Robel v. Roundup Corporation, 148 Wn.2d 35 (Wash. 2002)

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 suit arises out of Linda Robel’s employment from May 31, 1995, to September 12, 1996, in the service deli at … [the] Fred Meyer store in Spokane.

(2) On July 14, 1996, Robel sustained a workplace injury and timely filed a workers’ compensation claim.

(3) In late July, Robel was given a light-duty assignment, “a four-hour shift” during which she stood “at a display table outside the deli area offering samples of food items to customers.”.

(4) On August 1, 1996, as Robel worked at the display table, two deli workers “laughed” and “acted out a slip and fall,” as one of them yelled, “Oh, I hurt my back, L & I, L & I!”

(5) They “audibly called [Robel] a ‘bitch’ and ‘cun[-].'”

(6) They also “told customers she had lied about her back and was being punished by Fred Meyer by ‘demoing’ pizzas.”

(7) In journal entries for August 2, 3, 10, and 11, Robel wrote that assistant deli manager Amy Smith and others made fun of her, laughed, pointed, and gave her “dirty looks.”

(8) Robel also noted that on August 13, Smith and other deli workers would “stare at [her], whisper out loud, & laugh, pretending to hurt their backs & laugh.”

(9) Robel reported the incidents to her union representative, Ron Banka

(10) According to Robel’s journal, Banka came in on August 14, 1996, and set up a meeting with Steve Wissink, the store director, for Friday, August 16.

(11) At [a subsequent all-deli employee meeting, called by Wissink on August 19, 1996,] Wissink warned the employees that future harassment could result in termination.

(12) On August 22, 1996, deli workers “laughed and audibly admonished each other not to harass Robel.”

(13) On August 28 and 30, Robel noted in her journal that co-workers were talking about her and laughing at her, and she recorded that, on September 2, Smith and other workers “had a great time making fun of [her], calling [her] names[,] pretending to hurt their backs & yelling L & I.”

(14) On September 13, 1996, Robel secured a two-week work release from her doctor and gave it to Smith that same day.

(15) Before Robel left the deli, she overheard Smith comment to other deli employees, “Can you believe it, Linda’s gonna sit on her big ass and get paid.”

(16) Robel again contacted [her union rep], who in turn contacted Wissink on September 20, 1996.

(17) On September 24, Wissink telephoned Robel to confirm the allegations. Robel “told him about the C word and Bitch[,] the little plays they were doing about [her] back.”

(18) On September 28, 1996, Wissink terminated one employee.

(19) Robel never returned to work at Fred Meyer.

(20) On February 13, 1998, Robel filed suit against Fred Meyer, stating claims for disability discrimination …, retaliation for filing a workers’ compensation claim …, negligent and intentional infliction of emotional distress, and defamation.

(21) The trial court denied Fred Meyer’s motion for summary judgment … [f]inding for Robel on all five causes of action[.]

(22) Fred Meyer appealed. The Court of Appeals reversed the trial court’s judgment on all claims.

Robel v. Roundup Corporation, 148 Wn.2d 35, 59, P.3d 611 (Wash. 2002).


ISSUE #1:  Does the Washington Law Against Discrimination, Chapter 49.60 RCW, support an employee’s disability based hostile work environment claim?

 

-RULE-

WASHINGTON LAW AGAINST DISCRIMINATION:  Under the Washington Law Against Discrimination (WLAD), RCW 49.60, “It is an unfair practice for any employer to discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability.” Id. at 43 (citing RCW 49.60.180(3)) (alteration to the original).

RULES OF CONSTRUCTION:  To determine whether the Washington Law Against Discrimination “supports a disability claim based on hostile work environment, [courts] may look to federal cases construing analogous federal statutes.” Id. (citing Fahn v. Cowlitz County, 93 Wash.2d 368, 376, 610 P.2d 857 (1980), 621 P.2d 1293 (1980)).

 

-ANALYSIS-

In this case, the Court determined that whether the Washington Law Against Discrimination supported a disability based hostile work environment was an issue of first impression in the State. It then reasoned that “just as the federal cases extended the Title VII hostile work environment claim (and its standards of proof) to the ADA, we may extend the reasoning in Glasgow to disability claims.” Id. at 45.

 

-CONCLUSION-

The Court held that “the [Washington Law Against Discrimination] … supports a disability based hostile work environment claim.” Id. at 43.

 


ISSUE #2:  Did the trial court’s unchallenged findings of fact satisfy the elements of Robel’s disability based hostile work environment claim?

 

-RULE-

DISABILITY BASED HOSTILE WORK ENVIRONMENT: In order to establish a disability based hostile work environment case, a plaintiff must prove “(1) that he or she was disabled within the meaning of the antidiscrimination statute[, WLAD], (2) that the harassment was unwelcome, (3) that it was because of the disability, (4) that it affected the terms and conditions of employment, and (5) that it was imputable to the employer.” Id. at 45.

