Court of Appeals Division III
                               State of Washington

                            Opinion Information Sheet

Docket Number:       20699-8-III
Title of Case:       Nan Miguel, et al
                     v.
                     Charles Guess, et al
File Date:           07/18/2002


                                SOURCE OF APPEAL
                                ----------------
Appeal from Superior Court of Whitman County
Docket No:      96-2-00190-1
Judgment or order under review
Date filed:     05/17/2001
Judge signing:  Hon. Richard W. Miller


                                     JUDGES
                                     ------
Authored by Frank L. Kurtz
Concurring: Kenneth H Kato
            John A. Schultheis


                                COUNSEL OF RECORD
                                -----------------
Counsel for Appellant(s)
            Richard D. Reed
            Attorney At Law
            1218 3rd Ave Ste 1500
            Seattle, WA  98101

            Judith A. Lonnquist
            Law Offices of Judith A. Lonnquist
            1218 3rd Ave #1500
            Seattle, WA  98101

Counsel for Respondent(s)
            Michael J. McMahon
            Etter McMahon Lamberson & Clary
            Ste 1600
            421 W Riverside Ave
            Spokane, WA  99201-0401

            Susan W. Troppmann
            Etter McMahon Lamberson & Clary
            421 W Riverside Ave #1600
            Spokane, WA  99201-0402

            James B. King
            Keefe King & Bowman
            1102 Wa Mutual Financ Ctr
            W.601 Main
            Spokane, WA  99201

            Christopher J. Kerley
            Keefe King & Bowman
            Wa Mutual Financial Ctr
            W 601 Main Ste 1102
            Spokane, WA  99201

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

NAN MIGUEL,                                      ) No. 20699-8-III
                                                 )
               Plaintiff,                        )
                                                 ) Division Three
and MARY JO DAVIS,                               ) Panel Seven
                                                 )
               Appellant,                        )
                                                 )
          v.                                     ) PUBLISHED OPINION
                                                 )
CHARLES GUESS, and PULLMAN                       )
HOSPITAL DISTRICT NO. 1-A,                       )
d/b/a PULLMAN MEMORIAL                           )
HOSPITAL,                                        )
                                                 )
               Respondents.

     KURTZ, J. - Mary Jo Davis sued Pullman Hospital District No. 1-A (the
'Hospital') and Charles Guess, M.D., after she was dismissed from her
position in the Hospital's radiology department.  Ms. Davis believes that
she was fired because she is a lesbian.  In her lawsuit, she contended that
public employment discrimination based solely on sexual orientation is
irrational and actionable under 42 U.S.C. sec. 1983 as a violation of the
Equal Protection Clause of the United States Constitution.  Her claims were
dismissed on summary judgment.  We reverse the dismissal and remand for
trial Ms. Davis's sec. 1983 claims against the Hospital and Dr. Guess.  In
so doing, we hold that Ms. Davis has raised material issues of fact with
respect to whether (1) the Hospital and Dr. Guess are state actors for the
purposes of sec. 1983, and (2) they denied her equal protection under the
laws.  But, we affirm the dismissal of her claim based upon public policy
because her discharge did not violate a clear mandate of Washington public
policy.
FACTS

