Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401 (Wash. 1985)

NOTE: The following article is my summary of an appellate court opinion based upon my point of view. This is not a resource for the actual and complete appellate court opinion. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.


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CASE SUMMARY:

[1]  This case of first impression in this state involves sexual harassment at the work place.

[2]  Two female employees brought suit against their employer, Georgia-Pacific Corporation, alleging sex discrimination in violation of RCW 49.60 and the tort of outrage [also known as intentional infliction of emotional distress].

[3]  From October 1979 until January 1982, … a male co-worker, on several occasions ‘would place his hands on [one of the plaintiff’s] hips and rub his crotch across her back side as he was passing[,] … [stared] at her breasts[,] … placed his hand on her right breast without any welcome or invitation … and approach[ed] her from behind and grabbing her buttocks with his hands.’

[4]  As early as November 1979 the plant manager knew this male employee was ‘using abusive language around female employees’ and had ‘touched or fondled’ this plaintiff and another female employee ‘in an unwanted sexual way.’ No corrective or disciplinary action was taken.

[5]  Complaints of the co-worker’s ‘other intimidating behavior’ toward this plaintiff were lodged again in mid-1981, this time to a plant superintendent who acknowledged that other female employees, including the other plaintiff in this action, were also having problems with this male co-worker.

[6]  Shortly thereafter, this plaintiff began to hear threats and complaints concerning her job performance purportedly coming from the plant manager.

[7]  The other plaintiff had been working for the employer for only a month when the same male co-worker began to press himself against her in the same manner as he passed by her.

[8]  A complaint was lodged with the plaint superintendent.

[9]  The male co-worker would also stare at her ‘in a sexually intimidating way, follow her about the plant, in such a way that it intimidated her, [and] interfered with her work performance.’

[10]  She tried to avoid him and informed the plant manager ‘who did nothing.’ She and yet another female employee confronted the plant manager about this ‘continued sexual harassment.’

[11]  The male co-worker was finally transferred to another shift, but his course of intimidation continued. In addition, other employees, including a supervisor, acted ‘in an intimidating fashion’ toward this plaintiff because of her complaints.

[12]  Not until February 1982 was the male co-worker given a 3-day suspension ‘based on his prior acts of sexual harassment.’

[13]  One of the plaintiffs suffered ‘severe emotional anguish and distress demonstrated by physical symptoms’ of various kinds. She resigned in December 1981 after working less than 9 months.

[14]  The other plaintiff was ’emotionally and psychologically injured’ and likewise demonstrated physical manifestations of ‘severe emotional distress.’ She resigned in October 1982.

[15]  The trial court found that as a result of the foregoing acts and inactions, along with other similar ones, a hostile and intimidating work environment was created and it was this which proximately caused severe emotional distress to the plaintiffs.

[16]  The trial court also found that these facts constituted the tort of outrage but that they did not permit a finding that either of the plaintiffs were constructively discharged from their jobs.

-Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401 (Wash. 1985).


ISSUE #1:  Did the trial court err in concluding that the employer was liable for sexual discrimination in violation of RCW 49.60?

 

-RULE-

PROMPT & ADEQUATE CORRECTIVE ACTION:  Under RCW 49.60, “an employer may ordinarily avoid liability for sexual harassment by taking prompt and adequate corrective action when it learns that an employee is being sexually harassed.” Id. at 408.

HOSTILE WORK ENVIRONMENT:  “To establish a work environment sexual harassment case … an employee must prove the existence of the following [four] elements[:]” (1) the harassment was unwelcome; (2) the harassment was because of sex; (3) the harassment affected the terms or conditions of employment; and (4) the harassment is imputed to the employer. Id. at 406-07

(1) THE HARASSMENT WAS UNWELCOME:  In order to constitute harassment, the complained of conduct must be unwelcome in the sense that the plaintiff-employee did not solicit or incite it, and in the further sense that the employee regarded the conduct as undesirable or offensive. Id. at 406

(2) THE HARASSMENT WAS BECAUSE OF SEX:  The question to be answered here is: would the employee have been singled out and caused to suffer the harassment if the employee had been of a different sex? Id. This statutory criterion requires that the gender of the plaintiff-employee be the motivating factor for the unlawful discrimination. Id.

