 181 Wn.2d at446. '"Ordinarily the prima facie case must,in the nature of things, be shown by circumstantial evidence, since the employer is not apt to announce retaliation as his motive.'" Wllmot v. Kaiser Alum. & Chem. Corp., 118 Wn.2d 46, 69, 821 P.2d 18 (1991)(quoting 1 Lex K. Larson, Unjust Dismissal § 6.05[5], at 6-51 (1988)); see also Currier v. Northland Servs., Inc., 182 Wn.App. 733, 746-47, 332 P.3d 1006 (2014)('"Because employers rarely will reveal they are motivated by retaliation, plaintiffs ordinarily must resort to circumstantial evidence to demonstrate retaliatory purpose.'"(internal quotation marks omitted)(quoting Estevez V. Faculty Club ofUniv. of Wash., 129 Wn.App. 774, 799, 120 P.3d 579 (2005))).

3 McDonnellDouglas Corp. v. Green,411 U.S. 792,93 8.Ct. 1817,36 L. Ed.2d 668 (1973).Cornwell(Dawn)v. Microsoft Corp.

No. 94846-1 

### To establish a prima facie case of retaliation, an employee must show three 

### things:(1)the employee took a statutorily protected action,(2)the employee suffered
an adverse employment action, and (3) a causal link between the employee's protected activity and the adverse employment action. Currier, 182 Wn.App.at 742;
see also Wilmot, 118 Wn.2d at 68 (establishing the retaliation test in the worker's compensation context). Here, Microsoft alleges that Cornwell has failed to produce sufficient evidence 

### forthe first and third elements ofher prima facie case.''Because the Court ofAppeals declined to address whether Cornwell's lawsuit against Microsoft was a protected activity, and because the parties did not brief the issue to us, we do not reach that 

### issue on appeal.® We instead address only whether Cornwell presented sufficient evidence to show a potential causal link between her performance rating score, her termination, and her prior lawsuit.
II . Causation Microsoftargues that Cornwellfailed to present sufficient evidence to create an issue of material fact that there is a causal link between her prior lawsuit and the adverse employment action taken against her.We disagree for the following reasons.

The second element of the prima facie test is not at issue. It is undisputed that Cornwell received a poor performance evaluation rating and was terminated. CP at 144-45.The poor rating prevented Cornwell from being considered for future rehlrlng. CP at 219-20. This undoubtedly qualifies as an adverse employment action. See Jin Zhu v. N. Cent. Educ. Serv. Dist.—ESD 171, 189 Wn.2d 607, 619, 404 P.Sd 504 (2017) ('"An employment action Is adverse If It Is harmful to the pointthat It would dissuade a reasonable employee from making complaints of. . . retaliation.'" (Internal quotation marks omitted)(quoting Boyd v. State, 187 Wn.App. 1, 15, 349 P.Sd 864 (2015))). 5 Because the Issue Is not before us,for purposes of this appeal we assume that Cornwell's prior legal action against Microsoft constituted protected activity under W1_AD.

8Cornwell(Dawn)v. Microsoft Corp.

No. 94846-1 

### An employee proves causation "by showing that retaliation was a substantial factor motivating the adverse employment decision." Allison v. Hous. Auth., 118 Wn.2d 79, 96, 821 P.2d 34 (1991). At the summary judgment stage, the plaintiff's burden is one of production, not persuasion. Scrivener, 181 Wn.2d at 445. Thus, to avoid summary judgment on causation, the employee must show only that a reasonable jury could find that retaliation was a substantial factor in the adverse 

### employment decision. Id. Employees may rely on the following facts to show this: (1) the employee took a protected action, (2)the employerhad knowledge ofthe action, and (3)the employee was subjected to an adverse employment action. Wllmot, 118
Wn.2d at 69. Atissue here isthe quantum ofemployer knowledge aboutthe employee's prior protected activity. We have yet to address this question in a case. The parties advocate for three different standards to evaluate employer knowledge. Microsoft urges us to adopt the actual knowledge standard used by the Court of Appeals and several federal courts, while Cornwell advocates for either a "knew or suspected" standard or a "general corporate knowledge"standard used by other federal courts. Here, under either the actual knowledge standard or the "knew or suspected" standard, Cornwell presented enough evidence to survive summary judgment. We 

### decline to address the "general corporate knowledge"standard in this case.®
® Cornwell asks us to adopt the "general corporate knowledge" standard, which requires a plaintiffto show thatthe employer generally had knowledge ofthe plaintiff's protected activity. Kesslerv. WestchesterCountyDep'tofSoc. Servs.,461 F.3d 199,210(2d Cir. 2006). Under this standard,the jury can still find retaliation in circumstances where the particular decisionmaker denies actual knowledge of the plaintiff's protected activities, "so long as . . . the juryCornwell(Dawn)v. Microsoft Corp.

