Washington State Patrol May Have Discriminatorily Fired a Black Female Cadet Despite Multiple Failed Tests

By Erica Shelley Nelson and Brennen Johnson

Discrimination1In Davis v. State of Washington, the Washington State Court of Appeals, Division I, reversed the dismissal of a gender and race discrimination claim filed by a Washington State Patrol Cadet. The former Cadet sued the State of Washington claiming that race and gender played a substantial role in the Washington State Patrol Training Academy’s decision to terminate her from the program. The trial court dismissed the lawsuit before trial after determining that the State had provided a legitimate reason for terminating the Cadet. The Court of Appeals reversed the dismissal finding that the Cadet had shown that, even if a legitimate reason existed for her termination, the decision still might have been substantially motivated by race or gender discrimination.

Out of the twenty-five students in her basic training class, Cadet Elizabeth Davis was one of only three females and the only black member. Davis had entered the class with strong recommendations from her supervisors in the pre-academy training program and continued to receive praise for her performance in the Academy. Just a month prior to her termination, she ranked second in her class academically. About twenty days prior to her termination, an instructor failed Davis on a skill test for stopping high-risk vehicles, describing her commands as “unsure and weak,” and stating that she “appeared indecisive.” Just prior to the test, the instructor had commented that he would not want Davis to be a state trooper if she “was his wife or daughter.”

Later, the instructor visited the Cadet at her dorm room to discuss the test. During the meeting, the instructor offered Davis the opportunity to review the videotape of her test, but also said that it failed to record correctly and there was no point in watching it. After a failed retest, the instructor approached superior officers and recommended that they terminate Davis from the Academy. To support his recommendation, he explained that Davis “was having issues regarding the practical exercises,” and he was concerned Davis “was likely to be injured or killed if she was allowed to continue on to become a WSP Trooper.” He also claimed that Davis challenged authority and did not take criticism well. He supported this by saying that he had “counselled Davis on her performance, including offering her the opportunity to review the videotape of the failed exercise,” but Davis “refused this opportunity.” Based on the instructor’s statements and recommendation, the Academy terminated Davis the next day.

After her termination, Davis brought a lawsuit against the state claiming that the decision was motivated by discrimination based on gender and race. She pointed out that white male officers had been given more retesting opportunities on skill tests and that the Academy had overlooked one of the white females’ repeated failures on driving tests. She also explained that white male officers had received retraining opportunities between tests and retests and she had received no such support. She was also the only member of the class who had been terminated from the program.

The State claimed that other white and male members of the class had been dismissed for failing to pass tests, but the official record indicated that they had “resigned” when Davis had been “terminated.” The state also argued that even if disparate treatment existed between genders or races, the treatment towards Davis was justified by her repeated failure on an important skills test.

The Court explained that Davis had alleged facts that were sufficient to support the idea that discrimination had occurred, but that the State had also provided what appeared to be a legitimate reason for terminating Davis’ training. It went on to explain that the deciding question was whether or not Davis had alleged facts that could suggest that the State’s legitimate reason for terminating her was really just a pretext for discrimination.

The Court further explained:

An employee may satisfy the pretext prong by offering sufficient evidence to create a genuine issue of material fact either (1) that the defendant’s reasoning is pretextual or (2) that although the employer’s stated reason is legitimate, discrimination nevertheless was a substantial factor motivating the employer.

In assessing the evidence at trial, the Court reasoned that although the Academy Captain was the one who made the decision to terminate Davis, the evidence suggested that the Captain relied heavily on the supervisor’s advice in making that decision. The evidence could also suggest that the supervisor’s recommendation was substantially motivated by discrimination. Therefore, although failing multiple tests was a legitimate reason for terminating the cadet, it was possible that the State’s decision to terminate the Cadet was substantially motivated by discrimination. Ultimately, the Court decided that the Cadet had provided enough facts to raise a question of fact about whether the State had terminated her based on gender or race and sent the case back to trial.

A factor that very likely persuaded the Court to reverse in this case is the fact that prior to entering the Academy, while she was in the Pre-Academy Trooper Cadet Program, and in the first few months of training at the Academy, the Cadet was a top performer who received regular praise for her knowledge of state statutes and her communication, skills, and judgment.  In addition to the fact that she was the only African-American, and one of only three females, the fact that she was so successful prior to her entry into the Academy, and apparently did quite well on other skills tests during the Academy, certainly raises questions as to whether the State terminated her lawfully.  The Court took a very expansive view of the evidence and ultimately decided that because there was at least a genuine dispute of the material facts, the Cadet should have her day in court.