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### IN THE SUPREME COURT OF THE STATE OF WASHINGTON
PATRICIA BLACKBURN, DAVID CARPENTER, JACOB DAU, DENNIS FANT, BONIFACIO ) ) ) FORNILLOS, AKANELE IMO, ) JOSE LOPEZ, RALPH PETERSON, ) andMATTHEWSTALEY, ) Appellants,
v. STATE OF WASHINGTON DEPARTMENT OF SOCIAL AND HEALTH SERVICES and WESTERN STATE HOSPITAL, Respondents. ) ) ) ) ) ) ) ) ) ) ) ·-----) No. 91494-0 ENBANC

Filed 

### JUl. 2IJ 

### 2016

FAIRHURST, J.-Nine employees (Employees) ofWestern State Hospital (WSH) 1assertthattheir employerhas illegallytakenrace into accountwhenmaking staffing decisions inresponseto patients' race-basedthreats or demands. After a sixday bench trial, the trial court found that WSH managers issued a staffing directive that prevented African-American stafffrom 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. WSHpatients tendto be aggressive, violent, andpsychotic, especially where Employees were staffed. Employees all worked on the evening/swing shiftonthe same ward (wardF-5) ofthe CenterforForensic Services at WSH. Employee Patricia Blackburn, a registered nurse (RN), worked as the charge nurse onwardF-5. Herrace is Caucasian. The othereightEmployeesidentify
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 staffmembers 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



### 2Blackburn v. State, 

### No. 91494-0 "'pull list"' that ensures staffmembers are "pulled away from their home wards on
an equal basis." Clerk's Papers (CP) at 2710 (Finding ofFact (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 ofnot guilty by reason ofinsanity. M.P. was aparticularlyviolent and intimidatingpatient 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 ofMarch 2011. Atthat time, M.P. was usually staffed with two attendants duringthe day and
one at night. One ofhis 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

2Mannis not aparty to this action. 3Blackburn 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. shouldnothave accessto African-American staffduringthe weekendto 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 communicatedthe staffing decision to RN3s BarbaraYates and BethBaltz. The next day, Yates called Blackburnto reassign three ofBlackburn's PSAs to work on other wards. Yates specifically·directed Blackburn to send a white staff personto wardF-8, where M.P. resided. Seven ofthe 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 wardF-8. Fornillos obeyedthis directive andproceededto work on wardF8 without incident. M.P. did not commit any assaults over the weekend ofApril 2-3, 2011. The trial court found that "the staffing directive ended" on Monday, April 4, 2011, and noted that "none ofthe plaintiffs have been on a shift in which a similar staffing assignment was made" since thattime. CP at 2711 (FOF 12, 14). 

### 4Blackburn 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 sovereignimmunity overthe claims underchapter49.60 RCW, the parties agreedto 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 offact and conclusions oflawdismissing all ofEmployees' WLAD claims, issuing
a verdict for the defense. The factual findings focused on the particular staffing incident involving patient M.P. over the course ofone weekend in April 2011. The court found thatthis staffing directive ended on April4, 2011, andthat "none ofthe 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 workenvironment claim, notingthatthe staffing directive was not "so severe

3The Stateprevailedon summaryjudgmentin federal court on theirfederal claims, and the United States Court of Appeals for the Ninth Circuit affirmed in an m1published opinion. Blackburn v. State ofWash. Dep'tof Soc. & Health Servs., 611 F. App'x416 (9th Cir. 2015). 

### 5

### Blackburn v. State, No. 91494-0

orpervasive" as to constitute ahostile workenvironment. 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 oflaw. We review findings offact for substantial evidence. 

### Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 352, 172 P.3d 688 (2007). As theparty challengingthetrial court's factual findings, Employees have the burden to prove they are not supported by substantial evidence. 

### See FisherProps., Inc. v. Arden-Mayfair, Inc., 115 Wn.2d364, 369, 798 P.2d 799 (1990). "Substantial evidence" means evidence that is sufficient '"to persuade a rational, fair-minded person ofthe truth ofthe 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, "areviewing courtwill 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 oflaw de novo. 