No. 94846-1
a. Actual Knowledge Cornwell has presented sufficientevidence to survive summaryjudgmentunder the actual knowledge standard. Both the Court ofAppeals and several federal courts require that the employer have actualknowledge ofthe employee's protected action in orderto prove causation. See,e.g., Mann v. King County, 194Wn.App.795,813,378 P.3d 203,reviewdenied, 186 Wn.2d 1028, 385 P.3d 124 (2016)("Marin failed to show that anyone . . . knew about his protected activity . . . , precluding his claim that employees . . . retaliated for that activity. He identifies no evidence that supports his bare assertion that the entire 'chain of command' knew [about his protected activity]."); Raney v. VInson Guard Serv., Inc. , 120 F.3d 1192, 1197 (11th Cir. 1997)("In order to satisfy the 'causal link' prong of a prima facie retaliation case, a plaintiff must, at a minimum, generally establish that the defendant was actually aware of the protected expression at the 

### time the defendant took the adverse employment action.").^ Because retaliation is an

concludes that an agent is acting explicitly or implicit[ly] upon the orders of a superior who has the requisite knowledge." Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000).While the standard may be useful in situations where many individuals act collectively in a large company, it is not applicable here where CornweH's two supervisors had actual knowledge of her prior lawsuit. Thus, we decline to address the "general corporate knowledge" standard in this case. ^ See a/so MIchkowskI v. Snohomlsh County, No. 71328-1-1, slip op. at 14 (Wash. Ct. App. Feb. 17, 2015)(unpublished), https://www.courts.wa.gov/opinions/pdf/713281.pdf ("Without evidence of actual knowledge, [an employee] fails to establish the causal connection necessary to make out a prima facie case of retaliatory discharge."); Stephens v. Erickson, 569 F.3d 779, 788 (7th Cir. 2009)("Clearly, a superior cannot retaliate against an employee for a protected activity about which he has no knowledge."); Raad v. Fairbanks N. Star Borough Sch. DIst., 323 F.3d 1185, 1197(9th Cir. 2003)("In addition, the plaintiff must make some showing sufficient for a reasonable trier offact to infer that the defendant was aware that the plaintiff had engaged in protected activity.").

10Cornwell(Dawn)v. Microsoft Corp.

No. 94846-1 

### intentional act, an employer cannot retaliate against an employee for an action of which the employer is unaware.Marin, 194Wn.App.at818("WI_AD does not prohibit
an employer's actions without evidence of a causal link between the action and a plaintiffs protected activity."). Microsoft argues that Blake and McKinley did not have actual knowledge of Cornwell's suit because they did not know the specific nature ofthe lawsuit—i.e.,that it involved an allegation of discrimination in violation of WLAD. CP at 55, 144. However, Microsoft's focus on the managers'knowledge about the substance of the suit is misplaced. A decision-maker need not have actual knowledge about the legal significance of a protected action. Instead, the decision-maker need have actual knowledge only that the employee took the action in order to prove a causal connection. ROW 49.60.210(1) ("It is an unfair practice for any employer . . . to discharge,expel,or otherwise discriminate against any person because he or she has opposed any practices forbidden by [WLAD]."); see aiso Wilmot, 118 Wn.2d at 69 (stating that an employee could prove causation by showing three facts, including "that the employer had knowledge ofthe [action]"). "The proper inquiry is whether the

. . . evidence suggests a causai connection between the protected activity and the subsequent adverse action sufficient to defeat summary judgment." Reich v. Hoy Shoe Co., 32 F.3d 361, 367 (8th Cir. 1994). Cornwell has presented sufficient evidence that Blake and McKinley knew Cornwell took prior legal action against Microsoft.