     In July 1993, Mary Jo Davis was hired by Pullman Memorial Hospital to
work as a sonographer in its radiology department.  The director of that
department was Dr. Charles Guess, a radiologist with staff privileges.  Ms.
Davis's immediate supervisor was Nan Miguel, who managed the radiology
department.
     Ms. Davis and Dr. Guess did not enjoy a good working relationship.
Ms. Davis is a lesbian.  Before she was hired, Dr. Guess told Ms. Miguel
that the Hospital should not hire Ms. Davis because her homosexuality might
cause trouble.  On a number of occasions, Dr. Guess referred to Ms. Davis
as a fucking faggot, a fucking dyke, and a queer.  Dr. Guess was also heard
to say: ''I don't think that fucking faggot should be doing vaginal exams
and I'm not working with her.''  Clerk's Papers (CP) at 1367.  He
reaffirmed this sentiment in a statement to Scott Adams, the Hospital
Administrator, overheard by Dr. James Harrington, an emergency room
physician.  According to Dr. Harrington, Dr. Guess stated ''I don't think a
queer should be doing vaginal exams.''  CP at 1367.  And, Mr. Adams replied
with words to the effect of: ''I hear what you're saying.  We need to do
something about it and we will.''  CP at 1367.
     On one occasion, Dr. Guess treated the department staff to ice cream.
He told everyone that they were celebrating because Ms. Davis was not at
the hospital that day.  He remarked that it was gay pride week, and Ms.
Davis must be off marching somewhere.  Although Ms. Davis's co-workers
laughed in response to Dr. Guess's statement, one observer to this event
reported that Dr. Guess was not joking.
     Dr. Guess's reservations about Ms. Davis were not limited to her
lifestyle.  He told other employees that Ms. Davis was not properly trained
and lacked the necessary experience to be performing ultrasounds.
Specifically, he stated that when Ms. Miguel stopped assisting Ms. Davis
with the scans, 'she was lost in what she was doing.'
CP at 145.  In his deposition, Dr. Guess identified other physicians who
had expressed concerns about Ms. Davis's professional skills.  As the
director of the radiology department, Dr. Guess was responsible for the
overall care patients received in his department.
     In early November 1994, Ms. Miguel sent a memorandum to Mr. Adams
objecting to Dr. Guess's treatment of Ms. Davis.  According to Mr. Adams,
Ms. Miguel informed him that Dr. Guess ''was not cooperating with {Ms.
Davis} in her being able to perform her duties as an ultrasonographer.
That he was critical of her work, that he was uncooperative in trying to
provide her necessary information to perform her duties and that he was
critical of her lifestyle.''  CP at 2341.  Mr. Adams further stated that
other employees of the radiology department confirmed these allegations in
a department meeting.  Later that month, Ms. Davis sent a letter to Mr.
Adams, Ms. Miguel, and the Hospital complaining about the way in which Dr.
Guess treated her.
     At the end of November 1994, Ms. Miguel was placed on paid
administrative leave.  Mr. Adams explained in a memorandum to Ms. Miguel
that she was being placed on leave while the Hospital determined how to
restructure the radiology department to create a cohesive group.  She was
informed that depending upon what the Hospital decided, she might be asked
to return in a staff role, a group leader role, or her position might be
terminated.  Ultimately, the Hospital eliminated Ms. Miguel's position and
she lost her job.
     As a result of Ms. Davis's and Ms. Miguel's complaints, Mr. Adams and
Dr. Margaret Miller, the Hospital's Chief of Medical Staff, met with Dr.
Guess.  They informed him that his disparaging comments about Ms. Davis,
specifically his references to her lifestyle, would not be tolerated by the
Hospital.  Mr. Adams advised Dr. Guess that no formal disciplinary action
through the established medical staff process would be necessary unless the
behavior continued.  According to Mr. Adams, Dr. Guess agreed to
discontinue the behavior.
     After his meeting with Mr. Adams and Dr. Miller, Dr. Guess decided
that one way to comply with the Hospital's demand that he change his
treatment of Ms. Davis would be to minimize his contact with her.  Dr.
Guess announced that he would begin to perform his own ultrasounds.  The
immediate impact of this decision was to reduce the amount of work for the
radiology technologists.  The Hospital responded by reducing Ms. Davis's
hours from full time to three-quarters time.
     Ms. Davis then retained counsel to file a grievance regarding her
reduction in work hours.  In preparing for her grievance hearing, Ms. Davis
made a photocopy of documents from two patient files in an attempt to prove
that her reduction in work hours was the result of Dr. Guess's animus
regarding her sexual orientation.
     Mr. Adams informed Ms. Davis that her actions in copying information
from patient files were in violation of the Hospital's patient
confidentiality policies, and Ms. Davis was given a three-day suspension.
Mr. Adams sent Ms. Davis a second letter, in which he informed her that
after further consideration, he decided that her acts constituted serious
offenses under the Hospital's policies, and she was terminated.
     Ms. Davis appealed to the Board of Commissioners (the 'Board').  The
Board found that the termination was justified.  The Board commented that
Ms. Davis breached the confidentiality of patient files and had become a
disruptive employee.
     Procedural History.  Ms. Davis filed a complaint against the Hospital
and Dr. Guess in November 1996.  In due course, Dr. Guess and the Hospital
each moved for summary judgment.  The court ultimately dismissed all of Ms.
Davis's claims against Dr. Guess.  The court also dismissed all claims
against the Hospital, except for the claims for wrongful discharge in
breach of promises made in the employee handbook and violation of due
process.
     Ms. Davis sought discretionary review from the Washington Supreme
Court of the court's decision to dismiss her equal protection and public
