Hostile Work Environment Archives - Washington Employment Law Digest

May 26, 2022November 19, 2022

Davis v. West One Automotive Group, 140 Wn.App. 449 (Div. 3 2007)

This is a case summary of Davis v. West One Automotive Group, 140 Wn.App. 449 (Div. 3 2007), petition denied, 163 Wn.2d 1039 (Wash. 2008). Subjects include:

» RACE AS A PROTECTED CLASS

» HOSTILE WORK ENVIRONMENT

» DISPARATE TREATMENT

» RETALIATORY DISCHARGE

IMPORTANT: This article is for informational purposes only and is based upon my point of view. This is not a resource for the actual and complete appellate court opinion. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.

Advertisement

**Davis v. West One Automotive Group, 140 Wn.App. 449 (Div. 3 2007), petition denied, 163 Wn.2d 1039 (Wash. 2008)**

case summarY – 12 PRIMARY Facts:

[1] Mark Davis, an African American, was hired as a salesman for West One in February 2005 and terminated in July 2005.

[2] During the course of his five-month employment, Mr. Davis experienced racially charged comments in the workplace.

[a] On one occasion, West One manager and Mr. Davis’s supervisor, Dan Willard, asked Mr. Davis if he knew “why blacks have a day off on Martin Luther King Day?” When Mr. Davis said he did not know, Mr. Willard responded, “Because they shot and killed his black a[##].” Mr. Davis told Mr. Willard the comment was inappropriate and not to make such a comment again.

[b] Another time, Mr. Willard stated, “Blacks on the eastside, Mexicans on the west; hell I don’t know.” Mr. Davis was offended, and told Mr. Willard so.

[c] A third incident involved Mr. Willard walking by Mr. Davis’s desk, kicking it and remarking, “What’s up, bitc[#].” Mr. Davis was offended, regarding “bitc[#]” as a derogatory term some African American men use to refer to each other. Mr. Davis again told Mr. Willard he was offended.

[3] Fellow sales employee, Joe Klein, also made comments that Mr. Davis found racially offensive.

[a] On an occasion when Mr. Davis had customers in the finance office and his telephone rang, Mr. Klein stopped him from answering stating, “Hey, Buckwheat, you can’t get that call.” Mr. Davis was offended and asked Mr. Klein to refer to him by name.

[b] One day after Mr. Davis had sold a car to a woman who worked with his wife, and whose husband had previously bought a car from Mr. Klein, Mr. Klein grew angry and stated, “if you’re going to be here at West One Automotive Group, you need to do things our way.”

[c] Another time, some customers arrived to see Mr. Davis and Mr. Klein told him he had “black people” waiting for him. Mr. Davis was offended, noting he did not refer to Mr. Klein’s customers as ” white people.”

[d] Mr. Davis complained to West One Human Resources about Mr. Klein’s “Buckwheat” comment. No disciplinary action was taken.

[4] At a subsequent staff meeting, Mr. Willard discussed generally with the entire staff that, “no use of any type of insensitive name, nickname or not, would be tolerated.”

[5] Because no action had been taken against Mr. Klein and because he regarded Mr. Willard as “the worst offender of racial discrimination,” Mr. Davis did not complain again.

[6] In June 2005, Mr. Davis was salesman of the month. Per customary practice, this honor entitled him to drive any vehicle on the lot for the month, enjoy free gasoline and have his picture in the newspaper.

[7] Due to an error, Mr. Davis’s picture was not put in the paper; instead another salesman was pictured and identified as salesman of the month. When Mr. Davis discovered the error and brought it to West One’s attention, West One refused to place a corrected photo in the newspaper.

[8] As salesman of the month, Mr. Davis chose to drive a Bavarian Motor Works (BMW) vehicle, and began using it on a Saturday.

[a] On Sunday, Mr. Willard told Mr. Davis that the BMW needed to be returned for service.

[b] Mr. Davis believed this was not true and the car had already been serviced, so he drove the car home.

[c] Mr. Davis called in ill on Monday and asked to speak to Mr. Willard. When Mr. Willard did not respond to his page, he asked the receptionist to tell Mr. Willard he was sick.

[d] Approximately two days later, Mr. Davis returned to West One, driving the BMW.

