Certification from the United States District Court for the Eastern District of Washington in N. John Kilian, et al., Plaintiffs, v. Mitch Atkinson, et al., Defendants, 147 Wash. 2d 16

Smith, J. — The United States District Court for the Eastern District of Washington, in an action pending in that court, by order dated October 9, 2001, certified to this court one question of state law asking whether an age discrimination claim can be asserted by an independent contractor under RCW 49.60.030. This court accepted certification under the Federal Court Local Law Certificate Procedure Act, RCW 2.60.010-.900, and Washington Rule of Appellate Procedure (RAP) 16.16.

QUESTION PRESENTED The sole question in this case is the certified question whether an age discrimination claim can be asserted by an independent contractor under RCW 49.60.030. STATEMENT OF FACTS In this opinion the court is concerned only with a claim of age discrimination in a case pending in the United States District Court for the Eastern District of Washington. Plaintiffs N. John Kilian and Lyn Kilian, husband and wife, were independent contractors who operated a bumper boat business under a concession contract with the City of Chelan (City) from 1984 through 1999.

The initial contract was for a 10-year period beginning March 1, 1984 and ending February 28, 1994. After 10 years, the Kilians and the City renewed their contract for an additional 5 years. There were successive renewals of the contract until February 10, 2000, when the Chelan City Council voted to deny any further extensions of the contract.

Plaintiffs brought an action in the United States District Court for the Eastern District of Washington under 42 U.S.C. § 1983 for violation of their free speech rights under the First Amendment of the United States Constitution; for violation of their free speech rights under

article I,

section 5 of the Washington State Constitution; and for age discrimination in violation of Washington statutes RCW 49-.60.030 and RCW 49.44.090. Named as defendants in the suit were Mitch Atkinson, Mayor of the City of Chelan, his wife Jane Doe Atkinson, and the City of Chelan. The free speech matters, which relate to a claim that Defendant Mitch Atkinson and the Chelan City Council deprived Plaintiffs of their right to speak at a public meeting of the Council on February 10, 2000, are not before this court under the certified question.

With regard to the claims of age discrimination, Plaintiffs contend that when the City denied extension of their contract for the bumper boat concession on February 10, 2000, Plaintiff N. John Kilian was 60 years old and that the City renewed a lease agreement with a go-kart concessionaire who was substantially younger than he. Plaintiffs claim that Mr. Kilian’s age was a substantial factor in the City’s refusal to renew the bumper boat concession agreement. By order dated October 9, 2001, the Honorable Alan A. McDonald, presiding over the case in the United States District Court, granted Defendants’ motion for

summary judgment on Plaintiffs’ age discrimination claim under RCW 49.44.090 “based strictly on the applicable law, without regard to the factual record.” With regard to the age discrimination claim under RCW 49.60.030, the District Court asked this court to “answer whether an age discrimination claim can be asserted by an independent contractor under that statute.” The order concluded that: Defendants’ Motion for

Summary Judgment... is DENIED with respect to plaintiffs’ freedom of speech claims .... Defendants’ Motion for

Summary Judgment... is GRANTED with respect to plaintiffs’ age discrimination claim pursuant to RCW 49.44.090. Defendants’ Motion for

Summary Judgment... is STAYED with respect to plaintiffs’ age discrimination claim pursuant to RCW 49.60.030 pending response from the Washington Supreme Court on the certified question. DISCUSSION Statutory Construction This court in interpreting a statute ascertains and gives effect to the intent and purpose of the Legislature in creating it. If a statute is clear on its face, its meaning is to be derived from the language of the statute alone.

This court has repeatedly held that an unambiguous statute is not subject to judicial construction and has declined to add language to an unambiguous statute even if it believes the Legislature intended something else but did not adequately express it. A statute is ambiguous if it can be reasonably interpreted in more than one way, but it is not ambiguous simply because different

interpretations are conceivable. If a statute is ambiguous, this court resorts to principles of statutory construction, legislative history, and relevant case law to assist in interpreting it. When a statute is ambiguous, this court must construe the statute in order to effectuate the intent of the Legislature.

In construing a statute, courts should read it in its entirety, instead of reading only a single sentence or a single phrase.* “ ‘Each provision must be viewed in relation to other provisions and harmonized, if at all possible ....’ ” Statutes must be construed so that all the language is given effect and no portion is rendered meaningless or superfluous. The court must also avoid constructions that yield unlikely, absurd or strained consequences. Courts may not read into a statute matters that are not in it and may not create legislation under the guise of interpreting a statute.