11

### Cornwell(Dawn)v. Microsoft Corp.

No. 94846-1 

### Here, Blake and McKinley actually knew about Cornwell's alleged protected 

### activity—the lawsuit. Regardless of whether they understood that the lawsuit was protected activity underWLAD because ofits substance,theystill had knowledgethat the activity took place. It is undisputed that Blake and McKinley knew that Cornwell had filed a lawsuit against Microsoft and her former supervisor. Blake learned that Cornwell could not discuss the details ofthe lawsuit, but knew that the suit involved a 

### review score and male supervisor. Blake also knew that Cornwell "had a legal action with Microsoft about a review score." CP at 55. Blake then followed up with human
resources about Cornwell's lawsuit with Microsoft.® 

### Given Blake and McKinley's knowledge of the suit and the poor performance 

### rating and termination that followed shortly thereafter,® it is a reasonable inference that these actions were in retaliation for Cornwell's previous lawsuit. See Raad, 323 

### F.3d at 1197 ('"That an employer's actions were caused by an employee's 

### engagement in protected activities may be inferred from proximity in time between the 

### protected action and the allegedly retaliatory employment decision.'" (internal quotation marks omitted)(quoting Ray v. Henderson, 217 F.3d 1234, 1244 (9th Cir. 2000)); see also Wilmot, 118 Wn.2d at 69 (stating, "'[pjroximity in time between the

® Contrary to the dissent's criticisms, it is because of all of the facts here discussed, not merely because CornweN's prior suit involved a male supervisor, that her claim survives summary judgment. Dissent at 2. Further, also despite the dissent's assertions, we know that Cornweirs prior suit related to sex discrimination; we do not make (or need to make)the "over-inclusive" assumption that all suits by a female employee against a male supervisor involve sex discrimination.Accordingly,the dissent's list of hypothetical claims that might have been brought is surplusage. Id. at 2-5. 9 Cornwell told Blake about the lawsuit in late 2011. In July 2012, Blake and McKinley rated Cornwell as a "5," and Cornwell was laid off in September 2012.

12Cornwell(Dawn)v. Microsoft Corp.

No. 94846-1 

### claim and the firing is a typical beginning point'" for proving retaliation (quoting 1 Larson, supra, § 6.05[5], at 6-51)).^° In addition, Cornwell had previously received 

### positive ratings and promotions during her employment at Microsoft. In the year that she was terminated,"several"other managers disagreed with Blake's decision to rate 

### Cornwell poorly and thought that she should be rated higher based on her performance. Again, McKinley and Blake knew about Cornwell's prior legal action, and the circumstantial evidence supports the reasonable inference that Blake's 

### knowledge of Cornwell's lawsuit was a substantial factor in her poor rating and eventual termination. That is all that is required to survive summary judgment. As a 

### result, Cornwell presented the necessary circumstantial evidence to show that her lawsuit was a substantial motivating factor in her poor performance rating and termination under the actual knowledge standard.
b. Knew or Suspected Cornwell also asks us to adopt a "knew or suspected" standard for evaluating retaliation claims. The "knew or suspected" standard incorporates the actual 

### knowledge standard and also encompasses cases in which the employer suspects

Microsoft argues that Cornwell lacks evidence of proximity because she filed her prior lawsuit seven years before her poor evaluation and termination. However, this argument focuses on the wrong event. Here, Blake and McKinley learned about CornweH's previous lawsuit only months before Cornwell was terminated. To properly evaluate whether there is sufficient circumstantial evidence ofretaliation,we mustfocus on the proximity between when Blake and McKinley learned of the lawsuit and the adverse employment actions that they 

### subsequently took. The time between those events is a few months—brief enough to give rise to a reasonable inference of retaliatory motive.