THE SECOND ELEMENT (UNWELCOME): To establish that the harassment was unwelcome, “the plaintiff must show that he or she ‘did not solicit or incite it’ and viewed it as ‘undesirable or offensive.'” Id. (citing Glasgow v. Georgia-Pac. Corp., 103 Wn.2d 401, 406, 693, P.2d 708 (Wash. 1985)).

THE THIRD ELEMENT (BECAUSE OF DISABILITY): To establish that the harassment was “because of disability,” requires “[t]hat the disability of the plaintiff-employee be the motivating factor for the unlawful discrimination.” Id. at 46 (citing Glasgow, 103 Wash.2d at 406, 693 P.2d 708)) (alteration to the original). This element requires a nexus between the specific harassing conduct and the particular injury or disability. Id.

THE FOURTH ELEMENT (TERMS & CONDITIONS OF EMPLOYMENT): To establish that the harassment affected the terms and conditions of employment, “the harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id. at (citing Glasgow, 103 Wash.2d at 406, 693 P.2d 708)) (alteration to the original). “[A] satisfactory finding on this element should indicate “that the conduct or language complained of was so offensive or pervasive that it could reasonably be expected to alter the conditions of plaintiff’s employment.'” Id. (citing 6A WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 330.23, at 240) (alteration to the original).

THE FIFTH ELEMENT (IMPUTABLE TO EMPLOYER): To impute harassment to an employer, “the jury must find either that (1) an owner, manager, partner or corporate officer personally participate[d] in the harassment or that (2) the employer … authorized, knew, or should have known of the harassment and failed to take reasonably prompt adequate corrective action.” Id. at 47 (internal citation and quotation marks omitted) (alteration to the original).

 

-ANALYSIS-

THE FIRST ELEMENT (DISABLED):  In this case, neither party contested that Robel’s injury was a disability under RCW 49.60.180(3). Id. at 35Therefore, the Court did not further define disabled within the meaning of the antidiscrimination statute. Id.

THE SECOND ELEMENT (UNWELCOME):  The Court found that no findings suggested that Robel solicited or incited the remarks made about her workplace injury. Id. at 45. That Robel viewed the employer’s conduct as undesirable and offensive was at least implicit in her reporting the conduct to Banka (her Union Representative). Id. at 45-46.

THE THIRD ELEMENT (BECAUSE OF DISABILITY): The trial court found that the verbal and non-verbal harassment of Robel in the work setting after July 14, 1996, was directly or proximately related related to her disability and/or Fred Meyer’s perception of Robel as disabled. See id. at 46. The Court, in the instant case, elected not to substitute their judgment for that of the trial court. Id.

THE FOURTH ELEMENT (TERMS & CONDITIONS OF EMPLOYMENT): The trial court found that Fred Meyer created a hostile and abusive work environment and that the environment was offensive to Robel. Id. at 46-47 (internal quotation marks omitted). The Court, in the instant case, pointed to an additional trial court finding as follows: “Fred Meyer discriminated against Robel in the terms or conditions of employment when it participated in and/or failed to bring to an end … the verbal and non-verbal harassment of Robel in the work setting.” Id. at 47. The Court, in the instant case, found that this language echoed the “critical language from Glasgow and the pattern jury instruction”; it accepted the findings as “verities” and passed on “any reweighing of the evidence supporting them.” Id.

THE FIFTH ELEMENT (IMPUTABLE TO EMPLOYER): The Court identified relevant trial court findings as follows: (1) “Fred Meyer, through the acts of its managers, participated, authorized, knew and/or should have known of the verbal and non-verbal harassment of Robel in the work setting subsequent to July 14, 1996”; (2) “Fred Meyer’s management personnel improperly participated in and/or allowed the verbal and non-verbal harassment in the work setting”; (3) “deli manager Potts and assistant deli manager Smith were management personnel for purposes of employer liability”; (4) “Fred Meyer’s remedial action … was not of such nature to have been reasonably calculated to end the harassment”; (5) “[Fred Meyer’s] investigations and termination of [one co-worker] without further management corrections were inadequate”; and (6) “the postinjury harassment was ‘imputed to Fred Meyer.'” Id. at 48 (internal citations and quotation marks omitted). The Court found that these uncontested findings of fact satisfy both options derived from Glasgow. Id.

 

-CONCLUSION-

The Court concluded “that the Court of Appeals erred when it ignored the trial court’s unchallenged findings of fact on the five essential elements of the claim.” Id. at 48. It then reversed “the Court of Appeals and reinstated the trial court’s judgment in Robel’s favor.” Id.

 


ISSUE #3:  Did the trial court’s unchallenged findings of fact support the conclusion that Fred Meyer, in violation of RCW 51.48.025(1), retaliated against Robel for filing a workers’ compensation claim?

 

-RULE-

WORKERS’ COMPENSATION ANTI-RETALIATION STATUTE:  The Washington Industrial Insurance Act “provides that no employer may discharge or in any manner discriminate against any employee because such employee has filed or communicated to the employer an intent to file a claim for compensation or exercises any rights provided under this title.” Id. at 48-49 (citing RCW 51.48.025(1)) (emphasis in original).