policy claims against the Hospital and Dr. Guess.  The Hospital also sought
review of the court's refusal to dismiss the employee handbook and due
process claims.
     A Supreme Court commissioner denied review, stating that it did not
appear that the case would be significantly streamlined by an early
consideration of the equal protection and public policy issues.
Additionally, the commissioner stated that Ms. Davis did not demonstrate
that the superior court had committed obvious or probable error in
dismissing her claims.
     In response, Ms. Davis moved the superior court to dismiss with
prejudice her employee handbook and due process claims in order to perfect
her appeal as a matter of right from a final judgment.  The court granted
the motion and this appeal followed.  In it, Ms. Davis contends the
superior court erred when it dismissed her equal protection claims against
both Dr. Guess and the Hospital, and her claim against the Hospital that
its actions violated Washington public policy.
ANALYSIS
     Standard of Review.  In reviewing a summary judgment, we engage in the
same inquiry as the trial court.  Snohomish County v. Anderson, 124 Wn.2d
834, 843, 881 P.2d 240 (1994).  The facts and all reasonable inferences
from the facts are construed in favor of the nonmoving party, Ms. Davis.
Id.  We do not weigh the evidence or determine the truth of the matter; the
only question is whether there is a genuine issue for trial.  A motion for
summary judgment should be granted only if the court concludes that
reasonable persons would reach but one conclusion based on the facts and
reasonable inferences therefrom.  Id.
     42 U.S.C. sec. 1983.  Ms. Davis claims the Hospital and Dr. Guess
violated
42 U.S.C. sec. 1983.  To establish a cause of action under 42 U.S.C. sec.
1983, Ms. Davis must show: (1) the defendant violated a federal
constitutional or statutory right, and
(2) the defendant acted under color of state law.  Here, Ms. Davis argues
that the Hospital and Dr. Guess violated the Equal Protection Clause of the
United States Constitution.  In considering this claim, we first address
whether Ms. Davis has raised a material issue of fact as to whether either
of the defendants acted under color of state law.  While the ultimate
determination of whether the Hospital and Dr. Guess are state actors is a
question of law, if a factual dispute underlies that decision, then it
cannot be made on summary judgment.  See Goldstein v. Chestnut Ridge
Volunteer Fire Co., 218 F.3d 337, 344 n.7 (4th Cir. 2000), cert. denied,
531 U.S. 1126 (2001).  If one or both of the defendants were state actors,
then we must determine whether Ms. Davis has raised a material issue of
fact as to whether the conduct of either or both of the defendants denied
her right to equal protection under the laws.
     Acting under Color of State Law.  Ms. Davis contends the Hospital and
Dr. Guess were state actors for purposes of sec. 1983.  A person acts under
color of state law when the person exercises power 'possessed by virtue of
state law and made possible only because the wrongdoer is clothed with the
authority of state law.'  United States v. Classic, 313 U.S. 299, 326, 61
S. Ct. 1031, 85 L. Ed. 1368 (1941).
     The Hospital.  There are three recognized circumstances in which a
governmental entity, like the Hospital, may be sued under sec. 1983.
Fuller v. City of Oakland, 47 F.3d 1522, 1533-34 (9th Cir. 1995).  First,
Ms. Davis could show that the challenged conduct was the result of the
Hospital's official policy or the result of a custom so pervasive that it
constituted policy.  Monell v. Dep't of Soc. & Health Servs., 436 U.S. 658,
694, 98 S. Ct. 2018, 56 L. Ed. 2d 611 (1978).  Second, she could establish
that the challenged conduct was the result of 'a deliberate choice . . .
made from among various alternatives by the official or officials
responsible for establishing final policy with respect to the subject
matter in question.'  Pembaur v. City of Cincinnati, 475 U.S. 469, 483-84,
106 S. Ct. 1292, 89 L. Ed. 2d 452 (1986).  Finally, Ms. Davis could
demonstrate that, as to the challenged conduct, the Hospital's policymakers
either delegated policymaking authority to a subordinate or ratified a
subordinate's decision.  Such a delegation or ratification would indicate
that the Hospital approved the 'decision and the basis for it.'  City of
St. Louis v. Praprotnik, 485 U.S. 112, 127, 108 S. Ct. 915, 99 L. Ed. 2d
107 (1988).
     Ms. Davis does not produce evidence of any official policy of the
Hospital encouraging or condoning employment discrimination on the basis of
sexual orientation.  Rather, she contends the discriminatory treatment of
her was so pervasive and widespread that it amounted to an unlawful custom
of discrimination.  Additionally, she claims the Hospital ratified Dr.
Guess's harassment of her by failing to respond promptly and appropriately
once it became aware of his conduct.  She asserts the Hospital, by reducing
her hours and then terminating her, adopted Dr. Guess's anti-lesbian bias
as its own.
     Even without an official policy, the Hospital may have acted under
color of state law if a policy of unlawful discrimination can be attributed
to it through the actions of its policymaking officials.  In Praprotnik,
the court stated 'an unconstitutional governmental policy could be inferred
from a single decision taken by the highest officials responsible for
setting policy in that area of the government's business.'  Id. at 123.  In
Fuller, the police chief, the official policy maker, ratified a sexually-
biased investigation of his lieutenant.  Fuller, 47 F.3d at 1534.
Consequently, the Ninth Circuit reversed summary judgment, stating that 'a
jury could find that {Police Chief} Hart acted with reckless disregard of
Fuller's constitutional right not to have her investigation handled in a
sexually-biased fashion.'  Id. at 1535.
     Based upon the wording of RCW 70.44.060(10), the Hospital argues that
only its Board holds policymaking authority.1  And, based upon the language
of
RCW 70.44.080(1), the Hospital further argues that the role of its
administrator is limited