[e] When he returned, he was terminated.

[9] Mr. Davis brought this action under WLAD, chapter 49.60 RCW, alleging hostile work environment, disparate treatment and retaliatory discharge. West One moved for summary judgment dismissal.

[10] In support of its motion, West One submitted two declarations of counsel, attaching various documents, extracts of Mark Davis’s deposition and declarations of Dan Willard, Joe Klein and other West One employees.

[a] West One employees stated that Mr. Davis was habitually late to work, missed shifts or left during shifts, and was reluctant to assist in tasks expected of the sales staff.

[b] With respect to the particular discriminatory statements identified by Mr. Davis, neither Mr. Willard nor Mr. Klein denied making the statements at issue.

[c] Mr. Klein explained that he did not consider “Buckwheat” to be a racially charged moniker and did not intend to offend Mr. Davis.

[c] Mr. Willard offered that his reasons for terminating Mr. Davis were his ongoing unreliability and, most importantly, his failure to return the BMW for several days despite having been asked to do so.

[11] None of the West One employee declarations addressed the issue of Mr. Davis not being recognized in the newspaper as salesman of the month. Mr. Davis stated at his deposition that he believed the error was initially a “screw-up.” Once he discovered the error and brought it to West One’s attention, he was recognized as salesman of the month, but West One refused to place his picture in the paper.

[12] The trial court granted West One’s motion for summary judgment dismissing all claims. This appeal followed.

Davis v. West One Automotive Group, 140 Wn.App. 449 (Div. 3 2007), petition denied, 163 Wn.2d 1039 (Wash. 2008) (internal citations omitted) (paragraph formatting and hyperlinks added).

ISSUE #1: Was the trial court’s summary-judgment dismissal of Plaintiff’s hostile-work-environment claim proper?

[1-1] FACTS ADDUCED ON SUMMARY JUDGMENT: “The facts as adduced on summary judgment are set forth here in a light most favorable to the non-moving party.” Davis, 163 Wn.2d at 452-53 (citing Marquis v. City of Spokane, 130 Wash.2d 97, 105, 922 P.2d 43 (1996)).

[1-2] SUMMARY JUDGMENT: The Court “review[s] orders of summary judgment dismissal de novo, engaging in the same inquiry as the trial court.” Id. at 456 (citing Korslund v. DynCorp Tri-Cities Servs., Inc., 156 Wash.2d 168, 177, 125 P.3d 119 (2005); RAP 9.12).

[1-2a] APPROPRIATE WHEN NO GENUINE ISSUES OF MATERIAL FACT AND MOVING PARTY ENTITLED TO JUDGMENT AS A MATTER OF LAW: “Summary judgment is appropriate only if the ‘pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'” Id. (citing CR 56(c)).

[1-2b] COURT MUST CONSIDER FACTS AND ALL REASONABLE INERENCES FROM THOSE FACTS IN LIGHT MOST FAVORABLE TO NONMOVING PARTY: “The court must consider the facts submitted and all reasonable inferences from those facts in the light most favorable to the nonmoving party.” Id. (citing Marquis, 130 Wash.2d at 105, 922 P.2d 43; Clements v. Travelers Indem. Co., 121 Wash.2d 243, 249, 850 P.2d 1298 (1993)).

[1-2c] PURPOSE IS TO AVOID A USELESS TRIAL: “The purpose of summary judgment, after all, is to avoid a ‘useless trial.'” Id. (citing Lamon v. McDonnell Douglas Corp., 91 Wash.2d 345, 349, 588 P.2d 1346 (1979)) (internal citations and quotation marks omitted).

[1-2d] TO OVERCOME SUMMARY JUDGMENT, DISCRIMINATION-CASE PLAINTIFF’S MUST ESTABLISH SPECIFIC AND MATERIAL FACTS TO SUPPORT EACH ELEMENT OF A PRIMA FACIE CASE: “In order to overcome a motion for summary judgment, a plaintiff in a discrimination case must establish specific and material facts to support each element of a prima facie case.” Id. (citing Marquis, 130 Wash.2d at 105, 922 P.2d 43).