13Cornwe

I I(Dawn)v. Microsoft Corp. No. 94846-1 

### that an employee engaged in protected action.''^ It requires sufficient evidence to reasonably infer "both that[a supervisor]either knew or suspected"that an employee took a protected action "and that there was a causal connection between this knowledge or suspicion and [the employee's]termination." Hernandez v. Spacelabs Med. Inc. , 343 F.3d 1107, 1113 (9th Cir. 2003). This standard applies, for example, 

### when a supervisor has actual knowledge that a complaint was made but has only a suspicion regarding who made the complaint and subsequently takes an adverse employment action based on that suspicion. In Hernandez, the Ninth Circuit court held that a supervisor's suspicion that a 

### particular employee wasthe one whofiled a sexual harassment reportwasenough to survive summary judgment after the supervisor fired the suspected employee. Id. In that case, an employee learned that his coworker was allegedly harassed by a 

### supervisor. Id. at 1110. Because his coworker was afraid to report the harassment, the employee reported it to the human resources department. Id. Shortly thereafter, the supervisorfired the employee,/c/. at 1111.Afterthe employee sued for retaliation, the supervisor denied that he knew which employee reported him for harassmentand stated that the employee's termination was for cause. Id. at 1113. The trial court 

### granted summary judgment in favor ofthe employer on this basis. Id.

" The "knew orsuspected"standard has been applied bythe United States CourtofAppeals, Ninth Circuit,as well as by otherfederal courts in the OSHA context. See,e.g.,Hernandez v. Spacelabs Med. Inc. , 343 F.3d 1107 (9th Cir. 2003);Reich, 32 F.3d 361.

14Cornwell(Dawn)y. Microsoft Corp.

No. 94846-1 The Ninth Circuit reversed summary judgment, holding that the employee had 

### presented "sufficient evidence from which a reasonable jury could infer both that [the supervisor] either knew or suspected that [the employee] had reported the alleged harassment to [human resources], and that there was a causal connection between 

### this knowledge orsuspicion and [the employee's]termination." Id.The courtreasoned that "[i]t is frequently impossible for a plaintiff in [the employee's]position to discover direct evidence contradicting someone's contention that he did not know something." Id. at 1114. Thus, "[w]hat-did-he-know-and-when-did-he-know-it questions are often difficult to answer, and for that reason are often inappropriate for resolution on 

### summary judgment. . . . But[the employee]has introduced substantial circumstantial evidence. . . . He has produced sufficientevidence which,ifcredited by thejury,would 

### satisfy [the]burden of establishing a prima facie case." Id. at 1113-14. So long as an 

### employee produces evidence from which a reasonable jury could infer that retaliation had taken place,this is sufficientto survive summaryjudgment,/c/. at 1114.And while,


### a jury could believe the supervisor's version ofevents rather than the employee's,the jury must be permitted to consider and weigh evidence. Id. Here, Cornwell had to prove that Microsoft knew or suspected that she had 

### taken a prior iegal action. As previously discussed, Cornwell produced sufficient evidence showing that both Blake and McKinley had actual knowledge that Cornwell had filed a previous lawsuit against Microsoft. Thus,Cornwell easily meets the "knew 

### or suspected"standard to survive summary judgment on her retaliation claim.

15Cornwell(Dawn)v. Microsoft Corp.

No. 94846-1 

### Although Cornwell satisfies the "knew or suspected" standard, the broader 

### question remains of whether we should adopt this standard. We adopt the standard because it furthers WLAD's purpose to protect employeesfrom retaliation. 

### The purpose behind the "knew or suspected"test is to protect employeesfrom retaliation to the fullest extent possible:

Itseemsclearto this Courtthatan employerthatretaliates against 

### an employee because of the employer's suspicion or belief that the 

### employee filed a[ ]. . . complaint has as surely committed a violation of [the statute] as an employer that fires an employee because the employer knows that the employee filed a[ ] . . . complaint. Such construction most definitely furthers the purposes of the Act generally and the anti-retaliation provision specifically. Reich, 32 F.3d at 368. "It is well recognized that WLAD . . . relies heavily on private individuals for its enforcement. This reliance would be unrealistic, to say the least, 'if 

### this court does not provide them some measure of protection against retaliation.'" Jin Zhu V. N. Gen. Educ. Sen/. Dist.—BSD 171, 189 Wn.2d 607, 622-23, 404 P.3d 504 

### (2017)(citation omitted)(quoting Allison, 118Wn.2d at94).Restricting the application of WI-AD's antiretaliation provisions to instances of actual knowledge results in inconsistent protection of employees: 

### It would be a strange rule, indeed, that would protect an employee 

### discharged because the employer actually knew he or she had engaged 

### in protected activity but would not protect an employee discharged because the employer merely believed or suspected he or she had engaged in protected activity. 