Washington Law Against Discrimination The Washington Law Against Discrimination,

chapter 49.60 RCW, under RCW 49.60.010 declares as a civil right the right to be free from discrimination because of “race, creed, color, national origin, families with children, sex, marital status, age, or the presence of any sensory, mental, or physical disability, or the use of a trained dog guide or service animal by a disabled person.” (Emphasis added.) Another statute, RCW 49.44.090, prohibits age discrimination in employment, referring to an “individual who is forty years of age or older.” The certified question, though, refers specifically and only to RCW 49.60.030, which states, in part, in subsections (1) and (2):

(1) The right to be free from discrimination because of race, creed, color, national origin, sex, or the presence of any sensory, mental, or physical disability ... is recognized as and declared to be a civil right. This right shall include, but not be limited to: (

a) The right to obtain and hold employment without discrimination;

(2) Any person deeming himself or herself injured by any act in violation of this

chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this

chapter or the United States Civil Rights Act of 1964 .... (Emphasis added.) Age is not included in the listing of protected classes under RCW 49.60.030(1). The statute is clear and unambiguous. Its language is not susceptible to more than one reasonable

interpretation. In Marquis v. City of Spokane, this court, although only in a footnote, observed that the Legislature expressly limited its specification of protected classes in RCW 49.60.030(1) to race, creed, color, national origin, sex, and disability. The Legislature refers to age discrimination in employment only in RCW 49.60.180 and RCW 49.44.090. Plaintiffs acknowledge that on its face RCW 49.60.030 does not include age in its listing of protected classes.

They argue that the broad language of RCW 49.60.030(2), which provides a civil cause of action and remedy for persons injured by “any act in violation of this chapter,” makes RCW 49.60.030 ambiguous and subject to judicial construction by this court. Relying on the Legislature’s stated purpose in RCW 49.60.010, the language in RCW 49.60.020, and this court’s decision in Marquis, Plaintiffs urge this court to add “age” to the protected classes listed in RCW 49.60.030(1). Plaintiffs misinterpret both the statute and this court’s decision in Marquis. The Legislature’s broad policy statement for

chapter 49.60 RCW does not, standing alone, support Plaintiffs’ argument that age is included among the protected classes listed in RCW 49.60.030(1).

The Law Against Discrimination includes a policy statement proclaiming that discriminatory practices are “a matter of state concern.” The Legislature has made it clear that the State has an obligation to eliminate and prevent discrimination because it “menaces the institutions and foundation of a free democratic state.” Under the heading “Purpose of chapter,” RCW 49.60.010 provides, in part, that: The legislature hereby finds and declares that practices of discrimination against any of its inhabitants because of race, creed, color, national origin, families with children, sex, marital status, age, or the presence of any sensory, mental, or physical disability . . . are a matter of state concern, that such discrimination threatens not only the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state. . . . (Emphasis added.) A declaration of policy in a legislative act, however, serves only as an important guide in determining the intended effect of the operative sections.

In reading the applicable statutes together to determine the legislative intent and to achieve a harmonious total statutory scheme, it becomes clear that the Legislature referred to age discrimination only in RCW 49.44.090 and RCW 49.60.180 and did not intend to include it in the protected classes listed in RCW 49.60.030(1). Simply because “age” is included in the statement of purpose under RCW 49.60.010 does not support insertion by the court of “age” in the list of protected classes specified in RCW 49.60.030(1).

If “age” is to be added to the statute, it must be added by the Legislature, which, despite numerous amendments since the statute was first enacted in 1949, has not done so. That a statutory cause of action for age discrimination is available only under RCW 49.44.090 and RCW 49.60.180 is further supported by the language in RCW 49.60.205, which provides that: No person shall be considered to have committed an unfair practice on the basis of age discrimination unless the practice violates RCW 49.44.090.

It is a defense to any complaint of an unfair practice of age discrimination that the practice does not violate RCW 49.44.090. (Emphasis added.) By its language, RCW 49.60.205 expresses a limitation upon age discrimination claims. Under that statute, the Legislature created a defense to an age discrimination claim if the plaintiff cannot also establish a claim under RCW 49.44.090. In this case, Defendants argue that if the Legislature had intended to allow an age discrimination claim under RCW 49.60.030(1), it would have included a reference to RCW 49.60.030 in RCW 49.60.205.

Amicus Curiae Washington State Trial Lawyers Association Foundation asks this court to answer the certified question in the affirmative, citing gratuitous language by the court in Human Rights Commission v. Cheney School District Number 30 which, without discussion, stated that the petitioner could sue for damages for age discrimination under RCW 49.60.030.

This court in Cheney did observe that the Legislature has provided no authority for the Washington State Human Rights Commission to award damages for humiliation and mental suffering, but that “[a] person who has suffered humiliation caused by discrimination may seek relief through a civil action as provided for under RCW 49-.60.030.” The court then stated that “a hearing tribunal of the Washington State Human Rights Commission has no authority to award compensation for humiliation and mental suffering caused by unlawful age discrimination.” In its opinion, the court discussed RCW 49.60.250 and RCW 49.60.225 at length, but stated without explanation or citation of precedent or other statute that the petitioner “who suffered damages by humiliation and mental suffering caused by age discrimination [ ] is not without a remedy.

