Deo v. King Broadcasting, 122 Wash.App. 1034 (Div. 1, 2004)

Lowell Deo was a television producer with King Broadcasting.  His employment was governed by a collective bargaining agreement between King and the American Federation of Television and Radio Artists.  After being terminated in 1999, he filed an unfair labor practice charge with the National Labor Relations Board.  The charge went to binding arbitration, and the arbitrator found that Deo was terminated for just cause. 

Deo, who is African-American and gay, then filed a race discrimination claim with the Equal Employment Opportunity Commission.  The EEOC referred the charge to the Washington State Human Rights Commission to investigate.  The Commission found no reasonable cause to believe Deo was discriminated against because of race.

Deo next filed a complaint with the Seattle Office for Human Rights, alleging a hostile work environment based on race and sexual orientation, but the charge was dismissed as untimely.

In 2000, Deo filed suit in King County Superior Court against King and Evening Magazine host John Curley.  King removed the case to federal court based on his union retaliation claim (alleged retaliation for filing a wage/hour grievance), which was governed by federal labor regulations, and his Title VII claim.  Judge Rothstein granted summary judgment on those two claims and remanded the remaining claims to the state court.  On remand, Judge Downing granted summary judgment on all remaining claims.  The union activity and race claims were dismissed based on collateral estoppel.  As to the race claim, Deo argued that, because of legal differences between Title VII and the Washington Law Against Discrimination, rejection of the former should not bar him from pursuing the latter.  Judge Downing rejected that argument, holding that any such differences were not material because it was clear that Deo’s performance was below standard and Judge Rothstein found that the evidence presented was inadequate to raise even the possibility that the termination for poor performance was a pretext for unlawful discriminatory motives.  

Judge Downing found insufficient evidence to support the remaining claims.  In this regard, as to the sexual orientation claim, the court concluded that alleged comments by coworkers, while offensive if made, did not evidence that his supervisors’ criticisms of his work were motivated by discriminatory animus or that King’s reasons for terminating him were pretext.    

Division One affirmed, holding that all claims were barred by collateral estoppel or unsupported by any evidence suggesting a triable issue of fact.  As to the claims against Curley, Division One explained that while individual supervisors, along with their employers, can be held liable for their discriminatory acts under Brown v. Scott Paper, 143 Wn.2d 349 (2001), Curley was not Deo’s supervisor.