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Friday, December 14, 2018  Spokane, Washington  Est. May 19, 1883
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Washington justices reinstate Microsoft retaliation case

UPDATED: Thu., Nov. 29, 2018, 4:43 p.m.

A Washington state Supreme Court ruling has found that Microsoft managers likely knew of the discrimination complaint and legal action taken by former employee Dawn Cornwell in 2005, before they gave her a poor performance review and laid her off in 2012. (AP)
A Washington state Supreme Court ruling has found that Microsoft managers likely knew of the discrimination complaint and legal action taken by former employee Dawn Cornwell in 2005, before they gave her a poor performance review and laid her off in 2012. (AP)

Washington state’s Supreme Court has ruled in favor of a former Microsoft employee who accused the company of laying her off in retaliation for taking prior legal action in a gender-discrimination complaint.

The high court sent the case back to trial, reversing an appeals court ruling that found there wasn’t enough evidence the legal action caused her dismissal.

Microsoft managers likely knew of the discrimination complaint and legal action taken by former employee Dawn Cornwell in 2005, before they gave her a poor performance review and laid her off in 2012, according to the 8-1 ruling published Thursday. The court said it was enough that Cornwell had shown circumstantial evidence connecting the two events.

The ruling may set a precedent that employees no longer have to prove company officials had “actual knowledge” of a complaint at the time they took punitive actions against them, said Alexander Higgins, one of Cornwell’s lawyers. The former standard had allowed companies to win by denying that knowledge, he said.

“Now, that shifts dramatically,” Higgins said. “It doesn’t allow employers to just deny awareness of a discrimination complaint.”

Microsoft has faced criticism for alleged gender discrimination and a perceived culture of sexism in the past. A group of female employees is currently pursuing a class-action lawsuit against the company for alleged widespread gender discrimination. Previous Seattle Times reporting found Microsoft was the most male-dominated of the largest U.S. tech companies and that women felt the company handled grievances poorly.

“The court did not rule on whether retaliation actually took place. There was no retaliation and we are confident the trial court will agree,” Microsoft spokesman Stephen Carter said in an emailed statement. “We do not tolerate retaliation and we make it a priority that every employee at Microsoft feels empowered to raise concerns.”

Cornwell was hired by Microsoft in 1997. In 2004, she expressed concern to her supervisor’s manager that her performance review might suffer because the supervisor was allegedly dating one of her peers and demonstrating favoritism, according to court documents. She was assigned to a new role.

In 2005, Cornwell began reporting directly to her previous supervisor’s manager. She again became concerned she would not be evaluated fairly and sent an anonymous survey to her peers, who provided positive feedback about her performance. She sent the results to her new manager, who ended up giving her a negative performance review.

Cornwell refused to sign the review and hired an attorney to sue the company for alleged discrimination. She reached a confidential settlement with the company in 2005 and no longer had to work under the supervisor. She transferred to a different department and received promotions in 2008 and 2011.

In 2011, Cornwell’s new manager asked her to be a mentor for someone who reported to the same supervisor who was the subject of the 2005 settlement. She told her manager she could not because of the earlier legal action and declined to discuss the matter further, citing confidentiality of the legal action she’d previously taken against the company. The manager discussed the matter with Cornwell again during a 2012 review and disclosed contacting the company’s human-resources department to get more information, according to court documents.

Cornwell’s manager and a more senior supervisor gave her the lowest possible performance score later that year, even though other managers disagreed. Cornwell had received positive peer reviews earlier that year and good performance ratings and promotions during previous years.

Cornwell was among a group of employees who were laid off soon after, and was denied access to her performance ratings. She tried to work for Microsoft again, returning as a temporary employee through a job agency in 2013, and by applying for work directly with the company. She found out from a hiring manager that she could not be rehired because of poor final performance ratings during her previous employment with the company, according to the ruling.

She then filed a lawsuit alleging Microsoft retaliated against her in violation of the state’s anti-discrimination law. The trial court sided with Microsoft, ruling there wasn’t evidence the manager who gave Cornwell a poor score knew about the initial legal action and settlement.

The Court of Appeals agreed. The Supreme Court’s ruling overturns that decision, finding that Cornwell presented sufficient evidence to link her initial legal action to the poor review she received years later and the company’s decision to lay her off.


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