 

-ANALYSIS-

In this case, the Court framed the issue essentially as follows: Whether the Workers’ Compensation Anti-Retaliation Statute, RCW 51.48.025(1), applies to an employer “who has allegedly discriminated in some way, short of discharge, against an employee because she filed a workers’ compensation claim[?]” See id. at 50. It then found that, “by analogy with Wilmot v. Kaiser Aluminum & Chemical Corp., 118 Wn.2d 46, 68, 821 P.2d 18 (1991), which required proof of a causal connection between the filing of a claim and the allegedly retaliatory termination, Robel was required to prove that she had filed a claim, that Fred Meyer thereafter discriminated against her in some way, and that the claim and the discrimination were causally connected.” Id. at 50.

 

-CONCLUSION-

The Court held that “because the findings of fact satisfy these elements and were not challenged on appeal, we reverse the Court of Appeals on the retaliation claim and reinstate the trial court’s judgment in Robel’s favor.” Id.

 


ISSUE #4:  Did the Court of Appeals properly hold as a matter of law that Robel’s claim for intentional infliction of emotional distress should not go to the trier of fact?

 

-RULE-

IIED ELEMENTS: To succeed on a claim for outrage–also known as intentional infliction of emotional distress–“a plaintiff must prove three elements: (1) extreme and outrageous conduct, (2) intentional or reckless infliction of emotional distress, and (3) severe emotional distress on the part of the plaintiff.” Id. at 51 (internal citations and quotation marks omitted) (emphasis added).

QUESTIONS FOR THE JURY: The three elements are fact questions for the jury, and the first element of the test goes to the jury only after the court determines “if reasonable minds could differ on whether the conduct was sufficiently extreme to result in liability.” Id.

EXTREME & OUTRAGEOUS CONDUCT: To establish the first IIED element, the plaintiff must prove “that the conduct was so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. (citing Dicomes v. State, 113 Wn.2d 612, 630, 782 P.2d 1002 (1989)) (internal quotation marks omitted).

RELATIONSHIP BETWEEN PARTIES (IIED): In an outrage claim “[t]he relationship between the parties is a significant factor in determining whether liability should be imposed.” Id. at 52 (citing Contreras v. Crown Zellerback Corp., 88 Wn.2d 735, 741, 565 P.2d 1173 (1977)). “The Contreras court emphasized that ‘added impetus’ is given to an outrage claim ‘[w]hen one in a position of authority, actual or apparent, over another has allegedly made racial slurs and jokes and comments.” Id. (citing Contreras v. Crown Zellerback Corp., 88 Wn.2d 735, 741, 565 P.2d 1173 (1977); see also White v. Monsanto Co., 585 So.2d 1205, 1210 (La. 1991) (stating that “plaintiff’s status as an employee may entitle him to a greater degree of protection from insult and outrage by a supervisor with authority over him than if her were a stranger”)).

VICARIOUS LIABILITY: “Once an employee’s underlying tort is established, the employer will be held vicariously liable if ‘the employee was acting within the scope of his employment.'” Id. at 53 (citing Dickinson v. Edwards, 105 Wn.2d 457, 469, 716 P.2d 814 (1986)). “An employer can defeat a claim of vicarious liability by showing that the employee’s conduct was (1) ‘intentional or criminal’ and (2) ‘outside the scope of employment.'” Id. (citing Niece v. Elmview Group Home, 131 Wn.2d 39, 56, 929 P.2d 420 (1997) (emphasis in original), quoted with approval in Snyder v. Med. Servs. Corp. of E. Wash., 145 Wn.2d 233, 242-43, 35 P.3d 1158 (2001).

SCOPE OF EMPLOYMENT: “An employee’s conduct will be outside the scope of employment if it “is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.'” Id. (citing RESTATEMENT (SECOND) OF AGENCY § 228(2) (1958); see also RESTATEMENT, supra,  § 228(1).

 

-ANALYSIS-

FIRST ELEMENT (EXTREME & OUTRAGEOUS CONDUCT): “Robel was called in her workplace names so vulgar that they have acquired nicknames, such as ‘the C word,’ for example.” Id. at 52. (internal citation omitted) (emphasis in original).

VICARIOUS LIABILITY: “Fred Meyer deli workers tormented Robel on company property during working hours, as they interacted with co-workers and customers and performed the duties they were hired to perform. Nothing in the record suggests that the abusive employees left their job stations or neglected their assigned duties to launch the verbal attacks on Robel.” Id. at 54.

 

-CONCLUSION-

On the threshold question (extreme and outrageous conduct) the Court concluded that reasonable minds could conclude that, in light of the severity and context of the conduct, it was beyond all possible bounds of decency, atrocious, and utterly intolerable in a civilized community. See id. at 51-52. The Court also concluded that Fred Meyer was vicariously liable, “that reasonable minds could find the complained-of conduct outrageous, and that the uncontested findings satisfied the three elements of outrage.” Id. at 54-55.

The Court then reversed the Court of Appeals and reinstated the trial court’s judgment for Robel on her claim for intentional infliction of emotional distress. Id. at 55. Because Robel was successful on this claim, the Court found it unnecessary to consider Robel’s companion claim for negligent infliction of emotional distress. Id.