### Reich, 32 F.3d at 368. Employers are not limited to retaliation decisions based on 

### information they actually know to be true. Id. Instead,"common sense and experience

16Cornwell(Dawn)v. Microsoft Corp.

No. 94846-1 

### establish that employers also make employment decisions on what they suspect or believe to be true." Id. 

### Thus, construing WLAD "to protect employees from adverse employment actions because they are suspected of having engaged in protected activity is consistent with the general purposes ofthe Act and the specific purposes ofthe antiretaliation provisions." Id.(emphasis added);see also Brady v.Autozone Stores, Inc., 188 Wn.2d 576, 583, 397 P.3d 120 (2017) (recognizing that because a policy 

### "ultimately provides greater protection for workers, it is more in tune with other Washington case law addressing employee rights"). As a result, as long as an employee presentsevidence "suggest[ing]a causalconnection between the protected activity and the subsequent adverse action sufficient to defeat summary judgment," thatemployee has made a prima facie case ofretaliation underWLAD.Reich,32F.3d
at 367.Microsoft and amid curiae the Association of Washington Business and the Chamber of Commerce ofthe United States ofAmerica contestadoption ofthe "knew


### or suspected" standard. They argue that adopting the standard leads to strict liability 

### for employers,eliminates the causation elementofa retaliation prima facie case,and invites speculation into the summary judgment phase. Of these arguments, none is persuasive. The "knew or suspected" test does not lead to strict liability or eliminate the 

### requirement that a retaliation be intentional. Instead, the test eliminates the right of employers to intentionally retaliate against employees that they suspect but do not

17Cornwell(Dawn)v. Microsoft Corp.

No. 94846-1 

### actually know to have taken protected action. An employee must still produce sufficient evidence that his or her protected activity was a substantial factor in the employer's decision to take adverse action againstthe employee.Allison, 118 Wn.2d
at 96. In addition,the standard requires the production ofevidence]mere speculation will not suffice to defeat summary judgment. Grimwood v. Univ. ofPuget Sound, Inc., 110 Wn.2d 355, 359-60, 753 P.2d 517 (1988)("The 'facts' required by CR 56(e)to defeat a summary judgment motion are evidentiary in nature. Ultimate facts or conclusions are insufficient. Likewise, conclusory statements of fact will not suffice." (citation omitted)). "It is frequently impossible for a plaintiff . . . to discover direct evidence contradicting someone's contention that he did not know something." Hernandez,343 F.3d at 1114. Instead,as long as "[a]reasonable jury could inferfrom [a plaintiff's] evidence" that the plaintiff's protected activity was a substantial factor in the adverse employment decision, that plaintiff has satisfied his or her burden of establishing a prima facie case of retaliation. Id. For these reasons, we adopt the "knew or suspected" standard because it furthers WLAD's purpose of protecting employees from retaliation.
CONCLUSION In conclusion, we reverse the Court of Appeals. We adopt the "knew or suspected"standard and hold that Cornwell presented sufficient evidence to create a dispute offact about whether there was a causal link between her poor performance 

### rating and termination and the previous lawsuitshefiled against Microsoft. Both Blake

18Cornwell(Dawn)v. Microsoft Corp.

No. 94846-1 

### and McKinley had actual knowledge that Cornwell filed the prior lawsuit against Microsoft. Shortly after learning this, and over the objection of other managers,they gave Cornwell the lowest possible review rating, and Cornwell was laid off. In light of this evidence, the trial court erroneously granted summary judgment to Microsoft. We reverse and remand the case to the trial court for further proceedings consistent with this opinion.

19Cornwell(Dawn)v. Microsoft Corp.

No. 94846-1

WE CONCUR. 

# '7%U fiwA

7

20

### Cornwell(Dawn)v. MicrosoftCorp.,No.94846-1

(Gordon McCloud,J.,dissenting)

No. 94846-1



### GORDON McCLOUD,J. (dissenting)—I agree with the majority's 

### main conclusion that a plaintiffcan show retaliatory discharge in violation ofthe 

### Washington Law Against Discrimination (WLAD), ROW 49.60.030, without showing that the employer had actual knowledge ofthe plaintiffs prior protected activity. A plaintiffs showing that the employer suspected that the plaintiffhad previously engaged in WLAD-protected activity is enough to establish the causation requirementofa WLAD retaliatory discharge claim. Majority at 13-16.