to administrative functions.2  The Hospital notes that while some authority
with respect to employment and disciplinary decisions was delegated to Mr.
Adams, its administrator, those decisions were ultimately reviewable by the
Board.  Thus, the Hospital seeks to disassociate itself for sec. 1983
purposes from the actions of both Dr. Guess and Mr. Adams.
     The following facts are relevant to our consideration of the
Hospital's argument.  After Ms. Davis and Ms. Miguel separately complained
about Dr. Guess's treatment of Ms. Davis, Mr. Adams and the Hospital's
chief of staff met with Dr. Guess.  They instructed him to discontinue his
objectionable behavior.  Additionally, they implied that if the conduct
continued, the Hospital could refer him for formal disciplinary action.  In
response, Dr. Guess restructured his work procedures and schedule so as to
minimize his contact with Ms. Davis.  As a consequence, part of the work
normally performed by Ms.

Davis was eliminated.  Accordingly, the Hospital reduced Ms. Davis's
position from full time to three-fourths time.
     After Ms. Davis's hours were reduced, she filed a grievance that was
initially handled by Mr. Adams.  As part of the grievance process, Ms.
Davis sought to gather information that might demonstrate that Dr. Guess's
refusal to work with her was motivated by an anti-lesbian bias.  To that
end, she photocopied the outside page of a patient file jacket and a page
of an emergency department notation.  She shared this information with her
attorney.  Also, she solicited patient information from physicians and
explained her conduct by characterizing the inquiries as a quality
assurance survey.
     When Mr. Adams learned about Ms. Davis's efforts, he disciplined her
for breach of patient confidentiality.  Suspending her for three days
without pay, he informed her: 'As part of the conditions for your return to
the hospital, we are now requiring that you schedule your work time in the
department to be when Dr. Charles Guess is not working in the department.'
CP at 2236.  The day after suspending Ms. Davis, Mr. Adams changed his mind
about the severity of the offense and he terminated her.
     In response to Mr. Adams's termination of her, Ms. Davis asked the
Board to review his decision.  In upholding the decision of its
administrator, the Board explained:
You did breach the confidentiality of patient records.  You also, over
time, became a disruptive employee:  Toward the end of your employment
several very troublesome things occurred.  Several written complaints about
Dr. Guess were submitted to the Administration by individuals in response
to your solicitations.  Other employees {came} to the Administration to
express their discomfort in working with you because of your repeated
solicitations of them to become embroiled in the dispute with Dr. Guess.
It appears as though you had a personal campaign to discredit Dr. Guess and
cause departmental - and Hospital-wide disruptions. . . .  A reasonable
interpretation of this 'QA Study' was that it was a part of your campaign
to discredit Dr. Guess.  At a minimum, it was highly disruptive in the
context of your relationship with him and any reasonable person would have
known it would be and would not have conducted such a study at such a time
if they were acting in good faith.

In light of the evident disruptions within the Hospital caused by you and
considering your behavior over a period of several months which appeared to
escalate the conflict, we find that the Administration's action in
terminating your employment was reasonable and justified.