(3) THE HARASSMENT AFFECTED THE TERMS OR CONDITIONS OF EMPLOYMENT:  Casual, isolated or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law. Id. at 406-07. The harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment. Id.

Whether the harassment at the workplace is sufficiently severe and persistent to seriously affect the emotional or psychological well being of an employee is a question to be determined with regard to the totality of the circumstancesId. 

(4) THE HARASSMENT IS IMPUTED TO THE EMPLOYER:  Where an owner, manager, partner or corporate officer personally participates in the harassment, this element is met by such proof. Id. at 407.

To hold an employer responsible for the discriminatory work environment created by a plaintiff’s supervisor(s) or co-worker(s), the employee must show that the employer (a) authorized, knew, or should have known of the harassment and (b) failed to take reasonably prompt and adequate corrective action. Id.

This may be shown by proving (a) that complaints were made to the employer through higher managerial or supervisory personnel or by proving such a pervasiveness of sexual harassment at the work place as to create an inference of the employer’s knowledge or constructive knowledge of it and (b) that the employer’s remedial action was not of such nature as to have been reasonably calculated to end the harassment. Id.

 

-ANALYSIS-

The Court only addressed the fourth element by reviewing the trial court’s finding as follows:

In the case at bar, [the employer] knew or should have known that [the male co-worker’s] unwelcome sexual advances and other verbal or physical conduct of his [sic] sexual nature were unreasonably interfering with [the plaintiffs’] work performance and/or created an intimidating, hostile or offensive working environment. Further, no reasonable immediate or appropriate corrective action was taken to remedy the situation.

Id. at 407 (citing Trial Court Finding of fact 54). The Court determined that “this finding is amply supported by the record; it is also unchallenged on appeal.”

 

-CONCLUSION-

The Court held that “the plaintiff-employees established that they were subjected to uninvited sexual harassment by a co-worker with the actual knowledge of two supervisory personnel who undertook no reasonably prompt and adequate remedial measures to alleviate the resulting hostile and intimidating work environment in which the employees found themselves.” Id. at 404. The Court further held that “the recovery of damages by the plaintiff-employees for the mental and emotional suffering they sustained was an appropriate remedy for such unlawful sexual discrimination.” Id.

 


ISSUE #2:  Does a determination of unlawful discrimination support Plaintiffs’ claims of constructive discharge from employment?

 

-RULE-

The “existence of unlawful discharge alone is insufficient to support a finding of constructive discharge from employment.” Id. at 408.

 

-ANALYSIS-

The Court found that “the evidence in this case was not sufficient to convince the trial court, as the trier of fact, that either of the employees’ resignations constituted a constructive discharge such as to justify additional damages on account thereof.”

 

-CONCLUSION-

The Court agreed with the trial court and found “that the existence of unlawful discrimination alone is insufficient to support a finding of constructive discharge from employment. Id. at 408 (referencing generally, Henson v. Dundee, 682 F.2d 897, 907-08 (11th Cir. 1982); Nolan v. Cleland, 686 F.2d 806, 812-13 (9th Cir.1982); see also, Johnson v. Bunny Bread Co., 646 F.2d 1250, 1256 (8th Cir.1981)). Accordingly, the Court held that “on the record Before us we cannot conclude this was error” for the trial court to hold that the facts did not permit a finding that either of the plaintiffs were constructively discharged from their jobs. Id.

 



NOTABLES & IMPLICATIONS:

POLICY

[~1]  “Sexual harassment as a working condition unfairly handicaps an employee against whom it is directed in his or her work performance and as such is a barrier to sexual equality in the workplace.” Id. at 405.

[~2]  “[W]e view the essential purpose of [the sexual harassment cause of action] to be preventative in nature.” See id. at 407-08 (referencing Bundy v. Jackson, 641 F.2d 934, 945 (D.C.Cir.1981).

[~3]  “[T]he Act does not impose a duty on the employer to maintain a pristine working environment. Rather, it imposes a duty on the employer to take prompt and appropriate action when it knows or should know of co-employees’ conduct in the workplace amounting to sexual harassment.” Id. at 406 (citing Continental Can Co. v. Minnesota, 297 N.W.2d 241, 249 (Minn.1980)).