She can sue for damages under RCW 49.60.030 which specifically grants a civil remedy for anyone injured by

an act of discrimination.” The court mentioned RCW 49-.60.030 in only one line of its conclusion without further reference or discussion. As the court stated in Cheney, “[t]he sole issue in the . . . case [was] whether a hearing tribunal of the Washington State Human Rights Commission . . . has authority to award compensation for humiliation and mental suffering caused by unlawful age discrimination.

We hold it has no such authority.” It is obvious from a reading of the case that, despite two gratuitous references to RCW 49.60.030 in the opinion, the court did not intend to add “age” to the protected classes identified in RCW 49.60.030 when the Legislature, despite at least 10 amendments since 1949, has chosen not to do so. Plaintiffs also contend that RCW 49.60.020 requires that RCW 49.60.030(2) be construed to provide a cause of action to an independent contractor for age discrimination. RCW 49.60.020 provides: The provisions of this

chapter shall be construed liberally for the accomplishment of the purposes thereof. Nothing contained in this

chapter shall be deemed to repeal any of the provisions of any other law of this state relating to discrimination because of race, color, creed, national origin, sex, marital status, age, or the presence of any sensory, mental, or physical disability, other than a law which purports to require or permit doing any act which is an unfair practice under this chapter.

Nor shall anything herein contained be construed to deny the right to any person to institute any action or pursue any civil or criminal remedy based upon an alleged violation of his or her civil rights. (Emphasis added.) The Legislature has chosen to protect employees from age discrimination only under RCW 49.44.090 and RCW 49.60.180 and merely makes an incidental reference to age under RCW 49.60.020. RCW 49.60.030(2) simply provides a cause of action and remedy for a violation of the law against discrimination in consonance with the language in RCW 49.60.030(1). The legislative history of

chapter 49.60 RCW does not support creation of a statutory cause of action for independent contractors for age discrimination under RCW 49-.60.030. The statute was first enacted in 1949. The Legislature has since amended RCW 49.60.030 at least 10 times. At none of those times did the Legislature amend the statute to add “age” to the protected classes listed under RCW 49.60.030(1). Plaintiffs point out that RCW 49.60.020 provides that Washington’s law against discrimination is to be liberally construed to serve its purposes. In liberally construing a statute, this court will view with caution any construction that would narrow the coverage of the law. Even under liberal construction of

chapter 49.60 RCW, this court will not adopt a strained or unrealistic

interpretation of the statutes in that chapter. Adding “age” to the list of protected classes under RCW 49.60.030(1) would result in a strained

interpretation of the statute, and the court would then be engaging in legislation. Neither the statutory scheme nor the legislative history supports reading into RCW 49.60.030 a statutory cause of action for an independent contractor claiming age discrimination when age is quite obviously not included in the list of protected classes in that statute. Plaintiffs’ reliance on Marquis is misplaced because that case is readily distinguishable from this case.

In Marquis, this court interpreted RCW 49.60.030(1) to recognize the civil right of an independent contractor to be free from discrimination based on sex, race, national origin, religion, or disability in the making or performing of a contract for personal services. The court’s decision in Marquis was limited to the protected classes listed in RCW 49.60.030(1). Age, however, is not listed as a protected class under that statute.

In fact, the opinion in Marquis makes it clear that under RCW 49.60.030, an independent contractor has the initial burden of establishing a prima facie case: that the plaintiff was a member of a protected class and not merely that the plaintiff was an independent contractor. This court’s decision in Marquis does not support creation of a cause of action for independent contractors for age discrimination under RCW 49.60.030(1) because age is not one of the protected classes listed in it.

SUMMARY AND CONCLUSIONS The sole issue in this case is the question certified from the United States District Court for the Eastern District of Washington asking this court to answer “whether an age discrimination claim can be asserted by an independent contractor under” RCW 49.60.030. Our answer is that such a claim cannot be asserted by an independent contractor under that statute. Under RCW 49.60.030(1), which lists protected classes under the statute, “age” is not included.