 


ISSUE #5:  Were the allegedly defamatory communications cited in the trial court’s findings capable of defamatory meaning?

 

-RULE-

DEFAMATION: A defamation plaintiff must prove the following four essential elements: (1) falsity, (2) an unprivileged communication, (3) fault, and (4) damages. Id. at 55 (citing Mark v. Seattle Times, 96 Wn.2d 473, 486, 635 P.2d 1081 (1981), cert. denied, 457 U.S. 1124, 102 S.Ct. 2942, 73 L.Ed. 2d 1339 (1982)) (emphasis added).

FALSITY: “Before the truth or falsity of an allegedly defamatory statement can be assessed, a plaintiff must prove that the words constituted a statement of fact, not an opinion. Because expressions of opinion are protected under the First Amendment, they are not actionable.” Id. (citing Camer v. Seattle Post-Intelligencer, 45 Wn.App. 29, 39, 723 P.2d 1195 (1986) (internal quotation marks and citations omitted) (emphasis added). “Whether the allegedly defamatory words were intended as a statement of fact or an expression of opinion is a threshold question of law for the court.” Id. (internal citations omitted).

TOTALITY OF THE CIRCUMSTANCES: To determine whether words should be viewed as nonactionable opinions, the court considers the totality of the circumstances surrounding those statements. Id. at 56.

DUNLAP 3-FACTOR TEST: To determine whether a statement is nonactionable, a court should consider at least (1) the medium and context in which the statement was published, (2) the audience to whom it was published, and (3) whether the statement implies undisclosed facts.” Id. (citing Dunlap v. Wayne, 105 Wn.2d 529, 539, 716 P.2d 842 (1986)).

 

-ANALYSIS-

THE VULGARISMS (I.E., “BITC-,” “CUN-,” “FUC-ING BITC-,” “FUC-ING CUN-“) ALONG WITH THE WORD “IDIOT”: The Court concluded that these vulgarisms along with the word “idiot” were plainly abusive words, but they were not intended to be taken literally as statements of fact. Id. Thus, they did not pass the threshold question of law.

THE WORDS “SNITCH,” “SQUEALER,” AND “LIAR”: The Court considered the totality of the circumstances and applied the Dunlap Three-Factor Test. It held as a matter of law that these words also constituted nonactionable opinions. Id. at 56.

Regarding the First Dunlap Factor (Medium & Context): the Court found that the oral statements were made in circumstances and places that invited exaggeration and personal opinion. Id. 

Regarding the Second Dunlap Factor (The Audience): the Court found that the employee audience (i.e., Fred Meyer co-workers and management personnel) was “prepared for mischaracterization and exaggeration” and would have registered the words, if at all, “as expressions of personal opinion, not as statements of fact.” Id. at 57. And customers hearing the words “would reasonably perceive that the speaker was an antagonistic or resentful co-worker.” Id. 

Regarding the Third Dunlap Factor (Whether the Words Implied Undisclosed Defamatory Facts): deli workers would have known the facts ostensibly underlying the words, and the words disclosed to customers (i.e., “that Robel was demoing pizzas because she had lied about her back”) “implies no undisclosed defamatory facts.” Id. (internal quotation marks omitted).

 

-CONCLUSION-

The Court concluded that all of the utterances were nonactionable opinions and reaffirmed the reversal of the trial court’s judgment on Robel’s defamation claim. Id.

 



NOTABLES & IMPLICATIONS:

DISABILITY

[~1]  This case adds an additional initial element to the hostile work environment rule for cases based on disability. He or she must be disabled within the meaning of the Washington Law Against Discrimination.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

[~2]  The standard for an outrage claim is very high (meaning that the conduct supporting the claim must be appallingly low). See id. at 51.

[~3]  Relationship Between Parties. In an outrage claim, “[t]he relationship between the parties is a significant factor in determining whether liability should be imposed.” Id. at 52 (citing Contreras v. Crown Zellerback Corp., 88 Wn.2d 735, 741, 565 P.2d 1173 (1977)). “The Contreras court emphasized that ‘added impetus’ is given to an outrage claim ‘[w]hen one in a position of authority, actual or apparent, over another has allegedly made racial slurs and jokes and comments.” Id. (citing Contreras v. Crown Zellerback Corp., 88 Wn.2d 735, 741, 565 P.2d 1173 (1977); see also White v. Monsanto Co., 585 So.2d 1205, 1210 (La. 1991) (stating that “plaintiff’s status as an employee may entitle him to a greater degree of protection from insult and outrage by a supervisor with authority over him than if her were a stranger”)). 

PERSONAL JOURNALS / DIARIES

[~4]  In Washington State, an employee’s personal journal entries regarding discrimination at work might be allowed by the court to support a claim of unlawful employment discrimination. See, e.g., id. at 41.

SEXUAL HARASSMENT

[~5]  Washington Law Against Discrimination prohibits sexual harassment in employment, with such claims being generally categorized as quid pro quo harassment claims or hostile work environment claims. See id. at 43 (citing DeWater v. State, 130 Wn.2d 128, 134-35, 921 P.2d 1059 (1996)) (internal citations and quotation marks omitted).