QUID PRO QUO SEXUAL HARASSMENT

[~4]  Quid Pro Quo sexual harassment is “a situation where an employer requires sexual consideration from an employee as a quid pro quo for job benefits.” Id. at 405.

TITLE VII

[~5]  “Interpretations of Title VII, § 703 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1) (1982) are not binding on this court, but are instructive and lend support to our decision herein.” Id. at 409, n.2 (referencing Davis v. Department of Labor & Indus., 94 Wash.2d 119, 615 P.2d 1279 (1980). See generally, Barrett v. Omaha Nat’l Bank, 726 F.2d 424 (8th Cir.1984); Katz v. Dole, 709 F.2d 251 (4th Cir.1983); Henson v. Dundee, 682 F.2d 897 (11th Cir.1982); Bundy v. Jackson, 641 F.2d 934 (D.C.Cir.1981)).

 


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If you would like to learn more, consider contacting an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., Inc., or the author of this article. By reading this article, you agree to our Disclaimer|Terms-of-Use|Privacy policy.

Barnes v. Washington Natural Gas Co., 22 Wn.App. 576 (Div. I 1979)

NOTE: The following article is my summary of an appellate court opinion based upon my point of view. This is not a resource for the actual and complete appellate court opinion. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.


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CASE SUMMARY:

(1) Barnes was hired by WNGC in the early part of 1975 as a ‘helper’ on the natural gas line.

(2) He alleges that after approximately one month’s employment at WNGC his employment was terminated because of an erroneous belief on WNGC’s part that he suffered from epilepsy.

(3) Barnes contends that he does not now, nor did he ever have, epilepsy.

(4) He alleges that his termination by WNGC was based upon a perceived but nonexistent handicap in violation of RCW 49.60.180.

(5) After filing its answer and affirmative defenses, a motion for judgment on the pleadings was made by WNGC.

(6) The trial court entered judgment dismissing the action, holding: (1) That those portions of RCW 49.60 which seek to prohibit discrimination on the basis of ‘any sensory, mental, or physical handicap’ are unconstitutionally vague and, therefore, void and alternatively, (2) That plaintiff is without standing to bring and action against defendant pursuant to the provisions of RCW 49.60.

(7) After the determination by the trial court, the Supreme Court in Chicago, Milwaukee, St. Paul & P.Ry v. Human Rights Comm’n, 87 Wash.2d 802, 557 P.2d 307 (1976), held that provision of the Act pertinent here not unconstitutionally vague.

(8) The unconstitutionality of the statute is not argued by WNGC, except [the Court is] … urged to reverse the ruling that the statute is not unconstitutionally vague for the reasons stated in the respondent Milwaukee R.R.’s brief in that case.

(9) The Court refused the invitation.

(10) The Court held that the [Washington State Human Rights Commission] regulation WAC 162.22.040(1)(b)(iii) [currently WAC 162-22-020] is within the scope of the [Washington Law Against Discrimination], and Barnes has standing to maintain this action.

(11) The Court reversed and remanded to the trial court for further proceedings consistent with this opinion.

-Barnes v. Washington Natural Gas Co., 22 Wn.App. 576 (Div. I 1979).


ISSUE #1:  Under the WLAD, may a plaintiff have standing to sue their employer for disability discrimination when based on perceived disability?

 

-RULE-

UNFAIR PRACTICES OF EMPLOYERS:  RCW 49.60.180 declares, in part, that it is an unfair practice for any employer “to discharge or bar any person from employment because of … the presence of any sensory, mental, or physical handicap.” Id. at 578.

WASHINGTON ADMINISTRATIVE CODE:  “The Washington State Human Rights Commission (The Commission) has adopted regulation WAC 162-22-040 [currently WAC 162-22-020] as follows:

(1) For the purpose of determining whether an unfair practice under RCW 49.60.180-.190, or -.200 has occurred:

(a) A condition is a ‘sensory, mental or physical handicap’ if it is an abnormality and is a reason why the person having the condition did not get or keep the job in question, or was denied equal pay for equal work, or was discriminated against in other terms and conditions of employment, or was denied equal treatment in other areas covered by the statutes. In other words, for enforcement purposes a person will be considered to be Handicapped by a sensory, mental or physical condition if he or she is Discriminated against because of the condition and the condition is abnormal. (emphasis in original.)