[1-2e] QUESTIONS OF FACT DETERMINED AS A MATTER OF LAW ONLY WHERE REASONABLE MINDS CAN REACH BUT ONE CONCLUSION: “Questions of fact can be determined as a matter of law only where reasonable minds can reach but one conclusion.” Id. (citing Sherman v. State, 128 Wash.2d 164, 184, 905 P.2d 355 (1995)).

[1-2f] IN DISCRIMINATION CASES, SUMMARY JUDGMENT IN FAVOR OF EMPLOYER IS OFTEN INAPPROPRIATE: “Summary judgment in favor of the employer in a discrimination case is often inappropriate because the evidence will generally contain reasonable but competing inferences of both discrimination and nondiscrimination that must be resolved by a jury.” Id. (citing Kuyper v. Dep’t of Wildlife, 79 Wash.App. 732, 739, 904 P.2d 793 (1995), review denied, 129 Wash.2d 1011, 917 P.2d 130 (1996)).

[1-3] HOSTILE WORK ENVIRONMENT (BASED ON RACE): “RCW 49.60.180(3) prohibits an employer from discriminating against an employee ‘in other terms or conditions of employment because of … race.'” Davis, 163 Wn.2d at 456-57 (hyperlinks added).

[1-3a] THE PRIMA FACIE CASE: “To establish a prima facie case he must show that he suffered harassment that was[:]

(1) unwelcome,

(2) because he was a member of a protected class,

(3) affected the terms and conditions of his employment, and

(4) imputable to the employer.

Id. at 457 (citing Antonius v. King County, 153 Wash.2d 256, 261, 103 P.3d 729 (2004) (citing Glasgow v. Georgia-Pac. Corp., 103 Wash.2d 401, 406-07, 693 P.2d 708 (1985); see also Clarke v. Office of Attorney Gen., 133 Wash.App. 767, 785, 138 P.3d 144 (2006), review denied, 160 Wash.2d 1006, 158 P.3d 614 (2007)) (paragraph formatting added).

[1-3b] FIRST ELEMENT (UNWELCOME): “Conduct is unwelcome if the plaintiff did not solicit or incite it.” Id. (citing Glasgow, 103 Wash.2d at 406, 693 P.2d 708).

[1-3c] THIRD ELEMENT (TERMS AND CONDITIONS OF EMPLOYMENT): “The third element requires that the harassment be sufficiently pervasive as to alter the conditions of employment and create an abusive working environment.” Id. (citing Glasgow, 103 Wash.2d at 406, 693 P.2d 708). “Whether the comments here affected the conditions of Mr. Davis’s employment is a question of fact.” Id.

Totality of the Circumstances Test: “To determine whether West One’s conduct was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment, we look at the totality of the circumstances.” Id. (citing Adams v. Able Bldg. Supply, Inc., 114 Wash.App. 291, 296, 57 P.3d 280 (2002)).

[1-3e] FOURTH ELEMENT (IMPUTABLE TO EMPLOYER): “To establish the fourth element Mr. Davis must show West One knew or should have known of the comments and failed to take reasonable corrective action to end the harassment.” Id. at 458 (citing Francom v. Costco Wholesale Corp., 98 Wash.App. 845, 853-54, 991 P.2d 1182, review denied, 141 Wash.2d 1017, 10 P.3d 1071 (2000); Campbell v. State, 129 Wash.App. 10, 20, 118 P.3d 888 (2005), review denied, 157 Wash.2d 1002, 136 P.3d 758 (2006)).

[1-4] FIRST AND SECOND ELEMENTS (UNWELCOME and MEMBER OF PROTECTED CLASS, RESPECTIVELY): In this case, the Court initially determined as follows: “The record on summary judgment provides ample evidence to sustain the first and second elements.” Davis, 163 Wn.2d at 457. It based its finding on the following:

» “Mr. Davis testified at deposition and by affidavit that he was subjected to racially derogatory comments, which he did not welcome and which he found offensive.” Id. West One argued “that certain comments … were not racially motivated.” See id.

∴ Court’s Analysis: “While West One argues that certain comments, however offensive to Mr. Davis, were not racially motivated, this cannot be determined as a matter of law.” Id.

“Reasonable minds could find that Mr. Willard’s statements regarding Dr. Martin Luther King, Jr. were racially charged, and not merely ‘odd’ as West One suggests.” Id.