TITLE VII & WLAD

[~6]  “The [Washington Law Against Discrimination,] … which applies with equal force to sex based and disability based employment discrimination, is analogous to Title VII and the ADA.” Id. at 44.

[~7]  Although federal cases interpreting Title VII are not binding on the Court, they are instructive and supportive. See id. at 44.

VICARIOUS LIABILITY

 [~8]  Intentional or criminal conduct is not per se outside the cope of employment. Id. at 53.

[~9]  It is not the case that an employer will be vicariously liable only where it has specifically authorized an employee to act in an intentionally harmful or negligent manner. See id.

[~10]  An employer may not insulate itself from vicarious liability merely by adopting a general policy proscribing bad behavior that would otherwise be actionable. Id.

[~11]  The proper vicarious liability inquiry is whether the employee was fulfilling his or her job functions at the time he or she engaged in the injurious conduct. See id.

[~12]  When a servant steps aside from the master’s business in order to effect some purpose of his own, the master is not liable. Id. at 54 (citing Kuehn v. White, 24 Wn.App. 274, 277, 600 P.2d 679 (1979)) (internal quotation marks omitted).

[~13]  Where an employee’s acts are directed toward personal sexual gratification, the employee’s conduct falls outside the scope of his or her employment. See id.

WORKERS’ COMPENSATION ANTI-RETALIATION STATUTE

[~14]  To establish a claim of unlawful workers’ compensation retaliation, a plaintiff must prove (1) that the plaintiff filed a claim, (2) that the employer thereafter discriminated against the plaintiff is some way, and (3) that the claim and the discrimination were causally connected. See id. at 50. 

 


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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.

Blackburn v. Department of Social and Health Services, 186 Wn.2d 250 (Wash. 2016)

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)  Nine employees (Employees) of Western State Hospital (WSH) assert that their employer has illegally taken race into account when making staffing decisions in response to patients’ race-based threats or demands.

(2)  WSH is a division of the Department of Social and Health Services. [The Court] … refer[s] to the respondents collectively as the ‘State’ throughout this opinion.

(3)  After a six-day bench trial, the trial court found that WSH managers issued a staffing directive that prevented African-American staff from working with a violent patient making threats over the course of one weekend in 2011.

(4)  Despite this race-based staffing directive, the trial court entered a verdict for the State and dismissed Employees’ employment discrimination claims.

(5)  [The Supreme Court] … reverse[d] the trial court and [held] … that the State’s racially discriminatory staffing directive violates the Washington Law Against Discrimination (WLAD), RCW 49.60.180(3).

-Blackburn v. Department of Social and Health Services, 186 Wn.2d 250 (Wash. 2016).


ISSUE #1:  Were the Plaintiffs’ challenges to the trial court’s factual findings sufficient to disturb the trial court’s factual findings under the substantial evidence standard?

 

-RULE-

STATUTORY CONSTRUCTION (PRESUMPTION OF PROSPECTIVE APPLICATION):  The Court reviews findings of fact for substantial evidence. Id. at 256 (citing Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 352, 172 P.3d 688 (2007)). The party challenging the trial court’s factual findings had the burden to prove they are not supported by substantial evidence. Id. (referencing Fisher Props., Inc., v. Arden-Mayfair, Inc., 115 Wn.2d 364, 369, 798 P.2d 799 (1990)).

MEANING OF SUBSTANTIAL EVIDENCE:  Substantial evidence means evidence that is sufficient to persuade a rational, fair-minded person of the truth of the finding. Id. (citing Hegwine, 162 Wn.2d at 353) (internal citation and quotation marks omitted).

SUBSTITUTE JUDGMENT:  As long as the substantial evidence standard is met a reviewing court will not substitute its judgment for that of the trial court even though it might have resolved a factual dispute differently. Id. (citing Sunnyside Valley Irrig. Dist. v. Dickie, 149 Wn.2d 873, 879-80, 73 P.3d 369 (2003)) (internal quotation marks omitted).

DE NOVO REVIEW:  The Court reviews conclusions of law de novo. Id. (citing Robel v. Roundup Corp., 148 Wn.2d 35, 42, 59 P.3d 611 (2002); Hegwine, 162 Wn.2d at 348, 353).

 

-ANALYSIS-

In this case, the Court explained that Employees challenged various factual findings by the trial court generally related to the duration and frequency of the State’s race-based staffing practices. One staffing directive involved a communication that “no staff members of a certain race were to be assigned to a particular ward over the course of one weekend.” Significantly, the trial had found that this racial staffing directive lasted only one weekend and that the Employees were not subjected to similar staffing incidents. Accordingly, the Supreme Court found that the trial court “weighed the witnesses’ testimony and credibility and implicitly determined that other staffing decisions described were not substantially similar to the” subject racial staffing directive.

 

-CONCLUSION-

The Court held that substantial evidence supported the trial court’s factual findings, and based on the Court’s review of the record, the Plaintiffs’ challenges were not sufficient to disturb the trial court’s factual findings pursuant to the substantial evidence test.