(b) ‘The presence of a sensory, mental, or physical handicap’ includes, but is not limited to, circumstances where a sensory, mental, or physical condition:

(i) is medically recognizable or diagnosable;

(ii) exists as a record of history; or

(iii) is perceived to exist, whether or not it exists in fact.

(2) An example of subsection (1)(b)(ii) is a record showing that the worker had a heart attack five years ago. An example of subsection (1)(b)(iii) is a rejection of a person for employment because he had a florid face and the employer thought that he had high blood pressure.” Id. at 579.

“The Commission … had been granted broad discretion and responsibility for administration of the Act. We must rely upon and give weight to the Commission’s interpretations of the statute reflected in its regulations.” Id. at 581.

JUDICIAL REVIEW OF REGULATIONS:  “There is a presumption that the regulation is valid, and the burden of challenging it is upon the party attacking it.” Id. at 580 (referencing Weyerhaeuser Co. v. Department of Ecology, 86 Wash.2d 310, 314, 545 P.2d 5 (1976)). The Court’s “review in such situations generally is limited to determining whether the regulation is reasonably consistent with the statute it purports to implement.” Id. (citing Weyerhaeuser Co., 86 Wn.2d at 314.).

.

-ANALYSIS-

LEGISLATIVE INTENT:  The Court initially considered legislative intent to resolve the issue presented and reasoned, “It is the intent of the legislature to prohibit discrimination in employment against a person with a sensory handicap.” Id. at 582. But “it would be an anomalous situation if discrimination in employment would be prohibited against those who possess the handicap but would not include within the class a person ‘perceived’ by the employer to have the handicap.” Id.

ESSENCE OF EMPLOYMENT DISCRIMINATION:  The Court then defined the essence of unlawful employment discrimination as “the application of unreasonable generalizations about people to the hiring, promotion and discharge of workers.” Id. It considered the history of disability as a protected class, finding, “race, religious creed and sex are among the prohibited criteria for judging workers’ qualifications because of the prejudgments often made on the basis of these characteristics.” Id. The Court explained that proscriptions of discrimination against handicapped persons were added to WLAD in 1973 on account of “similar prejudgments often made about persons afflicted with sensory, mental or physical handicaps, such as epilepsy.” Id.

LEGISLATIVE PURPOSE:  The Court also evaluated legislative purpose by first declaring that a person “who is perceived to be afflicted with epilepsy may be discriminated against because of his or her perceived handicap even though that perception turns out to be false in either case.” Id. The Court reasoned that “it would defeat legislative purpose to limit the handicap provisions of the law against discrimination to those who are actually afflicted with a handicap, such as epilepsy, and exclude from its provision those perceived as having such condition.” Id. The Court went on to declare that “prejudice in the sense of a judgment or opinion formed before the facts are known is the fountainhead of discrimination engulfing medical disabilities which prove on examination to be unrelated to job performance or to be nonexistent.” Id. It determined that the intent of the law is to “protect workers against such prejudgment based upon insufficient information.” The Court then found that “the law’s application, therefore, should not be limited to those who actually have handicaps, excluding those who are discriminated against in the same way because they are only thought to have handicaps.” Id.

PROTECTED CLASS:  Next, the Court essentially provided a broad definition of disability as a protected class: “The class protected by the statute is those persons whom the employer discharges or intends to discharge because he believes the person is afflicted with a ‘mental, sensory, or physical handicap.'” Id. at 583 (emphasis added). This definition apparently includes both actual and perceived mental, sensory, or physical handicaps.

APPLICATION OF POLICY:  The Court applied public policy to the instant case and found that WLAD’s policy to “eliminate and prevent discrimination in employment requires protecting from discriminatory practices both those perceived to be handicapped as well as those who are handicapped.” Id.

EMPLOYER’S INTERESTS:  Before reaching its holding, the Court also considered the employer’s interests reasoning that the employer was fully protected, because [WLAD] provides “that the prohibition against discrimination because of such handicaps shall not apply if the particular disability prevents the proper performance of the particular worker involved.” Id. (citing RCW 49.60.180(1)).