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

### Hegwine, 162 Wn.2d at 348, 353.

6Blackburn 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. Althoughthe 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 apolicy ofracial 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 staffmembers of a certain race were to be assigned to a particular ward over the course ofone weekend. Based on our review ofthe 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

7

### Blackburn v. State, No. 91494-0 violation ofRCW49.60.180(3). Since 1949, the WLAD has existedto protectindividuals from discrimination
on the basis ofrace, among other protected characteristics. The WLAD "shall be construed liberally" to accomplish its antidiscriminationpurposes. RCW 49.60.020. RCW49.60.180 prohibits racial discrimination in employment. Atthe 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 onlyunderthe WLAD, Washington courts often lookto federal
case law on Title VII when interpreting the WLAD. 

### See, e.g., Hill v. BCTIIncome Fund-I, 144 Wn.2d 172, 180, 23 P.3d 440 (2001). We view Title VII cases as "a
source ofguidance," 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 ofour state statute." 

### Grimwoodv. Univ. of PugetSound, Inc., 110 Wn.2d 355, 361-62, 753 P.2d 517 (1988). The WLADmakes it unlawful for an employer "[t]o discriminate against any person in compensation or in otherterms or conditions ofemployment because of
.

. .race." RCW 49.60.180(3). This case involves claims ofdisparatetreatment under RCW 49.60.180(3). '""Disparate treatment"
... is the most easily understood type ofdiscrimination. The employer simplytreats somepeoplelessfavorablythanothers because oftheir race, color, religion, sex, or national origin."' 

### Shannon v. Pay 'N 8

### Blackburn v. State, 

### No. 91494-0 Save Corp., 

### 104 Wn.2d 722, 726, 709 P.2d 799 (1985) (alteration in original) (quoting Int'lBhd. of Teamsters v. UnitedStates, 

### 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 validjustification. 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 counselorresulted in the County refusing to hire Sellers because ofher sex. As such, the action was prohibited by statute unless it was based upon abona fide occupational qualification."); Healey v. SouthwoodPsychiatric Hasp., 

### 78 F.3d 128, 132 (3d. Cir. 1996) (policy ofrequiring 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 onwhether such overt disparate treatment is for some reason justified," such as through affirmative action or a bona fide occupational qualification (BFOQ)); Int'l Union, UnitedAuto., 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 butrather onthe explicitterms ofthe discrimination
... 9Blackburn v. State, No. 91494-0

.The beneficence ofan employer's purpose does not undermine the conclusion that
an explicit gender-basedpolicy is sex discrimination under [Title VII] andthus 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 wardoverthe course ofone weekenddue to theirrace. Althoughthetrial courtfound these staffingorderswere "likelyan overreaction,"this does notchangetheresulting discriminatory nature ofthe staffing decisions. CP at 2710 (FOF 7). The trial court found that "the decision wasmade that [M.P.] should not have access to African[-] American staff' and Yates directed that a "white staffperson needed to go to F-8," instead ofthe African-American staffwho 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 ofRCW49.60.180(3). We hold thatthe 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 10Blackburn 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 ofequality ofopportunity between the sexes"), (4) (prohibition against discrimination in advertising, job applications, and preemployment inquiries does not apply ifbased on aBFOQ). In orderto satisfythe BFOQ standard, the employer mustprove (1) thatthe protected characteristic is essential tojobpurposes or (2)that all or substantially all persons with the disqualifying characteristic would be unable to efficientlyperformthejob. Hegwine, 162 Wn.2d at 358. None ofthese statutory exceptions apply. RCW 49.60.180(3) allows limited exceptions for classifications only based on sex, not race. And even ifthe 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; 1Verbatim 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 ontheir disparatetreatment 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 11

### 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-basedhostilework environment claims). Thetrial courtheldthatthe 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 at406. Harassing conducthas also been described as "severe and persistent," and it must be determined "with regard to the totality ofthe 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 ofa single weekend did not rise to the level ofsevere or pervasive harassment. Employees request reliefin the form ofdamages, declaratory and injunctive relief, interest, attorney fees, and costs. RCW 49.60.030(2) allows successful

4The Court ofAppeals has adopted criteria "[t]o determine whether the harassment is such that it affects the conditions ofemployment
... :thefrequency and severity ofthe 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, I0, 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))). 

### 12Blackburn v. State, No. 91494-0 plaintiffs in WLAD actionsto recoverdamages, injunctiverelief, 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 andreasonable 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 ofand enforcing any injunction issued.

13Blackburn v. State, No. 91494-0

WE CONCUR:

14