 


ISSUE #2:  Did the employees prevail on their disparate treatment claim?

 

-RULE-

WLAD GENERALLY:  “The WLAD makes it unlawful for an employer ‘[t]o discriminate against any person in compensation or in other terms or conditions of employment because of … race.” Id. at 258 (citing RCW 49.60.180(3)).

DISPARATE TREATMENT:  Disparate treatment “is the most easily understood type of discrimination. The employer simply treats some people less favorably than others because of their race, color, religion, sex, or national origin.” Id. (citing Shannon v. Pay ‘N Save Corp., 104 Wn.2d 722, 726, 709 P.2d 799 (1985) (quoting Int’l Bhd. of Teamsters v. United States, 431 U.S. 324, 335 n.15, 97 S.Ct. 1843, 53 L.Ed.2d 396 (1977))).

VALID JUSTIFICATION:  “When an employee makes out a claim of disparate treatment under WLAD, like Title VII, the employer’s action is unlawful unless the employer has a valid justification.” Id. at 258-59 (referencing, e.g., Franklin County Sheriff’s Office v. Sellers, 97 Wn.2d 317, 328-29, 646 P.2d 113 (1982); Healey v. Southwood Psychiatric Hosp., 78 F.3d 128, 132 (3rd. Cir. 1996); Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am. v. Johnson Controls, Inc., 499 U.S. 187, 199-200, 111 S. Ct. 1196, 113 L.Ed.2d 158 (1991) (internal citation parenthetical phrases omitted). The employer’s valid justification is more commonly known as a bona fide occupational qualification (BFOQ).

BONA FIDE OCCUPATIONAL QUALIFICATION (BFOQ):  “RCW 49.60.180 allows employers to take protected characteristics into account in limited circumstances.” Id. at 259-260 (referencing RCW 49.60.180(1) (prohibition against discrimination in hiring does not apply if based on a BFOQ), (3) (permitting segregated washrooms and locker facilities on the basis of sex and allowing the Human Rights Commission to issue regulations or rulings” for the practical realization of equality of opportunity between the sexes”), (4) (prohibition against discrimination in advertising, job applications, and preemployment inquiries does not apply if based on a BFOQ)).

THE BFOQ TEST:  “In order to satisfy the BFOQ standard, the employer must prove (1) that the protected characteristic is essential to job purposes or (2) that all or substantially all persons with the disqualifying characteristic would be unable to efficiently perform the job.” Id. (citing Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 358, 172 P.3d 688 (2007)).

 

-ANALYSIS-

DISPARATE TREATMENT:  In this case, the trial court held that the Employees’ failed to establish a disparate treatment claim notwithstanding the subject staffing orders, because the orders were likely an overreaction. The Supreme Court disagreed finding that “this does not change the resulting discriminatory nature of the staffing decisions … [t]hese overt race-based directives affected staffing decisions in such a manner as to constitute discrimination in ‘terms or conditions of employment becuase of … race’ in violation of RCW 49.60.180(3).” Id. 

BFOQ DEFENSE:  Moreover, the Supreme Court found that the State had no valid legal justification for its determination; finding that none of the statutory exceptions under RCW 49.60.180 applied because they are based on sex, not race, and even if they applied–“which is doubtful”–the state waived the BFOQ defense.

 

-CONCLUSION-

The Court held that the trial court erred in concluding that the Employees failed to establish a disparate treatment claim and further determined that the State had no valid legal justification for its discrimination.

 


ISSUE #3:  Did the employees prevail on their hostile work environment claim?

 

-RULE-

HOSTILE WORK ENVIRONMENT:  “RCW 49.60.180(3) prohibits harassment based on a protected characteristic that rises to the level of a hostile work environment.” Id. at 260. “An employee must demonstrate four elements for a hostile work environment claim: that the harassment (1) was unwelcome, (2) was because of a protected characteristic, (3) affected the terms or conditions of employment, and (4) is imputable to the employer.” Id. (citing Glassgow v. Ga.-Pac. Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708 (1985); see also Fisher v. Tacoma Sch. Dist. No. 10, 53 Wn.App. 591, 595-96, 769 P.2d 318 (1989)).

THIRD ELEMENT (AFFECTED THE TERMS OR CONDITIONS OF EMPLOYMENT):  The third element–affected the terms or conditions of employment–“requires that the harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id. at 261 (citing Glasgow, 103 Wn.2d at 406) (internal quotation marks omitted). “Harassing conduct has also been described as ‘severe and persistent,’ and it must be determined ‘with regard to the totality of the circumstances.'” Id. (citing Glasgow, 103 Wn.2d 406-07).

THIRD ELEMENT CRITERIA:  “The Court of Appeals has adopted criteria ‘[t]o determine whether the harassment is such that it affects the conditions of employment … : the frequency and severity of the discriminatory conduct; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.'” Id. at n.4 (citing Washington v. Boeing Co., 105 Wn.App. 1, 10, 19 P.3d 1041 (2000) (citing Sangster v. Albertson’s, Inc., 99 Wn.App. 156, 163, 991 P.2d 674 (2000) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)))).