 

-CONCLUSION-

The Court held that Barnes had standing to maintain his action of disability discrimination under WLAD based on perceived disability; and it reversed and remanded the cause to the trial court for further proceedings consistent with its opinion.

 


ISSUE #2:  Is [former] WAC 162-22-040(1)(b)(iii) valid?

 

-RULE-

PRESUMPTION OF VALIDITY: There is a presumption that the regulation is valid, and the burden of challenging it is upon the party attacking it. Id. at 580 (internal citation omitted). The Court’s review in such situation generally is limited to determining whether the regulation is reasonably consistent with the statute it purports to implement. Id. (internal citation omitted). The Washington State Human Rights Commission has been granted broad discretion and responsibility for administration of the WLAD. Id. at 581. The Court must rely upon and give weight to the Commission’s interpretations of the statute reflected in its regulations. Id. (internal citation omitted).

 

-ANALYSIS-

See analysis under Issue #1 above..

.

-CONCLUSION-

The Court held that the Washington State Human Rights Commission regulation WAC 162.22.040(1)(b)(iii) was within the scope of the Washington Law Against Discrimination, and it reversed and remanded the cause to the trial court for further proceedings consistent with its opinion.

 



NOTABLES & IMPLICATIONS:

PUBLIC POLICY

[~1]  “Public policy, expressed by the [Washington Law Against Discrimination] to eliminate and prevent discrimination in employment requires protecting from discriminatory practices both those perceived to be handicapped as well as those who are handicapped.” Id. at 583.

WASHINGTON STATE HUMAN RIGHTS COMMISSION

[~2]  “The Washington State Human Rights Commission (referred to as the Board in the Act) is the agency established by the Washington State Law Against Discrimination (the Act) ‘with powers with respect to elimination and prevention of discrimination in employment … because of … the presence of any sensory, mental, or physical handicap; and the (commission) established hereunder is hereby given general jurisdiction and power for such purposes.’ RCW 49.60.010. The regulations have been adopted by the Commission to implement its powers to administer the Act pursuant to RCW 49.60.120:  ‘The (commission) shall have the functions, power, and duties: … (3) To adopt, promulgate, amend, and rescind suitable rules and regulations to carry out the provisions of this chapter, and the policies and practices of the (commission) in connection therewith.'” Id. at 583 n. 2

 


LEARN MORE

If you would like to learn more, consider contacting an experienced employment discrimination attorney to discuss your case. This article is not offered as legal advice and will not establish an attorney-client relationship with Williams Law Group, Law Office of Gregory A. Williams, P.S., Inc., or the author of this article. By reading this article, you agree to our Disclaimer|Terms-of-Use|Privacy policy.

Alonso v. Qwest Communications Company, LLC, 178 Wn.App 734 (Div. 2 2013)

NOTE: The following article is my summary of an appellate court opinion based upon my point of view. This is not a resource for the actual and complete appellate court opinion. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.


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CASE SUMMARY:

(1) Joseph Alonso sued his employer, Qwest Communications Company LLC, and his supervisor for discrimination [based on his combat veteran, disabled person, and Mexican-American statuses.]

(2) [T]he superior court granted Qwest summary judgment dismissal of Alonso’s complaint.

(3) Alonso appeals, arguing that he provided sufficient evidence to establish prima facie discrimination claims for disparate treatment, hostile work environment, and unlawful retaliation.

(4) [The Court held] that Alonso established prima facie disparate treatment and hostile work environment claims [and reversed] the superior court’s summary judgment dismissal on those matters.

(5) [The Court held] that Alonso failed to establish a prima facie retaliation case … [and affirmed] the superior court’s summary judgment dismissal of that claim.

-Alonso v. Qwest Communications Company, LLC, 178 Wn.App 734 (Div. 2 2013).


ISSUE #1:  Did Alonso sufficiently establish a prima facie disparate treatment case under the direct evidence test?

 

-RULE-

DISPARATE TREATMENT:  “Disparate treatment is a form of discrimination that occurs when an employer treats some people less favorably than others because of race, color, religion, sex, or other protected status.” Id. at 744 (citing Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 354 n. 7, 172 P.3d 688 (2007)). “To establish a prima facie disparate treatment claim, the employee-plaintiff must show that the employer treats some people less favorably than others because of their protected status.” Id. (citing Johnson v. Dep’t of Soc. & Health Servs., 80 Wn.App. 212, 226, 907 P.2d 1223 (1996)).