CP at 2238-39 (emphasis added).  Now, in this appeal, the Hospital
emphasizes patient confidentiality as the justification for Ms. Davis's
termination.  But, at the time, much of the emphasis was upon her
relationship with Dr. Guess and her inability to work with him.
     When viewed in the light most favorable to Ms. Davis, the evidence and
the inferences from the evidence would support the following findings.  Dr.
Guess refused to work with Ms. Davis because she was a lesbian.  Although
Dr. Guess expressed concerns about Ms. Davis's qualifications and work
performance, the real motivation for his conduct and the manner in which he
treated Ms. Davis was his animosity toward lesbians.  Mr. Adams, the
Hospital's Administrator, was aware both of Dr. Guess's bias against Ms.
Davis and his treatment of her.  Although he instructed Dr. Guess to
discontinue his objectionable conduct, he also accommodated the conduct by
reducing Ms. Davis's hours so that Dr. Guess need not work with her.  This
accommodation of Dr. Guess's anti-lesbian bias is also shown by the
treatment of Ms. Miguel, whose position was eliminated as part of a
Hospital reorganization, after she complained about Dr. Guess's conduct.
Finally, when Ms. Davis complained about Dr. Guess's treatment of her and
the reduction of her work hours, Mr. Adams and, ultimately, the Hospital's
Board terminated her because she could not get along with him and because
of her 'campaign to discredit Dr. Guess.'  CP at 2238.  These findings
would support a conclusion that the Hospital adopted and ratified the
conduct of Mr. Adams and Dr. Guess as its final policy with respect to the
treatment of Ms. Davis that was based upon her sexual orientation.  See
Praprotnik, 485 U.S. at 126-27; Pembaur, 475 U.S. at 483-84.
     Therefore, material issues of fact exist that are pertinent to the
ultimate determination of whether the Hospital's conduct here amounted to
state action.
     Dr. Guess.  To establish the liability of an individual defendant
under sec. 1983, Ms. Davis must show both that Dr. Guess deprived her of a
protected right and that he caused the deprivation while acting under color
of state law.  42 U.S.C.A. sec. 1983 (1994); Harris v. City of Roseburg,
664 F.2d 1121, 1125 (9th Cir. 1981).  Normally, the second element is
demonstrated by showing that a public employee abused the position given to
him or her by the state while acting in an official capacity.  However, the
color of law requirement is not satisfied if the offensive act is a private
tort committed by a state employee.  Rather, the act must entail ''{m}isuse
of power, possessed by virtue of state law and made possible only because
the wrongdoer is clothed with the authority of state law.''  Barkauskie v.
Indian River Sch. Dist., 951 F. Supp. 519, 541 (D. Del. 1996) (quoting Mark
v. Borough of Hatboro, 51 F.3d 1137, 1150 (3d Cir. 1995)).  Before the
conduct of a private actor can be considered state action, the court must
find a 'sufficiently close nexus between the state and the private actor
'so that the action of the latter may be fairly treated as that of the
State itself.''  Jensen v. Lane County, 222 F.3d 570, 575 (9th Cir. 2000)
(quoting Jackson v. Metropolitan Edison Co., 419 U.S. 345, 350, 95 S. Ct.
449, 42 L. Ed. 2d 477 (1974)).
     Like the physician in Nieto v. Kapoor, 268 F.3d 1208 (10th Cir. 2001),
Dr. Guess argues he is not liable under sec. 1983 because he is not a
Hospital employee.  In Nieto, female employees of the radiation oncology
department sued the hospital and Dr. Quadrat Kapoor, the department's
medical director, for sexual harassment.  Like Dr. Guess, Dr. Kapoor was
not an employee of the hospital, but worked under a contractual agreement
with the hospital by the terms of which he oversaw the medical care
provided in the hospital's radiation oncology department.  Like Dr. Guess,
Dr. Kapoor did not have any authority to hire, fire, or discipline hospital
employees, but he influenced staffing decisions.  Finally, like Dr. Guess,
Dr. Kapoor argued that he was not liable under sec. 1983 because he was not
a state actor.  In holding that Dr. Kapoor was a state actor, the court
agreed with the trial court's reasoning that ''Dr. Kapoor was able to
harass Plaintiffs because of his state authority as the Medical Director of
a public radiation oncology department and because he supervised their
work.''  Id. at 1217.
     Was Dr. Guess able to harass Ms. Davis because of his state authority
as the medical director of the department in which she worked?  Again, we
must view the evidence in the light most favorable to Ms. Davis.  As the
physician responsible for overseeing the quality of care within the
radiology department, Dr. Guess exercised significant control over Ms.
Davis.  By accepting her and working with her, he could ensure her success
within the department.  Or, by rejecting both her and her work, he could
ensure her failure.  A factfinder could find that Dr. Guess chose the
latter course.
     Moreover, the evidence supports Ms. Davis's contention that Dr.
Guess's authority within the radiology department was considerable.  We
have previously noted that Ms. Miguel's position was eliminated after she
complained about Dr. Guess's treatment of Ms. Davis.  Ms. Miguel's
predecessor as the radiology department manager was Laura Johnson.
According to Ms. Johnson, she lost her position and was demoted to a part-
time employee after a disagreement with Dr. Guess.  Ms. Johnson attributes
both her demotion and her replacement by Ms. Miguel to Dr. Guess's
influence.  If this evidence is accepted by the jury, it could infer from
this evidence that Dr. Guess exercised greater real authority within the
radiology department than its actual manager.  The jury could find that Dr.
Guess was able to adversely impact the conditions of Ms. Davis's employment
because of his position in the Hospital and the authority granted to him by
the state.
     As with the Hospital, material issues of fact exist that are pertinent
to the ultimate question of whether Dr. Guess's conduct here amounted to
state action.
     Equal Protection.  In granting summary judgment, the trial court
questioned whether there is a right in the public workplace to be free from
harassment or discrimination based upon sexual orientation.  The Equal
Protection Clause of the Fourteenth Amendment requires similar treatment
under the law for similarly situated people.  U.S. Const. amend. XIV, sec.
1; City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S. Ct.
3249, 87 L. Ed. 2d 313 (1985); State v. Ward, 123 Wn.2d 488, 515, 869 P.2d
1062 (1994).  Ms. Davis contends that employment discrimination based upon
sexual orientation violates her right to equal protection.  She further
claims that even under the most relaxed level of judicial scrutiny--
rational basis--her claim is actionable under sec. 1983 because the
Hospital and Dr. Guess offer no legitimate state purpose that justifies
discriminating against her because of her sexual orientation.3
     'Under the rational relationship test, a classification will be upheld
unless it rests on grounds wholly irrelevant to the achievement of
legitimate state objectives.'  Gossett v. Farmers Ins. Co., 133 Wn.2d 954,
979, 948 P.2d 1264 (1997).  A discriminatory classification that is based
on prejudice or bias is not rational as a matter of law.  Romer v. Evans,
517 U.S. 620, 633-34, 116 S. Ct. 1620, 134 L. Ed. 2d 855 (1996); Cleburne,
473 U.S. at 448; Palmore v. Sidoti, 466 U.S. 429, 432-33, 104 S. Ct. 1879,
80 L. Ed. 2d 421 (1984).
