IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION II

MAURICE CRAIN, Individually, No. 49135-4-II

Appellant,

v.

STATE OF WASHINGTON DEPARTMENT

OF SOCIAL AND HEALTH SERVICES,

WESTERN STATE HOSPITAL, UNPUBLISHED OPINION

Respondent.

WORSWICK, J. — Maurice Crain, an African-American man, appeals the trial court’s 

summary judgment dismissal of his employment discrimination lawsuit against the Department 

of Social and Health Services (DSHS). Crain argues that the trial court erred in granting DSHS’s

motion for summary judgment because the trial court misapplied summary judgment standards 

relating to employment discrimination claims and there is a genuine issue of material fact 

regarding whether Crain’s race was a substantial factor in DSHS’s decision to terminate him. 

Finding no error, we affirm summary judgment.

FACTS

Crain began working for Western State Hospital in 1990. Crain was later promoted to the 

position of psychiatric security attendant. Due to an incident unrelated to this case, Crain was 

working pursuant to a “Last Chance Agreement.” The Last Chance Agreement stated that Crain 

would “strictly comply with DSHS policies” and that if DSHS determined that Crain committed 

further acts of misconduct, he must voluntarily resign from his position. CP (Clerk’s Papers) at 

Filed

Washington State

Court of Appeals

Division Two

July 25, 2017
No. 49135-4-II

2

124. The Last Chance Agreement also provided that DSHS “may immediately terminate 

[Crain’s] employment for any violation of [the] Agreement.” CP at 125.

On September 6, 2012, Crain was working in the legal offender unit and was responsible 

for monitoring patient safety and observing patient behavior. During the unit’s mealtime, Crain 

and Diane Parsons, a licensed practical nurse, escorted a patient, R.K.,1to his room to eat his 

meal. A few minutes later, R.K. exited his room and fell to the floor in a praying position. 

Hospital policy prohibited patients from lying on the floor, although R.K. was known to kneel in 

a praying position regularly. 

Five hospital employees, including Crain, walked past R.K. as he lay on the floor outside 

of his room.2 Crain walked past R.K. at least four times and neither verbally nor physically 

checked to see if R.K. was responsive. After R.K. had lain on the floor for approximately seven

minutes, Parsons noticed that R.K. was choking and unable to breathe. Parsons asked for Crain’s 

assistance and began chest compressions and mouth sweeps to dislodge food stuck in R.K.’s 

throat. R.K. was transported to a neighboring hospital and died two days later. 

Following R.K.’s death, Western State Hospital reassigned Crain and the four other 

employees, who walked past R.K. while he was lying on the floor, to different departments 

within the hospital. The four other employees included: Victoria David, a mixed race 

supervising nurse; Margaret Karimi, an African-American non-permanent psychiatric security 

attendant; Parsons, a Caucasian licensed practical nurse; and James Smith, an African-American 

psychiatric security attendant. 

 

1 We use R.K.’s initials to protect his privacy.

2 Much of this incident was recorded by Western State Hospital’s surveillance video cameras. 
No. 49135-4-II

3

Western State Hospital reported R.K.’s death to both the Department of Health and the 

Lakewood Police Department. The Department of Health determined it would not take any 

disciplinary action regarding Crain’s nursing assistant license. Based on the Lakewood Police 

Department’s report, the Pierce County Prosecuting Attorney’s Office elected to not pursue 

criminal negligence charges against any hospital employees. 

In addition, the Washington State Patrol conducted an administrative investigation. 

Based on the Washington State Patrol’s findings, DSHS decided to terminate Crain, Parsons, and 

Smith. David resigned under a settlement agreement with the hospital, and Karimi’s 

employment contract was not renewed. 

Following DSHS’s decision to terminate him, Crain received a “Notice of Intent to 

Discipline” from Western State Hospital’s CEO, Ronald M. Adler. CP at 113-21. The notice of 

intent to discipline stated:

You were identified on the camera surveillance video walking by patient RK during 

this incident. By your own admission you did not physically check on patient RK 

or ask if he was “ok.” Your failure to assess patient RK, who was later identified 

as choking, led to his need for resuscitation.