» “A jury could also find that calling an African American man a ‘bitc[#]’ has racial overtones, as understood by Mr. Davis.” Id. Thus, the Court “reject[ed] West One’s invitation to take ‘judicial notice’ that such a term has no racial connotation, but is invariably a gender-based term.” Id. (internal citation omitted).

[1-5] THIRD ELEMENT (TERMS AND CONDITIONS OF EMPLOYMENT): In this case, the Court initially determined as follows: “Whether the comments here affected the conditions of Mr. Davis’s employment is a question of fact.” Id. Thereafter, the Court found facts showing that the harassment was sufficiently pervasive as to alter the conditions of employment and create an abusive working environment, as follows:

» “Mr. Davis asserts he was humiliated by these comments. He claims emotional distress.” Id.

» “The record shows Mr. Davis was often late and absent from work.” Id.

» “There was friction between him and other employees.” Id.

» “When he called in ill a few days before his termination, Mr. Davis testified that he was ‘[p]robably mentally sick, drained.'” Id. at 457-58 (alteration in original).

∴ Court’s Analysis: Based upon the foregoing, the Court concluded as follows: “An inference could be drawn that this was the result of the hostile work environment.” Id. at 458.

[1-5a] TOTALITY OF THE CIRCUMSTANCES

∴ Court’s Analysis: Next, the Court applied the Totality-of-the-Circumstances Test and concluded as follows: “Looking at all the evidence in the light most favorable to Mr. Davis, as required, we conclude he had raised a question of fact with regard to the third element of this claim.” Id.

[1-6] FOURTH ELEMENT (IMPUTABLE TO EMPLOYER): In this case, the Court both identified facts showing that West One knew or should have known of the subject comments and it considered facts regarding whether West One took reasonably corrective action to end the harassment, as follows:

» “Mr. Davis reported the ‘Buckwheat’ comment by Mr. Klein.” Id.

∴ Court’s Analysis: Mr. Davis “was not required to report the comments by Mr. Willard, as Mr. Willard was his supervisor.” Id.

» “The comments occurred openly in the work place.” Id.

» “West One did respond to the one comment Mr. Davis reported by telling all staff during a general staff meeting that use of insensitive names would not be tolerated.”

∴ Court’s Analysis: “Whether this was sufficient to end the harassment is a question of fact.” Id. (internal citations omitted).

[1-7] NUMEROUS FACTUAL ISSUES SURROUND THE HOSTILE WORK ENVIRONMENT CLAIM — SUMMARY JUDGMENT DISMISSAL REVERSED: In this case, the Court held as follows: “Given the numerous factual issues surrounding Mr. Davis’s hostile work environment claim, we reverse the superior court’s order granting summary judgment dismissal.” Id. at 458.
.

ISSUE #2: Was the trial court’s summary-judgment dismissal of Plaintiff’s disparate treatment claim proper?

[2-1] DISPARATE TREATMENT — THE PRIMA FACIE CASE: “To establish a prima facie case of racial discrimination based on disparate treatment, an employee must show that[:]

(1) the employee belongs to a protected class;

(2) the employer treated the employee less favorably in the terms or conditions of employment

(3) than a similarly situated, nonprotected employee,

(4) who does substantially the same work.

Davis, 163 Wn.2d at 459 (citing Washington v. Boeing Co., 105 Wash.App. 1, 13, 19 P.3d 1041 (2000)) (internal citation omitted) (paragraph formatting added).

“Mr. Davis … claims the court erred in dismissing his claim of disparate treatment.” Id. at 458.

[2-2] MATERIAL ALLEGATIONS OF DISPARATE TREATMENT: THERE ARE DISPUTED ISSUES OF FACT FOR THE JURY: In this case, “Mr. Davis alleges three specific instances of disparate treatment.” Id. at 459.

SPECIFIC INSTANCE #1 — THE PICTURE:

» “First … [Mr. Davis] claims his picture was not put in the paper when he was salesman of the month, as was custom.” Id.

» “West One claims this was a mistake.” Id.

» “Mr. Davis testified that when he brought the mistake to West One’s attention, it refused to correct the error by placing his picture in the paper.” Id.