     In Romer, the Supreme Court held that an amendment to the Colorado
State Constitution, which prohibited any legislation or judicial action
designed to protect the status of a person based upon sexual orientation,
violated the Equal Protection Clause of the United States Constitution.  In
so holding, the court observed that under the rational basis standard, the
court would 'insist on knowing the relation between the classification
adopted and the object to be attained.'  Romer, 517 U.S. at 632.  But, this
link was lacking in Romer.  Therefore, the court drew the 'inevitable
inference' that the law is 'born of animosity toward the class of persons
affected.'  Id. at 634.  The court characterized the Colorado amendment as
'a status-based enactment divorced from any factual context from which we
could discern a relationship to legitimate state interests.'  Id. at 635.
Romer holds state actions that treat homosexuals less favorably than other
groups must advance some legitimate governmental interest.
     Other courts also have held that discrimination on the basis of sexual
orientation can state a claim under the Equal Protection Clause.  For
instance, in Nabozny v. Podlesny, 92 F.3d 446 (7th Cir. 1996), the court
held that the trial court had improperly dismissed on summary judgment an
equal protection claim based on sexual orientation where a gay student
presented evidence that he had been harassed over a long period of time by
other students and, although he had repeatedly complained to school
officials, the school took no action to protect him.  Similarly, in Quinn
v. Nassau County Police Department, 53 F. Supp. 2d 347 (E.D.N.Y. 1999), the
court found the Nassau County Police Department violated a former police
officer's right to equal protection where it allowed years of harassment
because of his homosexuality.  The district court held that the right of
public employees to be free from harassment and discrimination based on
sexual orientation is found in the Equal Protection Clause and is
actionable under sec. 1983.
     Based upon the above authority, we hold that a state actor violates a
homosexual employee's right of equal protection when it treats that person
differently than it treats heterosexual employees, based solely upon the
employee's sexual orientation.  The alleged violation of the right of equal
protection is actionable under sec. 1983.
     Here, the Hospital and Dr. Guess do not offer any justification for
employment discrimination based upon sexual orientation.  They argue that
their actions were based on considerations other than Ms. Davis's sexual
orientation.  The Hospital claims that it terminated Ms. Davis because she
violated its rules concerning patient confidentiality and because she was a
disruptive employee.  Dr. Guess asserts that he refused to work with Ms.
Davis for professional and personal reasons.  Significantly, they have not
produced any evidence nor do they even argue that treating Ms. Davis
differently based upon her sexual orientation would serve a legitimate
purpose.
     Rather, the Hospital and Dr. Guess assert that Ms. Davis's claims do
not survive their motions for summary judgment because she was fired for
copying and sharing patient records and for being a disruptive employee,
not because she is a lesbian.  Cases involving Title VII of the 1964 Civil
Rights Act have established a procedural framework for deciding sexual
harassment cases in the employment context.  Bator v. Hawaii, 39 F.3d 1021,
1028 n.7 (9th Cir. 1994).  That framework is useful here, as well.  First,
the plaintiff must establish a prima facie case of discrimination.  See
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L.
Ed. 2d 668 (1973).  Once a plaintiff has established a prima facie case,
the burden of production shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for the adverse employment action
taken against the plaintiff.  Id.  Finally, if the defendant puts forth a
legitimate, nondiscriminatory reason, then the plaintiff must prove by a
preponderance of the evidence that the defendant's proffered reasons were
not its true reasons, but were merely pretext for illegal discrimination.
Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 182, 23 P.3d 440 (2001) (citing
McDonnell Douglas, 411 U.S. at 804).
     The Hospital has provided a legitimate, nondiscriminatory reason for
the termination of Ms. Davis's employment.  The employee handbook clearly
states that improper dissemination of patient information is an offense
punishable by termination.  In turn, Ms. Davis has provided evidence of
pretext.  This evidence includes Dr. Harrington's declaration that Mr.
Adams responded, ''{w}e need to do something about it and we will,''4 to
Dr. Guess's statement ''I don't think a queer should be doing vaginal
exams.''5  It also includes what the jury might infer from the fact that
Mr. Adams's initial discipline of Ms. Davis for breach of patient
confidentiality was a three-day suspension, with the apparently unrelated
admonition that 'we are now requiring that you schedule your work time in
the department to be when Dr. Charles Guess is not working in the
department.'6  A similar inference flows from the fact the Board, in
affirming the decision to fire her, cited Ms. Davis's inability to work
with Dr. Guess and its perception of her as a disruptive employee.
     After viewing the evidence in the light most favorable to Ms. Davis,
we hold she has raised a material issue regarding whether the Hospital's
asserted reasons for firing her were pretextual.  The dismissal of Ms.
Davis's sec. 1983 claim against the Hospital is reversed and remanded for
trial.
     Finally, we consider Dr. Guess's argument, offered for the first time
in his brief on appeal, that he enjoyed a qualified immunity from this type
of suit because in 1994, it was not well established that discrimination
based upon sexual orientation violated a person's right to equal
protection.  He cites Bator for the proposition that '{q}ualified immunity
protects state officials from section 1983 liability if their conduct does
not violate 'clearly established statutory or constitutional rights of
which a reasonable person would have known.''  Bator, 39 F.3d at 1027
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S. Ct. 2727, 73 L.
Ed. 2d 396 (1982)).  However, Bator held that no qualified immunity existed
to protect the defendants from a suit alleging sexual harassment.  Bator
pointed out that '{b}y the mid-1970s, the Supreme Court had announced that
the Equal Protection Clause proscribes purposeful discrimination by state
actors . . . based solely on an individual's membership in a protected
class.'  Bator, 39 F.3d at 1027 (citing Village of Arlington Heights v.
Metropolitan Hous. Dev. Corp., 429 U.S. 252, 264-68, 97 S. Ct. 555, 50 L.
Ed. 2d 450 (1977)).
     In Nabozny, the court applied similar reasoning to dispose of a
defendant's claim of qualified immunity from suit based upon sexual
orientation harassment.  The court stated as follows:
     Our discussion of equal protection analysis thus far has revealed a
well established principle: the Constitution prohibits intentional
invidious discrimination between otherwise similarly situated persons based
on one's membership in a definable minority, absent at least a rational
basis for the discrimination.  There can be little doubt that homosexuals
are an identifiable minority subjected to discrimination in our society.
Given the legislation across the country both positing and prohibiting
homosexual rights, that proposition was as self-evident in 1988 as it is
today.