CP at 113. Crain was also informed that he had violated the Last Chance Agreement and that he 

had committed ethical violations for his dishonesty. Crain reported that he knelt down and 

assessed R.K., determining that R.K.’s skin color and breathing did not indicate that he was in 

distress. However, Crain’s statements were inconsistent with video surveillance and his own 

statements to the Washington State Patrol, which showed that Crain did not assess R.K.’s skin 

color and did not kneel down near R.K. 

Later, Crain received a “Notice of Dismissal” from Adler. CP at 95. The notice of 

dismissal notified Crain that he was being terminated because of his “failure to assess a patient 
No. 49135-4-II

4

who was lying on the floor; [his] failure to follow protocol under [his] duties and responsibilities 

as a Psychiatric Security Attendant; and the violation of [his] Last Chance Agreement.” CP at 

95. The notice of dismissal also informed Crain that his failure to assess R.K.’s wellbeing 

constituted misconduct and a failure to comply with DSHS policies.3 

Crain, Parsons, and Smith filed grievances with their union. Following negotiations 

between the union and DSHS, Parsons’s and Smith’s terminations were adjusted to suspensions, 

and their employment was restored. The union declined to pursue Crain’s grievance because it 

determined that DSHS provided just cause for terminating him. 

Crain filed a lawsuit against DSHS for hostile work environment, disparate treatment, 

unlawful retaliation, and actual discharge. Crain later dismissed the hostile work environment 

and unlawful retaliation claims. DSHS then moved for summary judgment, arguing that Crain 

failed to establish a prima facie case of disparate treatment because he was unable to show that 

 

3 Crain notes that multiple non-African-American employees that were working the night of 

R.K.’s death were not disciplined and argues that this fact shows that DSHS was targeting 

African-American employees. Crain presents a strained interpretation of the record. Joseph 

Laureta, a Pacific-Islander registered nurse; Roberta Lopez, a Latin-American psychiatric 

security attendant; and Katherine Paulino, a Pacific Islander psychiatric security attendant were 

also on shift the evening of R.K.’s death. Laureta, Lopez, and Paulino were cleared of any 

misconduct after the Washington State Patrol determined, aided by video evidence, that they did 

not observe R.K. as he was choking on the floor and therefore did not fail to assess him or fail to 

follow hospital procedures. 

Crain also states that Laureta, Lopez, and Paulino “stepped over R.K. as a matter of 

course.” Br. of Appellant at 19 (emphasis omitted). This fact is simply not within the appellate 

record. As stated above, Laureta, Lopez, and Paulino did not observe or even walk by R.K. as he 

was choking on the floor, and they did not come into contact with R.K. until after Parsons began 

resuscitating him. 
No. 49135-4-II

5

he was treated less favorably than similarly situated non-protected employees and because 

DSHS’s decision to terminate him was supported by a legitimate and nondiscriminatory reason. 

After hearing oral argument on DSHS’s summary judgment motion, the trial court orally 

ruled that DSHS “articulated a reason for why they were terminating [Crain]” and that the stated 

reason was not pretextual. Verbatim Report of Proceedings (VRP) (June 17, 2016) at 16. The 

trial court then entered an order granting DSHS summary judgment and dismissing Crain’s 

claims with prejudice. Crain appeals. 

ANALYSIS

Crain argues that the trial court erred in granting DSHS’s motion for summary judgment 

because the trial court misapplied summary judgment standards relating to employment 

discrimination claims and that there is a genuine issue of material fact regarding whether Crain’s 

race was a substantial factor in DSHS’s decision to terminate him. We disagree.

I. LEGAL PRINCIPLES

We review the trial court’s grant of a motion for summary judgment de novo. Scrivener 

v. Clark Coll., 181 Wn.2d 439, 444, 334 P.3d 541 (2014). When reviewing a grant of summary 

judgment, we consider all facts and make all reasonable, factual inferences in the light most 

favorable to the nonmoving party. 181 Wn.2d at 444. Summary judgment is appropriate when 

there is no genuine issue of material fact and the nonmoving party is entitled to judgment as a 

matter of law. CR 56(c).

To overcome an employer’s motion for summary judgment in an employment 

discrimination case, an employee must show that a reasonable jury could find that the 

employee’s protected trait was a substantial factor in motivating the employer’s adverse actions. 
No. 49135-4-II

6

Scrivener, 181 Wn.2d at 445. An employee’s protected trait is a “substantial factor” when that 

protected trait was a significant motivating factor bringing about the employer’s decision. 181 

Wn.2d at 444. An employee may prove that his protected trait is a substantial factor by either 

direct or circumstantial evidence. 181 Wn.2d at 445.