The Legislature has limited its specification of protected classes in that statute to race, creed, color, national origin, sex, and disability. The only legislative reference to age discrimination in employment is in RCW 49.60.180 and RCW 49.44.090. The Legislature in RCW 49.60.205 has provided that “[n]o person shall be considered to have committed an unfair practice on the basis of age discrimination unless the practice violates RCW 49.44.090.” It makes no reference to RCW 49.60.030, which specifies protected classes and does not include “age” as one. The statutory scheme for

chapter 49.60 RCW, the Washington Law Against Discrimination, does not support adding “age” to the protected classes listed under RCW 49-.60.030(1). Neither does it support reading into the statute a cause of action for an independent contractor claiming age discrimination. Inclusion of “age” in the Legislature’s statement of purpose in RCW 49.60.010 also does not support adding “age” to the protected classes listed by the Legislature under RCW 49.60.030(1). The Law Against Discrimination,

chapter 49.60 RCW, is not ambiguous, nor is the

section referred to in the certified question, RCW 49.60.030, ambiguous. This court in interpreting a statute ascertains and gives effect to the intent and purpose of the Legislature in creating it. If a statute is clear on its face, its meaning is to be derived from the language of the statute alone. An unambiguous statute is not subject to judicial construction. This court will not add language to an unambiguous statute even if it believes the Legislature intended something else but did not adequately express it.

In determining legislative intent, the court looks at the entire statute, and not merely at a single sentence or a single phrase. Where possible, statutes should be read together to determine the legislative purpose to achieve a harmonious total statutory scheme which maintains the integrity of those statutes. The Washington Law Against Discrimination,

chapter 49.60 RCW, was first enacted in 1949. The Legislature has since amended RCW 49.60.030 at least 10 times between 1957 and 1997. At none of those times did it amend the statute to add “age” to the protected classes listed in it. If we were to add “age” to the list of protected classes under RCW 49.60.030, we would be inappropriately engaging in legislation. An amendment to add “age” to that statute is a matter solely for the Legislature. Despite at least 10 amendments since 1949, it has chosen not to do so.

We answer the certified question from the United States District Court for the Eastern District of Washington in the negative: an age discrimination claim cannot be asserted by an independent contractor under RCW 49.60.030. Bridge and Owens, JJ., concur. There being no trial record before this court, for contextual purposes only, the facts stated are based substantially upon the United States District Court “Order Denying

Summary Judgment In Part, Inter Alia,” Sections I, II, and III D. No conclusion is intended on any facts stated. Actual facts must be determined by the trier of fact in the United States District Court. Under the contract, the Plaintiffs were not employees of the City of Chelan, but were self-employed proprietors of a concession business. Limstrom v. Ladenburg, 136 Wn.2d 595, 607, 963 P.2d 869 (1998). State v. Keller, 143 Wn.2d 267, 276, 19 P.3d 1030 (2001), cert. denied, 534 U.S. 1130 (2002). Id. Wash. State Coalition for the Homeless v.

Dep’t of Soc. & Health Servs., 133 Wn.2d 894, 904, 949 P.2d 1291 (1997); see also Marquis v. City of Spokane, 130 Wn.2d 97, 107, 922 P.2d 43 (1996). Keller, 143 Wn.2d at 276. Cockle v. Dep’t of Labor & Indus., 142 Wn.2d 801, 808, 16 P.3d 583 (2001). Davis v. State ex rel. Dep’t of Licensing, 137 Wn.2d 957, 963, 977 P.2d 554 (1999). Keller, 143 Wn.2d at 277. Buchanan v. Simplot Feeders Ltd. P’ship, 134 Wn.2d 673, 682, 952 P.2d 610 (1998). Keller, 143 Wn.2d at 277 (quoting State v. Thorne, 129 Wn.2d 736, 761, 921 P.2d 514 (1996)). Id. Davis, 137 Wn.2d at 963. Progressive Animal Welfare Soc’y v.

Univ. of Wash., 114 Wn.2d 677, 688, 790 P.2d 604 (1990). Associated Gen. Contractors v. King County, 124 Wn.2d 855, 865, 881 P.2d 996 (1994). 130 Wn.2d 97, 106, 922 P.2d 43 (1996). RCW 49.60.010. Oliver v. Harborview Med. Ctr., 94 Wn.2d 559, 565, 618 P.2d 76 (1980). 97 Wn.2d 118, 130, 641 P.2d 163 (1982). Id. Id. Id. at 124. Id. at 119. RCW 49.60.030 was amended in 1957, 1969, 1973, 1974, 1977, 1979, 1984, 1993, 1995 and 1997.

For example, see Laws of 1993, ch. 69, § 1 (adding “disability’) and ch. 510, § 3 (adding “disability or the use of a trained guide dog or service dog by a disabled person”); Laws of 1997, ch. 271, § 2 (changing “guide dog” to “dog guide” and changing “service dog” to “service animal”). Marquis, 130 Wn.2d at 108. Bird-Johnson Corp. v. Dana Corp., 119 Wn.2d 423, 427, 833 P.2d 375 (1992). Marquis, 130 Wn.2d at 112-13. Id. at 113.