Nabozny, 92 F.3d at 457 (footnote omitted).
     We agree with the court in Nabozny.  The law is well established that
intentional and invidious discrimination against an individual because he
or she is a member of an identifiable class, violates that person's right
to equal protection.  That proposition was as evident in 1994 as it is
today.  Dr. Guess has no qualified immunity from Ms. Davis's
sec. 1983 action.  The dismissal of Ms. Davis's sec. 1983 claim against Dr.
Guess is reversed and remanded for trial.
     Washington Public Policy.  Ms. Davis argues that the Hospital violated
Washington public policy by discharging her because of her sexual
orientation.  In rejecting this argument and granting summary judgment, the
trial court held that even if Ms. Davis was discharged because of her
sexual orientation, such a discharge does not violate a clear mandate of
public policy in Washington.  We agree.
     The determination of what constitutes a clear mandate of public policy
is a question of law.  Dicomes v. State, 113 Wn.2d 612, 617, 782 P.2d 1002
(1989).  The employee bears the burden of establishing the existence of a
clear mandate of public policy and that his or her discharge contravenes or
jeopardizes that public policy.  Gardner v. Loomis Armored, Inc., 128 Wn.2d
931, 941, 913 P.2d 377 (1996) (citing Dicomes, 113 Wn.2d at 617).  Courts
are required to find, not create public policy, 'and the existence of such
public policy must be 'clear.''  Selix v. Boeing Co., 82 Wn. App. 736, 741,
919 P.2d 620 (1996) (quoting Roe v. Quality Transp. Servs., 67 Wn. App.
604, 610, 838 P.2d 128 (1992)).
     In support of her argument that discharging a public employee based on
his or her sexual orientation contravenes a clear mandate of Washington
public policy, Ms. Davis relies on the general principles of equal
protection and the right to privacy.  Additionally, she points to RCW
9A.36.078, which deals with crimes motivated by bigotry and bias, and state
regulations governing public employee benefits, which now include same sex
domestic partners as eligible dependents.
     While this body of law shows some trend in our state toward a public
policy that would prohibit the government from discriminating against its
citizens because of their sexual orientation, the trend is insufficient to
establish a clear mandate of public policy.  We are mindful of the
admonition that we should ''proceed cautiously if called upon to declare
public policy absent some prior legislative or judicial expression on the
subject.'' Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 232, 685 P.2d
1081 (1984) (quoting Parnar v. Americana Hotels, Inc., 65 Haw. 370, 380,
652 P.2d 625 (1982)).  Our Legislature has enacted many laws regulating
public employment and it has not elected to prohibit discrimination because
of sexual orientation.
     In this case, Ms. Davis has not met her burden of establishing that
her discharge violates a clear mandate of Washington public policy.  For
that reason, we conclude that the court properly dismissed her claim based
upon public policy.
     Attorney Fees.  42 U.S.C. sec. 1988 permits the court, in its
discretion, to award attorney fees to the party who prevails in a suit to
enforce sec. 1983.  Dennis v. Chang, 611 F.2d 1302, 1305 (9th Cir. 1980).
The issue of whether Ms. Davis is entitled to an award of attorney fees
shall be determined by the trial court upon remand.