 

-ANALYSIS-

In this case, the trial court held that the Employees did not meet the requirements of the third element; and, thereupon, the Supreme Court found that “the trial court applied the correct legal standard and did not err in concluding that the staffing decision over the course of a single weekend did not rise to the level of sever or pervasive harassment.” Id.

 

-CONCLUSION-

The Court held that “based on the trial court’s factual findings, which  we find are supported by substantial evidence, the trial court did not err in dismissing Employee’s hostile work environment claim.”

 


ISSUE #4:  Are the employees entitled to relief in the form of damages, declaratory and injunctive relief, interest, attorney fees, and costs?

 

-RULE-

REMEDIES:  RCW 49.60.030(2) allows successful plaintiffs in WLAD actions to recover damages, injunctive relief, costs, and attorney fees.” Id. 

 

-ANALYSIS-

Here, the Court determined that the plaintiff Employees were entitled to relief, because the Court had found that they both prevailed on their disparate treatment claim and complied with RAP 18.1 and RCW 49.60.030(2).

 

-CONCLUSION-

The Court remanded the “case to the trial court to determine the appropriate damages and reasonable attorney fees to award in” the case; and on “remand, the trial court should also consider whether injunctive relief is appropriate and, if so, the trial court will be responsible for crafting the scope of and enforcing any injunction issued.” Id.

 



NOTABLES & IMPLICATIONS:

TITLE VII

[~1]   “At the federal level, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, also contains antidiscrimination provisions with some similar statutory language” to WLAD. Id. at 257.

[~2]  “[W]ashington courts often look to federal case law on Title VII when interpreting the WLAD.” Id. (referencing, e.g., Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 180, 23 P.3d 440 (2001)).

[~3]  “We view Title VII cases as ‘a source of guidance,’ but we also recognize that ‘they are not binding and that we are free to adopt those theories and rationale which best further the purposes and mandates of our state statute.'” Id. (citing Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 361-62, 753 P.2d 517 (1988)).

WASHINGTON LAW AGAINST DISCRIMINATION

[~4]  “Since 1949, the WLAD has existed to protect individuals from discrimination on the basis of race, among other protected characteristics.” Id. 

[~5]  “The WLAD ‘shall be consruted liberally’ to accomplish its antidiscrimination purposes.” Id. (citing RCW 49.60.020).

[~6]  “RCW 49.60.180 prohibits racial discrimination in employment.” Id.

 


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.

Loeffelholz v. University of Washington, 175 Wn.2d 264 (Wash. 2012)

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)  In 2006, the legislature amended the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW, to include sexual orientation as a protected class.

(2)  After the Amendment, [the Plaintiff] Debra Loeffelholz sued the University of Washington and her superior, James Lukehart (collectively ‘University’), for discrimination based on sexual orientation.

(3)  [Loeffelholz] alleges the sexual-orientation-based discrimination created a hostile work environment based on a series of preamendment acts and one potentially postamendment act.

(4)  The final allegedly discriminatory act–and the only act to potentially occur postamendment–occurred during Lukehart’s last group meeting before deploying to Iraq. During this meeting, he told the group that he was ‘going to come back a very angry man’ from Iraq.

(5)  [The Court held] that the WLAD amendment is not retroactive and that the preamendment conduct is not actionable as it was not unlawful when it occurred.

(6)  The postamendment, allegedly discriminatory comment is arguably similar enough to the preamendment conduct to survive summary judgment.

(7)  [The Court] affirms the Court of Appeals only in reversing summary judgment for the University and clarify that the Court of Appeals erred in allowing recovery for preamendment conduct.

-Loeffelholz v. University of Washington, 175 Wn.2d 264 (Wash. 2012).


ISSUE #1:  Does the WLAD amendment apply retroactively and, if not, is preamendment discriminatory conduct actionable?

 

-RULE-

STATUTORY CONSTRUCTION (PRESUMPTION OF PROSPECTIVE APPLICATION):  The Court “presumes that a statute applies prospectively, unless (1) the legislature intends otherwise, or (2) unless the amendment is remedial in nature.” Loeffelholz v. University of Washington, 175 Wn.2d 264, 271, 285 P.3d 854 (Wash. 2012) (internal citations and quotation marks omitted) (emphasis added). The Court may determine if “the legislature intends otherwise” by looking to legislative history. Id. (internal citations omitted). Moreover, “a statute is not remedial when it creates a new right of action.” Id. (internal citations omitted).

 

-ANALYSIS-

(1) PLAIN LANGUAGE:  The Court found that the plain language of the WLAD amendment at issue did not explicitly state that it applied retroactively; it therefore concluded that the plain language supported prospective application. Id. at 72 (internal citations omitted).

(2) LEGISLATIVE HISTORY:  The Court found that the final bill report to the WLAD amendment supported prospective application. It states that “the amendment expanded the WLAD to prohibit discrimination based on a person’s sexual orientation.” Id. (internal citations omitted). The Court reasoned that the “language implies that before the amendment, WLAD did not protect against discrimination based on sexual orientation.” Id.