ButI disagree with the majority's application ofthat legal standard to the facts ofthis case. The majority identifies nothing in the record showing that Dawn Comwell's current supervisors knew or suspected that her prior lawsuit involved the WLAD-prohibited activity ofsex discrimination.



### I say that because the majority holds that the following facts, alone, suffice to satisfy the knowledge or suspicion element of WLAD causation: 

### (1)Comwell's supervisors knew that she had previously broughta lawsuit againstCornwell(Dawn)v.Microsoft Corp.,No.94846-1

(Gordon McCIoud,J.,dissenting)


### MicrosoftCorporation^,(2)those supervisorsknew thatthe lawsuithad involved a male supervisor, and (3)those supervisors knew that the lawsuit had involved a review score. Id. at 2. Indeed, the majority accepts Microsoft's assertion that Comwell's supervisors "did notknow the specific nature ofthe lawsuit—i.e.,that it involved an allegation of discrimination in violation of WLAD." Id. at 11 (emphasis added). Thus, the majority ends up holding that because Comwell's supervisor knew that her prior lawsuit had "involved a review score and male supervisor," her present claim was entitled to survive Microsoft's motion for summaryjudgment. Id. at 12(emphasis added).



### I disagree. That analysis creates a standard that is both significantly over-inclusiveincertainrespectsandsignificantlyunder-inclusiveinotherrespects.

The majority's analysis is over-inclusive because it assumes that a female employee's lawsuit about a male supervisor and a review score could not have alleged anything but sex discrimination. But that is incorrect. A female employee could bring a lawsuitrelated to herreview score and hermale supervisor thatsoundsin tort. Depending onthe explanation thatthemale supervisorprovided forthereview scorethathegavehisfemaleemployee,suchalawsuitmightadvance



### 'Likethe majority,Iusetheparties'terminology. Seemajorityat 2n.1. 2Cornwell(Dawn)v. Microsoft Corp.,No.94846-1

(Gordon McCloud,J., dissenting)


### claims for negligent infliction of emotional distress, intentional infliction of emotional distress,or defamation.



### Besides common law torts,such a lawsuit could allege any number of statutory retaliation claims that do not implicate the WLAD. For example,a male supervisor could give afemale employeeapoorreview score because she submitted
a safety complaint, in violation ofRCW 49.17.160. Or a male supervisor might give a female employee a poor review score because she told her coworkers that she thinks they should form a union,in violation of29U.S.C. § 158(a)(3). A male supervisor could give a female employee a poor review score because he thought that she was insufficiently committed to the company after she spent two weeks serving on ajury trial—in violation ofRCW 2.36.165(2). As yet another example,
a male supervisor might give a female employee a poor review score because she blew the whistle under the Sarbanes-Oxley Act of 2002, an 18 U.S.C. § 1514A 

### violation. Or a male supervisor could give a female employee apoor review score because she refused to disclose her login information to her personal social networking account, access her personal social networking account in the supervisor's presence, add a contact ofthe supervisor's selection to her personal social networking account, or alter the view settings of her personal social networking account—all in violation of RCW 49.44.200(1)(e). A female

### Cornwell(Dawn)v. Microsoft Corp.,No.94846-1

(Gordon McCloud,J., dissenting) 

## employee's refusal to take a 23andMe DNA (deoxyribonucleic acid) test, even though everybody else in the departmentwas doing so and thoughtthatlooking at the results was great fun, might also generate a poor review score from a male 

### supervisor,violating 42U.S.C.§ 2000ff-l(b). A male supervisormightalso givea female employee a poor review score because she declined to support the company's—or her supervisor's—^preferred candidate or political party, implicating RCW 42.17A.495(2). A male supervisor could also give a female employee a poor review score because he thought that her invocation offederal bankruptcy protections in herpersonal life made her unreliable and untrustworthy, in violation of11 U.S.C. § 525(b). Annoyed atthe increased paper work in his life,


### a male supervisor could also give a female employee a poor review score because she filed a workers' compensation claim—rurming afoul ofRCW 51.48.025(1). Likewise, a male supervisor might give a female employee a poor review score because she took action to stop her employer from defrauding the federal government,implicating 31 U.S.C. § 3730(h)(1).