∴ Court’s Analysis: “Whether West One’s actions were a mere mistake or support a claim of disparate treatment is a disputed question of fact.” Id.

SPECIFIC INSTANCE #2 — THE CAR:

» “Mr. Davis next alleges he was treated less favorably than other similarly situated employees because he was not permitted to drive any car he wanted as salesman of the month, though Mr. Klein was always permitted to do so.” Id.

» “When Mr. Davis was salesman of the month, he elected to drive a BMW. When he took the BMW, he was told to return it for service.” Id.

∴ Court’s Analysis: “There is a factual dispute about whether service was necessary. This dispute presents a question of fact for a jury.”

SPECIFIC INSTANCE #3 — THE HARSHER DISCIPLINE:

» “Mr. Davis claims he was held to a higher standard than other employees; he was disciplined more harshly for missing work and being late than were his co-workers.” Id.

» “West One disputes this claim.” Id.

∴ Court’s Analysis: “There is conflicting evidence as to the tardiness and truancy of Mr. Davis and other employees, and as to West One’s tolerance, or not, of this behavior.”

[2-5] DISPARATE TREATMENT: SUMMARY JUDGMENT DISMISSAL WAS INAPPRORIATE — REVERSED: “On this record summary judgment was not appropriate. We reverse the superior court’s order granting summary judgment dismissal of Mr. Davis’s disparate treatment claim.” Id. at 459.

ISSUE #3: Was the trial court’s summary-judgment dismissal of Plaintiff’s retaliatory-discharge claim proper?

[3-1] RETALIATORY DISCHARGE (GENERALLY): “It is an unfair practice for any employer … to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter.” Davis, 163 Wn.2d at 460 (citing Kahn v. Salerno, 90 Wash.App. 110, 128, 951 P.2d 321 (quoting RCW 49.60.210(1)), review denied, 136 Wash.2d 1016, 966 P.2d 1277 (1998)). “An employer need only be motivated in part by retaliatory influences when discharging an employee engaged in protected activity to violate the statute.” Id. (internal citation omitted).

[3-1a] THE PRIMA FACIE CASE: “In order to establish a prima facie case of retaliatory discharge, Mr. Davis must show

(1) he engaged in a statutorily protected activity;

(2) he was discharged or had some adverse employment action taken against him; and

(3) retaliation was a substantial motive behind the adverse employment action.

Id. (citing Campbell v. State, 129 Wash.App. 10, 22-23, 118 P.3d 888 (2005), review denied, 157 Wash.2d 1002, 136 P.3d 758 (2006)).

[3-2] BURDEN-SHIFTING FRAMEWORK (GENERALLY): “Because Mr. Davis established a prima facie case of retaliation, the burden shifted to West One to present admissible evidence of its legitimate reason for the discharge.” Id. at 460 (citing Renz v. Spokane Eye Clinic, P.S., 114 Wash.App. 611, 618, 60 P.3d 106 (2002)).

“Mr. Davis argues the court erred in dismissing his retaliation claim.” Davis, 163 Wn.2d at 460.

[3-3] RETALIATORY DISCHARGE: DAVIS ESTABLISHES A PRIMA FACIE CASE: “Mr. Davis claims he was fired for reporting the hostile work environment.”

∴ Court’s Analysis (Elements #1, #2): In this case, the Court found that “[t]his is a protected activity covered by statute and his termination qualifies as an adverse employment action.” Id. at 460 (citing Campbell v. State, 129 Wash.App. 10, 22, 118 P.3d 888 (2005), review denied, 157 Wash.2d 1002, 136 P.3d 758 (2006)).

∴ Court’s Analysis (Element #3): With regard to element #3 (retaliation was a substantial motive behind the adverse employment action), the Court found as follows: “It is unclear if retaliation was a substantial motive behind the termination. The evidence presented at summary judgment would support a finding either way on the causation issue. This is a jury question.” Id. at 460.

[3-4] BURDEN-SHIFTING FRAMEWORK (GENERALLY): EMPLOYER PRESENTED EVIDENCE OF LEGITIMATE BASIS FOR DISCHARGE: DAVIS SHOWED PRETEXT: In this case, the Court determined the following facts:

» “West One presented testimony that it terminated Mr. Davis because he refused to return the BMW as requested.” Id.