PRIMA FACIE TEST (2 OPTIONS):  “A plaintiff can establish a prima facie case by either offering direct evidence of an employer’s discriminatory intent, or by satisfying the McDonnell Douglas burden-shifting test that gives rise to an inference of discrimination.” Id. (citing Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 491, 859 P.2d 26, 865 P.2d 507 (1993)).

DIRECT EVIDENCE TEST:  “[A] plaintiff can establish a prima facie case by providing direct evidence that (1) the defendant employer acted with a discriminatory motive and (2) the discriminatory motivation was a significant or substantial factor in an employment decision.” Id. (citing Kastanis, 122 Wn.2d at 491). “An adverse employment action involves a change in employment conditions that is more than an inconvenience or alteration of one’s job responsibilities, such as reducing an employee’s workload and pay.” Id. at 746. Lastly, “a demotion or adverse transfer, or a hostile work environment, may also amount to an adverser employment action.” Id. 

DISCRIMINATORY REMARKS:  The court “generally consider[s] an employer’s discriminatory remarks to be direct evidence of discrimination.” Id. (referencing Johnson v. Express Rent & Own, Inc., 113 Wn.App. 858, 862-63, 56 P.3d 567 (2002)).

 

-ANALYSIS-

(1) DISCRIMINATORY MOTIVE:  The Court evaluated the case under the first prong of the Direct Evidence Test–that the employer acted with discriminatory motive–and held that “the evidence sufficiently proved that Martinez acted with discriminatory motive toward Alonso.” Id. at 745. In this case, “Martinez openly stated that he hated disabled Gulf War combat veterans and specifically that he hated that Alonso was disabled and receiving disability pay”; “[A]lonso produced evidence that Martinez referred to Mexicans as ‘Spics’ and allowed others to use the term”; “[e]mployees including Martinez openly mocked Alonso’s speech impediment and accent”; “described his speech as that of a ‘ghetto Hispanic'”; and “contrasted themselves to Alonso because they ‘spoke correct English’ unlike him.”

(2) SIGNIFICANT OR SUBSTANTIAL FACTOR IN EMPLOYMENT DECISION:  In this case, Alonso claimed that he suffered adverse action through both adverse transfer and hostile work environment.

Initially, Alonso claimed that he experienced an adverse transfer causing him to lose certain benefits including a newer van, cellular phone, and other preferences regarding equipment. The Court raised and dismissed the rule in O’Neal v. City of Chicago, 392 F.3d 909, 912 (7th Cir. 2004), essentially establishing that loss of benefits do not amount to an adverse employment action when those benefits were associated with the position from which the plaintiff transferred. See id. at 746. The Court viewed the evidence in a light most favorable to Alonso and held that his “benefits” were not tied to the position from which he transferred, and, thus, a reasonable juror could conclude that he suffered an adverse employment action when he transferred from his original position and was forced to give up those “benefits.”

Next, Alonso further argued that he experienced adverse action in that he “suffered from a negative employment decision–being subjected to an increasingly hostile work environment as the subject of harassment targeting his protected statuses.” Id. at 747. Accordingly, the Court considered derogatory comments made by Martinez and other emloyees as described above in section “(1) Discriminatory Motive”; and it also considered an additional comment allegedly made by Martinez regarding Alonso’s veteran status and PTSD — “[A]re you crazy or something?” and “[D]id you know Vietnam was over in 1978?” Id. at 748.

 

-CONCLUSION-

The Court held that “Alonso sufficiently established a prima facie disparate treatment case under the direct evidence test.” Id. at 748. It further held that “Alonso produced direct evidence of (1) Martinez’s discriminatory motive–his hatred toward Alonso as a disabled Gulf War veteran with a speech impediment and (2) how he suffered adverse employment decisions–loss of his newer van and cell phone, and an increasingly hostile work environment laden with bullying and mockery of his Mexican-American heritage and disabilities.” Id. Accordingly, the Court reversed the trial court’s dismissal of his disparate treatment claim.