If the employee does not produce direct evidence,4 we apply the burden-shifting analysis 

set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 

(1973). Scrivener, 181 Wn.2d at 446. Under the McDonnell Douglas analysis, the employee 

bears the initial burden of establishing a prima facie case of discrimination. 181 Wn.2d at 446. 

To establish a prima facie disparate treatment discrimination case, the employee must show that 

his employer treated some people less favorably than others because of their protected trait. 

Alonso v. Qwest Commc’ns Co., 178 Wn. App. 734, 743, 315 P.3d 610 (2013). Accordingly, the 

employee must show that (1) he belongs to a protected class, (2) he was treated less favorably in 

the terms or conditions of his employment (3) than a similarly situated, nonprotected employee, 

and (4) he and the nonprotected “comparator” were doing substantially the same work. 

Washington v. Boeing Co., 105 Wn. App. 1, 13, 19 P.3d 1041 (2000). 

If the employee fails to establish a prima facie case of discrimination, the employer is 

entitled to judgment as a matter of law. Fulton v. Dep’t of Soc. & Health Servs., 169 Wn. App. 

137, 148, 279 P.3d 500 (2012). If, however, the employee succeeds in establishing a prima facie 

case of discrimination, there is a rebuttable presumption of discrimination. 169 Wn. App. at 149. 

The burden then shifts to the employer to provide a legitimate, nondiscriminatory reason for the 

 

4 Discriminatory statements by an employer and other “smoking gun” evidence of discriminatory 

motive are considered “direct evidence” that a protected trait was a substantial factor. Fulton v. 

Dep’t of Soc. & Health Servs., 169 Wn. App. 137, 148 n.17, 279 P.3d 500 (2012).
No. 49135-4-II

7

adverse employment action. Scrivener, 181 Wn.2d at 446. If the employer meets its burden, the 

employee must produce sufficient evidence that the employer’s alleged nondiscriminatory reason 

for the adverse employment action was a pretext. 181 Wn.2d at 446. If the employee meets this 

burden, the discrimination case proceeds to trial unless the trial court determines that no rational 

fact finder could conclude that the employer’s action was discriminatory. 181 Wn.2d at 446.

II. THE TRIAL COURT’S APPLICATION OF SUMMARY JUDGMENT STANDARDS

First, Crain argues that the trial court erred in granting DSHS’s motion for summary 

judgment because it misapplied summary judgment standards relating to employment 

discrimination claims. We do not review this claim of error.

As discussed above, we review summary judgment decisions de novo. Scrivener, 181 

Wn.2d at 444. We conduct the same inquiry as the trial court and may affirm summary 

judgment on any ground supported by the record. Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 

144, 94 P.3d 930 (2004); Washburn v. City of Federal Way, 178 Wn.2d 732, 753 n.9, 310 P.3d 

1275 (2013). Because we may affirm summary judgment on any ground supported by the 

record, we are not bound by the trial court’s reasoning. Accordingly, we do not review Crain’s 

argument that the trial court misapplied summary judgment standards. Instead, we conduct our 

analysis de novo.

III. RACE AS A SUBSTANTIAL FACTOR

Crain argues that the trial court erred in granting DSHS’s motion for summary judgment 

because there was a genuine issue of material fact regarding whether Crain’s race was a 

substantial factor in DSHS’s decision to terminate him. We disagree.
No. 49135-4-II

8

A. Direct Evidence

Crain argues that there is direct evidence that race was a substantial factor in DSHS’s 

decision to terminate him. Br. of Appellant at 36, 38. Specifically, Crain states: 

There is abundant direct evidence indicating that Maurice Crain did everything that 

he possibly knew how to do for patient R.K. at the time of his choking event, and 

that other non-African American employees who were immediately present and 

who possessed medical training but did nothing to assist were favored heavily.

Br. of Appellant at 38. 

That Crain did his best to save R.K. and that others did not act is not the type of 

“smoking gun” evidence described in Fulton. Thus, it is not direct evidence that Crain’s race 

was a substantial factor in DSHS’s decision to terminate him. See Fulton, 169 Wn. App. at 148 

n.17. Moreover, Crain does not point to any discriminatory statements made by DSHS. 

Accordingly, Crain does not present direct evidence of discrimination. 