» “Mr. Davis admitted he knew West One had asked he return the vehicle, but that he kept the car for several days and believed West One’s explanation that the car needed service was false.” Id.

» He was terminated immediately upon returning to work with the vehicle. Id. at 460-61.

» Neither party offers any evidence of service records. Id. at 461.

∴ Court’s Analysis: The Court implicitly determined that Defendant West One presented admissible evidence of its legitimate reason for the discharge. See id. at 461. Accordingly, the Court found that Davis presented facts raising “a genuine issue of material fact showing West One’s proffered reason for his termination was a pretext” for discrimination. EDITOR’S NOTE: the plaintiff’s duty to establish pretext is the third an final step of the McDonnel Douglas Burden-Shifting Framework. See id.

[3-5] DAVIS RAISED GENUINE ISSUES OF MATERIAL FACT REGARDING PRETEXT — SUMMARY JUDGMENT DISMISSAL OF THE RETALIATION CLAIM WAS INAPPROPRIATE: The Court concluded as follows: “Viewing the evidence in a light most favorable to Mr. Davis, as we must on summary judgment, we conclude that Mr. Davis has presented facts that raise a genuine issue of material fact whether West One’s proffered reason for his termination was a pretext.” Id. at 461 (citing Renz, 114 Wash.App. at 619, 60 P.3d 106).

“Summary judgment dismissal of Mr. Davis’s retaliation claim was not appropriate.” Id.

NOTABLES & IMPLICATIONS:

OVERCOMING SUMMARY JUDGMENT IN DISCRIMINATION CASES

(1) “In order to overcome a motion for summary judgment, a plaintiff in a discrimination case must establish specific and material facts to support each element of a prima facie case.” Id. (citing Marquis, 130 Wash.2d at 105, 922 P.2d 43).

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 Washington Employment Law Digest or the author of this article. By reading this article, you agree to our Disclaimer / Terms-of-Use / Privacy Policy.

July 13, 2021May 26, 2022

Sangster v. Albertson’s Inc., 99 Wn.App. 156 (Div. 3 2000)

This is a case summary of Sangster v. Albertson’s Inc., 99 Wn.App. 156, 991 P.2d 674 (Div. 3 2000). Subjects include, but are not limited to the following:

» SEXUAL HARASSMENT BY SUPERVISOR

» IMPUTING HARASSMENT

» FARAGHER-ELLERTH AFFIRMATIVE DEFENSE

IMPORTANT: This article is for informational purposes only and is based upon my point of view. This is not a resource for the actual and complete appellate court opinion. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.

Advertisement

Sangster v. Albertson's Inc., 99 Wn.App. 156, 991 P.2d 674 (Div. 3 2000) — **Sangster v. Albertson’s Inc., 99 Wn.App. 156, 991 P.2d 674 (Div. 3 2000)**

case summarY – 12 Facts:

[1] In 1989, Brenda Sangster started working in the service deli Department of the Albertson’s store in Lewiston, Idaho.

[2] In December 1992, she was promoted to service deli manager in the Clarkston[, Washington] Albertson’s store.

[3] Approximately two and one-half years later, she resigned her position at the Clarkston store and returned to a nonmanager position at the Lewiston Albertson’s.

[4] During Ms. Sangster’s tenure as deli manager at the Clarkston Albertson’s, the store director was Terry Myers.

[5] Ms. Sangster claims that while she was an employee at the Clarkston Albertson’s store, she was the victim of Mr. Myers’ sexual harassment.

[6] In October 1996, she filed a sexual harassment action against Albertson’s and Mr. Myers.

[7] The type of conduct about which Ms. Sangster complains is summarized as follows:

[A] Ms. Sangster was constantly referred to as “honey,” “sweety,” and “little girl” by Mr. Myers.

[B] Mr. Myers made sexually suggestive and demeaning comments to Ms. Sangster regarding shorts. Regarding this incident, Ms. Sangster asked Mr. Myers if it was possible for the deli department employees to wear shorts at the outdoor Albertson’s store promotions. Mr. Myers told Ms. Sangster that this was okay if she bought or wore a size too small for her.