 


ISSUE #2:  Did Alonso establish a prima facie hostile work environment claim?

 

-RULE-

HOSTILE WORK ENVIRONMENT:  “To establish a prima facie hostile work environment claim, the plaintiff must allege facts proving that (1) the harassment was unwelcome, (2) the harassment was because the plaintiff was a member of a protected class, (3) the harassment affected the terms and conditions of employment, and (4) the harassment is imputable to the employer.” Id. at 749 (citing Loeffelholz v. Univ. of Wash., 175 Wn.2d 264, 275, 285 P.3d 854 (2012)). “Harassment is actionable only if it is sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id. (citing Antonius v. King County, 153 Wn.2d 256, 261, 103 P.3d 729 (2004)).

HARASSMENT BECAUSE OF PROTECTED CLASS (2ND ELEMENT):  To establish the 2nd element of a hostile work environment claim–that the harassment was because the plaintiff was a member of a protected class–“a plaintiff need only produce evidence that supports a reasonable inference that his protected class status was the motivating factor for the harassing conduct.” Id. at 749 (internal citations and quotation marks omitted).

HARASSMENT AFFECTED TERMS & CONDITIONS (3RD ELEMENT):  “To determine whether conduct was severe or pervasive enough to affect the terms and conditions of employment…[courts] look at the totality of the circumstances, including the frequency and severity of harassing conduct, whether it was physically threatening or humiliating, or merely an offensive utterance, and whether it unreasonably interfered with the employee’s work performance.” Id. at 751 (citing Washington v. Boeing Co., 105 Wn.App. 1, 10, 119 P.3d 1041 (2000)). “Whether offensive comments affect the conditions of employment is a factual question.” Id. (referencing Davis v. W. One Auto. Grp., 140 Wn.App. 449, 457, 166 P.3d 807 (2007), review denied, 163 Wn.2d 1040 (2008)). However, “causal, isolated, or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law.” Id. (citing Washington, 105 Wn.App. at 10).

HARASSMENT IMPUTABLE TO EMPLOYER (4TH ELEMENT):  “Harassment is imputed to an employer when an owner, manager, partner, or corporate officer personally participates in the harassment.” Id. at 754 (citing Glasgow v. Ga.-Pac. Corp., 103 Wn.2d 401, 407, 693 P.2d 708 (1985)). “Managers are those whom the employer has given authority and power to affect the hours, wages, and working conditions of the employer’s workers.” Id. (citing Robel v. Roundup Corp., 148 Wn.2d 35, 48 n. 5, 59 P.3d 611 (2002)).

 

-ANALYSIS-

(1) UNWELCOME:  In this case, the Court found that it was undisputed between the parties that Alonso did not welcome any hostility or harassment.

(2) HARASSMENT BECAUSE OF PROTECTED CLASS:  The Court considered Alonso’s offered evidence regarding military status–Martinez expressed hatred that Alonso was a disabled Gulf War combat vet and he compared his vet status to Alonso’s; regarding race–Martinez and others subjected Alonso to racially derogatory language (established above); and regarding disability–he was a victim of open mocking for his speech impediment (established above). Accordingly, the court held that Alonso satisfied this element in establishing a prima facie hostile work environment claim.

(3) HARASSMENT AFFECTED TERMS & CONDITIONS:  The Court considered the evidence referenced under element 2 above and also considered that “Alonso visited a psychiatric emergency room in response to the ‘great stress at work’ and an upsurge in PTSD symptoms.” Id. at 752. The Court then held that Alonso “sufficiently demonstrated that the alleged harassment affected the terms and conditions of his employment.” Id.

(4) HARASSMENT IMPUTABLE TO EMPLOYER:  The Court found that Alonso’s supervisor, Martinez, set his crew’s hours, managed how employees were to spend their time on projects, controlled overtime, and controlled placement on out-of-town projects. Accordingly, the Court determined that Martinez qualified as a manager for purposes of summary judgment, because he had authority to affect employee’s hours, wages (via delegating overtime) and working conditions. The Court then found that Martinez participated in some of the harassment as described above.  Ultimately, the Court held that Alonso established that the harassment is imputable to the employer through supervisor Martinez.