(3) THE MORGAN TWO-PART INQUIRY INAPPLICABLE:  The Court found the Morgan Two-Part Inquiry inapplicable to this case. In Antonius v. King County, 153 Wn.2d 256, 264, 103 P.3d 729 (2004), the court approved the two-part inquiry introduced in Nat’l R.R. Passenger Corp v. Morgan, 536 U.S. 101, 115, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002)), for purposes of deciding if a hostile work environment claim is timely. Id. at 273 (internal citations omitted). Under the Inquiry, the court is to determine (1) “whether the acts about which an employee complains are part of the same actionable hostile work environment practice, and if so,” (2) “whether any act falls within the statutory time period.” Id. (internal citations omitted). However, here, the Court distinguished Antonius from the instant case, pointing out that “recovery for actions outside the statute of limitations does not raise the same due process concerns as does recovery for conduct that was not unlawful when committed.” Id.

(4) PREAMENDMENT CONDUCT AS BACKGROUND EVIDENCE:  The Court found that “while preamendment conduct is unrecoverable, it is still admissible as background evidence to prove why postamendment conduct is discriminatory.” Id. at 273-74 (internal citations omitted). The Court noted that the court in Graves v. District of Columbia, 843 F.Supp.2d 106 (D.D.C.2012) recognized that conduct that is non-actionable for purposes of liability may sometimes be used for a particular purpose in support of actionable claims.” Antonius v. King County, 153 Wn.2d at 274 (citing Graves 843 F.Supp.2d at 111).

As an example, the Court explained that “earlier conduct may be relevant to prove the intent behind post-effective-date conduct.” Id. (internal citations omitted). Here, the Court examined the “totality of the circumstances” and found that Ms. Loeffelholz could use “the preamendment conduct to explain why the ‘angry man’ comment constituted sexual orientation based harassment.” Id. 

The Court further concluded that their finding was “supported by the legislature’s mandate that WLAD provisions be constured liberally … to prevent discrimination that threatens not only the rights and proper privileges of the State’s inhabitants but menaces the institutions and foundation of a free democratic state.” Id. (internal citations omitted).

 

-CONCLUSION-

The Court held that based on the plain language and legislative history, the Washington Law Against Discrimination amendment applies prospectively only; it is not retroactive. However, “because of the unique nature of a hostile work environment claim, the unrecoverable preamendment conduct is admissible as background evidence to give context to any postamendment discriminatory conduct.” Id. at 278.

 


ISSUE #2:  Is a single comment made postamendment a discriminatory act?

 

-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 275 (internal citations and quotation marks omitted) (emphasis added).

TERMS & CONDITIONS OF EMPLOYMENT:  The third element is met “if the harassment is sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment, to be determined with regard to the totality of the circumstances.” Id. (internal citations and quotation marks omitted).

 

-ANALYSIS-

TOTALITY OF THE CIRCUMSTANCES:  The Court considered the totality of the circumstances, including the preamendment conduct, and concluded that “the ‘angry man’ comment establishes a prima facie hostile work environment claim.” Id. at 275-76. The Court determined both that “the standard for linking discriminatory acts together in the hostile work environment context is not high” and that “the acts must have some relationship to each other to constitute part of the same hostile work environment claim.” Id. (internal citations omitted).

In this case, the Court found that Mr. Lukehart made the “angry man” comment to a group, but “he conceivably intended it to have special meaning for Ms. Loeffelholz.” Id. at 276. Ms. Loeffelholz “knew that Lukehart disliked lesbians and that he had anger management problems as illustrated by his previous comments that he had a volatile temper and kept a gun.” Id. The Court concluded that “taken in the context of such comments, a reasonable juror could infer from these events that the “angry man” comment was a natural extension of the conduct that made up the preamendment oppressive work environment.” Id. at 276-77.

A SINGLE COMMENT MAY BE ENOUGH:  The Court found that “the preamendment conduct establishes that the ‘angry man’ comment could be severe enough, on its own, to alter the conditions of employment and establish a hostile work environment.” Id. at 277.

 

-CONCLUSION-

The Court found that preamendment conduct establishes that one comment–the “angry man” comment in this case–“could be severe enough, on its own, to alter the conditions of employment and establish a hostile work environment.” Id. at 278. Thus, assuming the “‘angry man’ comment was made postamendment, a genuine issue of material fact exists that prevents summary judgment.” Id. Accordingly, the Court affirmed “only the Court of Appeals reversal of summary judgment, and reversed its reasoning, which allowed recovery for preamendment conduct.” Id. 

 



NOTABLES & IMPLICATIONS:

HOSTILE WORK ENVIRONMENT

[~1]   The standard for linking discriminatory acts together in the hostile work environment context is not high”; “the acts must have some relationship to each other to constitute part of the same hostile work environment claim.” Id. at 275-76 (internal citations omitted).

[~2]  While preamendment conduct is unrecoverable, it is still admissible as background evidence to prove why postamendment conduct is discriminatory.” Id. at 273-74 (internal citations omitted). Thus, it appears that comments occurring outside of the statute of limitations in other cases might be analogized to preamendment conduct in this case.

 


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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.

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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