[C] Ms. Sangster was present at a managers’ meeting concerning Vicki Fuson as employee of the month. At the meeting, Mr. Myers nominated Ms. Fuson as the employee of the month since she looked great in a bathing suit and made a gesture regarding Ms. Fuson’s breasts.

[D] There were numerous statements and comments by Mr. Myers to Ms. Sangster in which he stated to Ms. Sangster, “What’s the matter — didn’t you get any last night?” This particular comment was not limited to one incident but was repeatedly made by Mr. Myers to Ms. Sangster in the presence of co-workers and at the Thursday managers’ meeting in front of other department managers.

[E] On one occasion, a friend dropped a dress off at the store for Ms. Sangster. Mr. Myers, in the presence of other employees, asked Ms. Sangster to try the dress on in front of them.

[F] Mr. Myers made the statement to Ms. Sangster in the service deli department while looking at a display, “Damn that makes my titt[-] hard.”

[G] At one of the managers’ meetings, Mr. Myers made the comment regarding hot mustard, “Try it, it will make your pecke[-] stand out.”

[H] Mr. Myers made a comment regarding Ms. Sangster’s flying lessons. He remarked that she should join his mile high club. When she asked what that was, Mr. Myers turned and walked away laughing. Ms. Sangster felt that this comment was of a sexual nature and carried sexual overtones.

[I] Mr. Myers made comments about the problem with dating younger men. He stated that Ms. Sangster should go out with older men like himself. In this same conversation, Mr. Myers commented to Ms. Sangster that she should travel with him.

[J] Mr. Myers made other vulgar and demeaning sexual comments to Ms. Sangster at the weekly managers’ meetings.

[K] Mr. Myers stated that he noticed Ms. Sangster’s performance as service deli manager began to slip the four to six months Before she left the Clarkston store in July 1995.

[8] Albertson’s and Mr. Myers filed a motion for summary judgment.

[9] The court found that these actions did not rise to the level of sexual harassment and, accordingly, granted Albertson’s and Mr. Myers’ motion for summary judgment.

[10] Ms. Sangster filed a motion for reconsideration pursuant to CR 59 and submitted a new affidavit containing additional information.

[11] The court denied the motion for reconsideration, stating “[t]he new affidavit is an attempt to bring in new evidence[.]”

[12] The court further ruled that “the requirements of CR 59 have not been satisfied.” Ms. Sangster appeals.

Sangster v. Albertson’s Inc., 99 Wn.App. 156, 991 P.2d 674 (Div. 3 2000) (hyperlinks added).

ISSUE #1: Did the trial court err in granting Albertson’s and Mr. Meyers’ motion for summary judgment dismissing plaintiff Sangster’s sexual harassment claim?

[1-1] SEXUAL HARASSMENT GENERALLY: “Washington’s law against discrimination [(WLAD)], RCW 49.60, protects employees from sexual harassment.” Sangster v. Albertson’s Inc., 99 Wn.App. 156, 161, 991 P.2d 674 (Div. 3 2000) (citing Coville v. Cobarc Servs., Inc., 73 Wash.App. 433, 438, 869 P.2d 1103 (1994) (citing Glasgow v. Georgia-Pacific Corp., 103 Wash.2d 401, 405, 693 P.2d 708 (1985))) (hyperlink added).

[1-2] THE WLAD SEXUAL HARASSMENT PROVISION (RCW 49.60.180(3)): “The statute provides in relevant part, ‘[i]t is an unfair practice for any employer … [t]o 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. (citing RCW 49.60.180(3)) (alteration in original).

[1-3] TWO TYPES OF SEXUAL HARASSMENT (QUID PRO QUO & HOSTILE WORK ENVIRONMENT): “Sexual harassment claims are characterized as either ‘quid pro quo harassment’ or ‘hostile work environment’ claims.” Id. (citing DeWater v. State, 130 Wash.2d 128, 134, 921 P.2d 1059 (1996) (quoting Payne v. Children’s Home Soc’y of Wash., Inc., 77 Wash.App. 507, 511 n. 2, 892 P.2d 1102 (1995))) (internal quotation marks omitted).