 

-CONCLUSION-

The Court held both that Alonso established a prima facie hostile work environment claim and that the superior court erred in granting Qwest’s summary judgment motion on this issue. Accordingly, the Court reversed the trial court’s dismissal  of his hostile work environment claim.

 


ISSUE #3:  Did the superior court err in dismissing Alonso’s retaliation claim?

 

-RULE-

UNLAWFUL RETALIATION:  “The WLAD prohibits retaliation against a party asserting a claim based on a perceived violation of his civil rights or participating in an investigation into alleged workplace discrimination.” Id. at 753 (citing RCW 49.60.210). “To establish a prima facie retaliation case, a plaintiff must show that (1) he engaged in statutorily protected activity, (2) his employer took an adverse employment action against him, and (3) there is a causal link between the activity and the adverse action.” Id. at 753-54 (citing Short v. Battle Ground Sch. Dist., 169 Wn.App. 188, 205, 279 P.3d 902 (2012)).

PROTECTED ACTIVITY:  “An employee engages in WLAD-protected activity when he opposes employment practices forbidden by antidiscrimination law or other practices that the employee reasonably believed to be discriminatory.” Id. at 754 (citing Short, 169 Wn.App. at 205).

GENERAL COMPLAINTS:  “A general complaint about an employer’s unfair conduct does not rise to the level of protected activity in a discrimination action under WLAD absent some reference to the plaintiff’s protected status.” Id. (referencing Graves v. Dep’t of Game, 76 Wn.App. 705, 712, 887 P.2d 424 (1994)).

 

-ANALYSIS-

The Court initially evaluated whether Alonso met the first element of an unlawful retaliation claim — that he participated in protected activity. Here Alonso used a company hotline to make a general complaint about corruption, mistreatment, and vulgar language against both his supervisor (Martinez) and another employee. Id. at 754. However, Alonso “did not express that his complaints were in response to harassment based on any protected status.” Id. Thus, the Court held that Alonso did not establish the first element, because he did not phone the hotline to report discrimination against him based on a protected class. Id.

 

-CONCLUSION-

The Court held that Alonso failed to sufficiently establish a prima facie retaliation case, because he did not demonstrate that he engaged in statutorily protected activity. Therefore, the Court affirmed the trial court’s dismissal of his unlawful retaliation claim.

 



NOTABLES & IMPLICATIONS:

ADVERSE TRANSFER

[~1]  Transfer to a position with the same work for the same pay and within the same union contract classification can still be considered an adverse transfer if the former position came with some benefits (e.g., newer vehicle, cellular phone, preference in employer-supplied workstations, computers, desk telephones, etc.) that the new position does not provide. See id. at 746.

HOSTILE WORK ENVIRONMENT (PROTECTED CLASS)

[~2]  Just two comments may be enough to support a reasonable inference that an employee’s protected class status was the motivating factor for harassing conduct. See id. at 749-50 (supervisor openly expressed he hated that plaintiff was a disabled Gulf War combat veteran and compared his own veteran status to plaintiff’s).

HOSTILE WORK ENVIRONMENT (TERMS & CONDITIONS)

[~3]  An “employee’s alleged humiliation and self-diagnosed mental sickness from ‘racially charged’ workplace comments raised an inference that condition resulted from hostile work environment.” Id. at 751 (referencing Davis v. W. One Auto. Grp., 140 Wn.App. 449, 457, 166 P.3d 807 (2007), review denied, 163 Wn.2d 1040 (2008) (emphasis added).

HOSTILE WORK ENVIRONMENT (IMPUTABLE TO EMPLOYER) — ASSIGNING OVERTIME

[~4]  A supervisor/manager may have authority to affect an employee’s wages if the supervisor/manager had the ability to determine who could earn overtime. See id. at 752 (referencing Robel v. Roundup Corp., 148 Wn.2d 35, 48 n. 5, 59 P.3d 611 (2002)).

TITLE VII FOR GUIDANCE 

[~5]  “Because our discrimination laws substantially parallel Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e to 2000e-17, [courts] …may look to federal law for guidance.” Id. at 755, n. 10 (citing Phanna K. Xieng v. Peoples Nat’l Bank of Wash., 120 Wn.2d 512, 518, 844 P.2d 389 (1993)).

 


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