                    Kurtz, J.

WE CONCUR:

Kato, A.C.J.             Schultheis, J.

1 RCW 70.44.060(10) states the Board has authority:
'To make contracts, employ superintendents, attorneys, and other technical
or professional assistants and all other employees; to make contracts with
private or public institutions for employee retirement programs; to print
and publish information or literature; and to do all other things necessary
to carry out the provisions of this chapter.'
2 RCW 70.44.080(1) states:
     'The superintendent shall be the chief administrative officer of the
public district hospital and shall have control of administrative functions
of the district.  The superintendent shall be responsible to the commission
for the efficient administration of all affairs of the district.  In case
of the absence or temporary disability of the superintendent a competent
person shall be appointed by the commission.  The superintendent shall be
entitled to attend all meetings of the commission and its committees and to
take part in the discussion of any matters pertaining to the district, but
shall have no vote.'
     3 The courts apply one of three standards--strict scrutiny,
intermediate scrutiny, and rational basis--to equal protection claims.
State v. Thorne, 129 Wn.2d 736, 771-72, 921 P.2d 514 (1996).  In a footnote
to her brief, Ms. Davis observes the level of scrutiny to be applied to
classifications based on sexual orientation is an open question in
Washington.  She further states that because there is a long history of
employment discrimination against gay and lesbian people, classifications
that implicate them should be subject to a heightened level of scrutiny.
Despite the observations about heightened scrutiny contained in her
footnote, Ms. Davis's position is that the discrimination about which she
complains--discrimination based upon sexual orientation in public
employment--does not bear even a rational relationship to a legitimate
governmental interest.  Accordingly, we need not decide whether
classifications based upon sexual orientation merit heightened scrutiny.
4 CP at 1367.
5 CP at 1367.
6 CP at 2236.