What is the burden of proving that retaliation was a factor in the dismissal of an employee?

In Wilmot v. Kaiser Alum. & Chem. Corp., 118 Wash.2d 46, 821 P.2d 18, 28-30 (1991), the court set out a burden-shifting analysis, whereby the plaintiff must make a prima facie showing that "his dismissal violates a clear mandate of public policy," which shifts the burden to the employer to articulate valid reasons for the dismissal. The employer's burden at this point is a burden of production, not persuasion. Id. 821 P.2d at 28, 29. Finally, the burden shifts back to the employee to show that the employer's articulated reason is pretextual. Id. 821 P.2d at 30. The plaintiff must show "by a preponderance of the evidence that retaliation was a substantial or important factor motivating the discharge." Id. The plaintiff need not show that retaliation was the determining factor. Id.

The court recently articulated a new test, advising that its purpose was to clarify and not to change existing common law. Gardner v. Loomis Armored Inc., 128 Wash.2d

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(1) The plaintiffs must prove the existence of a clear public policy (the clarity element).