Collaboration in Civic Spheres

Court says Kirkland firm must answer age bias firing charge

by Matt Rosenberg March 22nd, 2012

In a ruling published this week the Washington State Court of Appeals reversed a “summary judgement” signed by King County Superior Court Judge Douglass A. North that a yard foreman working in Dutch Harbor, Alaska for a Kirkland, Wash.-based marine services firm essentially had no basis for claiming he was fired due to age discrimination – rather than intoxication and disorderly conduct, as his employer claimed. The decision by Division One of the state appeals court means that Craig Rice of Dutch Harbor, Alaska, will be able to proceed in King County Superior Court in Washington state with his age bias lawsuit against Offshore Systems, Inc. (OSI), headquartered at 12019 76th Place NE in Kirkland.

Rice started working for OSI in 1991 at the age of 43 as a stevedore on the Alaskan docks, and was promoted over time to forklift driver, night foreman, and yard foreman at at OSI’s Dutch Harbor full-service marine support terminal in Unalaska, Alaska serving the North Pacific and Bering Sea fishing fleets. The facility provides loading, unloading, warehousing, cold storage and bulk fuel distribution. Rice earned not only promotions but pay raises and bonuses, according to the Appeals Court’s statement of facts.

Rice called “old goat” and “too old to stay on the job” by young supervisor
The court also noted evidence showed a younger supervisor named Jared Davis was hired in 2000 at about age 25 as OSI’s operations manager and had given Rice high marks in performance evaluations. But Davis changed his behavior toward Rice in 2005 – and in front of other employees began making derogatory remarks about Rice’s age, calling him an “old goat,” and saying, “you’re too old to stay on the job.” Davis tried to assign Rice’s job to a younger employee, and the pattern of age-based verbal harrassment continued through 2007. One employee supervised by Rice testified he heard other workers “comment Rice was going senile,” but was unsure if those were jokes or not.

Senior managers not on site when fire broke out, against company rules
On a December night in 2007 a fire broke out on a vessel of one of OSI’s customers. The boat was tied to another vessel at the company’s main dock at Dutch Harbor. In violation of the company’s own policy, two senior managers had not remained on site, as was required at all times. Assistant Yard Foreman Nicholas Reed heard about the fire and came to the home of Rice, who was off-duty, sleeping on the couch, and had consumed alcohol previously in the evening. Rice testified later that Reed was “disoriented and in a state of panic” and “repeatedly asked for (Rice’s) instruction on what to do.”

Conflict at the fire site
Rice and Reed came to the scene and Rice took charge, including getting into a vocal conflict with local fire department officials whom he felt were not moving aggressively enough to contain the on-board fire adjacent to the loading and fueling facility. He also exchanged words with a female police officer at the scene, about his authority to have the burning boat towed away from the dock and doused by a fireboat, to avoid risk of a bigger fire. That did not occur, in the end.

Reed later testified he thought Rice was intoxicated on the scene of the fire. Reed, considerably younger and less experienced than Rice, according to the appeals court, was also given Rice’s job after Rice was fired by Davis following the fire incident.

Rice’s supervisor Davis looked into the incident after returning from vacation, and called Rice in early January 2008 to tell him he was fired because he tried to cut the mooring lines on the boat afire, which Rice said he could not have done because “they were several inches in diameter.”

Reversed and remanded
Although the King County court agreed to dismiss the case at an early stage by granting OSI’s summary judgement motion, Rice appealed in February, 2011. The appeals court reversed that decision and will remand, or send the case back to the county court, for further proceedings on Rice’s age bias claim. The appellate judges found that Rice not only met the burden of establishing an on-the-face case of possible age discrimination, but additionally he has cast enough preliminary doubt on the other reasons given for his dismissal, to warrant a closer look at his initial claim of age bias in the firing. The appeals court stressed several points:

  • There was ample of evidence of age-related harassment against Rice, and when Davis fired Rice in December, 2007, he “immediately replaced him with a much younger, less experienced employee – Reed.”
  • “…OSI offered inconsistent reasons for terminating Rice’s employment, further suggesting that none of the reasons given was the real reason for his termination.” These included allegations, delivered in a letter, which came after Davis initially had told Rice he would be fired for trying to cut the lines to the burning boat – that in fact he was being discharged because he had: been intoxicated; set a bad example for fellow employees; harassed public safety officials; created bad relations with customers; and harassed fellow employees for many years. The appeals court not only found questionable the shifting reasons given, but also found there was scant or no evidence on the last two allegations.

The opinion was written by Judge Linda Lau, with Judges Anne Ellington and Ann Schindler concurring. All three formerly served as King County Circuit Court judges.

OSI’s General manager Jeff Savage declined to comment on the appeals court ruling, referring questions to attorney Matthew Crane, of the Seattle law firm Bauer, Moynihan and Johnson, who has not yet responded to a reporter’s message. Rice was represented by Donald Milhurst and Mark Davis of the Badgley Mullins Law Group in Seattle.

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