### All of these supervisory actions would be illegal—but none would violate the WLAD. They would violate other statutes. For this reason, the 

### majority'sconclusionthatafemaleemployee'sreview-score lawsuitagainstamale 

### employer must have been gender-based is impermissibly overbroad. It includes

### Cornwell(Dawn)v. Microsoft Corp.,No.94846-1

(Gordon McCloud,J., dissenting)


### within the WLAD'sscope even claims in which the employee failsto show thatthe 

### employer knew or suspected that the employee engaged in WLAD-^xotQoXQd activity. 

### The majority justifies its analysis by asserting that the supervisors' "knowledge about the substance of the suit is" immaterial. Majority at 11. According to the majority, "the decision-maker need have actual knowledge only that the employee took the action in order to prove a causal connection." Id. The majority cites Wilmotv.KaiserAluminum andChemicalCorp.forthatproposition. Id.; see 118 Wn.2d 46,69,821 P.2d 18 (1991). But that is not what Wilmotheld. Wilmotinvolved claims for wrongfultermination in violation ofpublicpolicy. 118 

### Wn.2d at51-52. Theplaintiffs alleged thattheir employersfired them becausethey had filed workers'compensation claims. Id. Weheld "thataplaintiffmayestablish 

### the required case by showing thatthe worker filed a workers'compensation claim, that the employer had knowledge of the claim, and that the employee was 

### discharged." Id. at69. Butthat"knowledge ofthe claim"language wasareference to the fact that in Wilmot, the substance of the claims—^that is, that they were 

### workers'compensation claims—waswellknown to the employers when they fired the employees. Id. at 51;Moran v. Wash. Fruit&Produce,60Wn.App.548,550, 

### 804P.2d 1287(1991),rev'dby Wilmot, 118 Wn.2d at 79. Wilmotdid notinvolve a

### Cornwell(Dawn)v. Microsoft Corp.,No.94846-1

(Gordon McCloud,J.,dissenting) 

### mysterious prior claim that inspired "detective work," as this case does. Clerk's Papers at 156. Moreover, Wilmotconcluded thataplaintiffmustshow thatatleast part ofthe employer's ''motivation for the discharge was the employee's exercise ofor intentto exercisethe statutory rights." 118 Wn.2d at 68-69(emphasis added);
see also id. at 67(requiring a showing ofthe employer's "'motivat[ion]'"(quoting 

### Thompson v. St. Regis Paper Co., 102 Wn.2d 219,232,685 P.2d 1081 (1984))). Here, contrary to the WLAD and contrary to Wilmot, the majority discards the requirement that knowledge or suspicion of IfX^D-protected activity was a substantial factor in the adverse employment action. Once again, the majority's analysis is over-inclusive.



### But the majority's approach is also under-inclusive in a different 

### respect. Thereisnodoubtthatthehistoryofgenderdiscriminationintheworkplace is basically a history ofgender discrimination against women. See generally Cal. Fed.Sav. &Loan Ass'n v. Guerra,479 U.S.272,286, 107 S.Ct.683,93 L.Ed.2d 

### 613(1987)(purpose ofantidiscrimination legislation atissue wasto "providerelief for working women and to end discrimination against pregnant workers");Muller V. Oregon, 208 U.S. 412, 28 S. Ct. 324, 52L.Ed. 551 (1908) (detailing and 

### justifying history oflimitations on women in the workplace). Butthere is also no doubt that male supervisors can violate their male employees'rights to be free ofCornwell(Dawn)v. MicrosoftCorp.,No.94846-1

(Gordon McCloud,J.,dissenting)



### sex discrimination in the workplace and so too can female supervisors vis-a-vis female or male employees. See, e.g., Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998)(sex discrimination includes 

### sexual harassment by male supervisor against male employee);Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864 (9th Cir. 2001)(male coworkers' type ofverbal abuse ofmale employee constituted sexual harassment). I fear that the majority's
standard fails to take account ofthose discrimination claims.



### In sum, the majority has not identified any facts showing that the supervisors in this case knew or suspected that Cornwell previously engaged in WLAD-protected activity. For thatreason,I respectfully dissent.Cornwell(Dawn)v. Microsoft Corp.,No.94846-1

(Gordon McCloud,J.,dissenting)