B. Circumstantial Evidence

Because Crain does not provide direct evidence that his race was a substantial factor in 

motivating DSHS’s decision to terminate him, Crain must establish a prima facie case of 

disparate treatment to overcome DSHS’s motion for summary judgment. Scrivener, 181 Wn.2d 

at 445-46. 

For purposes of this appeal, we assume without deciding that Crain establishes a prima 

facie case of disparate treatment.5 In doing so, we note that (1) Crain is a member of a protected 

class, (2) DSHS terminated Crain, Parsons, and Smith following the Washington State Patrol’s 

determination that the employees committed misconduct by failing to assess R.K. as he lay on 

 

5 However, we note that Crain’s Last Chance Agreement may distinguish him from any valid 

comparators. 
No. 49135-4-II

9

the floor choking, and (3) DSHS later restored Parsons’s and Smith’s employment after 

negotiations with their union. 

C. Legitimate and Nondiscriminatory Reasons for Termination

Because we assume that Crain establishes a prima facie case of disparate treatment, we

presume that employment discrimination took place. Scrivener, 181 Wn.2d at 446. To defeat 

this presumption, DSHS must provide a legitimate and nondiscriminatory reason for terminating 

Crain. 181 Wn.2d at 446. 

In its notice of dismissal, DSHS notified Crain that he was being terminated because he 

committed misconduct by failing to assess R.K. while he was lying on the floor, failing to follow 

hospital policies and procedures, and committing ethical violations. Hospital policy prohibited 

patients from lying on the floor and stated that patients have a right to adequate care in an 

environment free from neglect. Additionally, DSHS stated that Crain was terminated because he 

violated his Last Chance Agreement. The Last Chance Agreement provided that DSHS could 

terminate Crain if it determined that he committed misconduct or violated hospital procedures. 

The record makes clear that Crain failed to both verbally and physically check R.K.’s 

wellbeing as he was choking. In addition, DSHS determined that Crain’s account of the incident 

was inconsistent and dishonest. DSHS determined that Crain committed misconduct because he 

failed to check on R.K.’s wellbeing as he walked past R.K. and because he did not attempt to 

pick R.K. up off of the floor. Further, Crain’s dishonesty was a violation of the hospital’s ethics 

policies. Because DSHS determined that Crain committed misconduct, Crain was subject to 

immediate termination under the Last Chance Agreement. As a result, DSHS provides 

legitimate, nondiscriminatory reasons for terminating Crain.
No. 49135-4-II

10

D. Pretextual Reasons for Termination

Because DSHS provides legitimate, nondiscriminatory reasons for terminating Crain, 

Crain must present sufficient evidence that DSHS’s alleged nondiscriminatory reasons were a 

pretext. 181 Wn.2d at 446. An employee can show that his employer’s reasons for terminating 

him are pretextual by offering sufficient evidence to create a genuine issue of material fact that 

either (1) the employer’s reason is pretextual or (2) although the employer’s stated reason is 

legitimate, discrimination was still a substantial factor motivating the employer’s adverse action. 

181 Wn.2d at 446-47. For example, an employee may show that the employer’s stated reasons 

are pretextual by showing that the reasons have no basis in fact or were not motivating factors it

considered in making its decision. 181 Wn.2d at 447-48.

Crain argues that he is not obligated to show that DSHS’s stated reasons for terminating 

him were pretextual, and he argues only that his “exoneration” by the Department of Health and 

Pierce County Prosecuting Attorney’s Office shows that DSHS’s reasons for terminating him 

were pretextual. That no disciplinary action was taken against Crain’s nursing assistant license 

and that no criminal negligence charges were filed against him does not show that DSHS’s 

legitimate and nondiscriminatory reasons for terminating him have no basis in fact, and it is 

irrelevant in determining whether these reasons were a pretext. As a result, Crain fails to meet 

his burden to present sufficient evidence that creates a genuine issue of material fact that either 

DSHS’s reasons are pretextual or that race was nevertheless a substantial factor motivating 

DSHS’s decision to terminate him. Accordingly, the trial court did not err in granting DSHS’s 

motion for summary judgment.
No. 49135-4-II

11

We affirm summary judgment.

A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports but will be filed for public record in accordance with RCW 

2.06.040, it is so ordered.

Worswick, J.

We concur:

Johanson, J.

Bjorgen, C.J.