[1-4] HOSTILE WORK ENVIRONMENT BASED ON SEX (THE PRIMA FACIE CASE): “To establish a prima facie case for a hostile work environment claim, the employee must demonstrate that there was[:]

(1) offensive, unwelcome contact that

(2) occurred because of sex or gender,

(3) affected the terms or conditions of employment, and

(4) can be imputed to the employer.

Id. (citing Doe v. Department of Transp., 85 Wash.App. 143, 148, 931 P.2d 196 (1997) (citing Glasgow, 103 Wash.2d at 406-07, 693 P.2d 708); Coville, 73 Wash.App. at 438, 869 P.2d 1103)) (paragraph formatting added).

[1-5] HOSTILE WORK ENVIRONMENT — 2ND ELEMENT (OCCURRED BECAUSE OF SEX/GENDER): In the instant case, “[the plaintiff] must prove that she would not have been singled out and caused to suffer the harassment had she been male.” Id. (citing Doe, 85 Wash.App. at 148, 931 P.2d 196). Accordingly, “[t]o defeat a summary judgment motion, [the plaintiff] must produce competent evidence that supports a reasonable inference that [the plaintiff’s] gender was the motivating factor for . . . [the] harassing conduct.” Id. (internal citation omitted).

[1-6] HOSTILE WORK ENVIRONMENT — 3RD ELEMENT (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 162.

PERVASIVENESS: “The harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id. at 162-63 (citing Glasgow, 103 Wash.2d at 406, 693 P.2d 708).

TOTALITY OF THE CIRCUMSTANCES: “Whether the harassment is such that it creates an abusive working environment may be determined by examining the totality of the circumstances.” Id. at 163 (citing Payne, 77 Wash.App. at 515, 892 P.2d 1102 (citing Glasgow, 103 Wash.2d at 406-07, 693 P.2d 708)).

CONSIDERATIONS: “[The court] . . . consider[s] the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.'” Id. (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)).

CASUAL, ISOLATED, OR TRIVIAL INCIDENTS NOT ENOUGH: “‘Casual, isolated or trivial’ incidents are not actionable.” Id. (citing Glasgow, 103 Wash.2d at 406, 693 P.2d 708; see also Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 2283, 141 L.Ed.2d 662 (1998) (“isolated incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and conditions of employment’ “)).

[1-7] HOSTILE WORK ENVIRONMENT — 4TH ELEMENT (CAN BE IMPUTED TO EMPLOYER): “[A] coemployee’s sexual harassment can be imputed to an employer if that coemployee is a manager who personally participates in the harassment.” Id. (citing Glasgow, 103 Wash.2d at 407, 693 P.2d 708). “The Glasgow formulation of the elements of sexual harassment is taken from federal cases interpreting Title VII.” Id. at 164 (citing Glasgow, 103 Wash.2d at 406-07, 693 P.2d 708) (hyperlink added).

[1-8] HOSTILE WORK ENVIRONMENT — 4TH ELEMENT (QUALIFIED IMPUTATION BASED UPON SUPERVISOR MISCONDUCT): THE FARAGHER-ELLERTH TEST: “Since Glasgow was decided, several federal cases have held that there should not be automatic imputation where the harasser is a supervisor at the employment site but does not occupy an upper level management position.” Sangster, 99 Wn.App. at 164 (citing Perry v. Harris Chernin, Inc., 126 F.3d 1010 (7th Cir.1997); Torres v. Pisano, 116 F.3d 625 (2nd Cir.1997); Andrade v. Mayfair Mgt., Inc., 88 F.3d 258 (4th Cir.1996)).

“In response to those cases, the United States Supreme Court clarified federal law in Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 2270, 141 L.Ed.2d 633 (1998) and Faragher [v. City of Boca Raton, 524 U.S. 775,] 118 S.Ct. … [2275,] 2292-93[, 2283, 141 L.Ed.2d 662 (1998).]” Sangster, 99 Wn.App. at 164 (emphasis added). Accordingly, “[t]he court established [the] [Faragher-Ellerth] test for determining whether an employer is vicariously liable for a hostile work environment created by a supervisor.” Id. (emphasis added).

THE FARAGHER-ELLERTH TEST: The Faragher-Ellerth test “stated: ‘An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee.'” Id. (citing Burlington, 118 S.Ct. at 2261).

THE AFFIRMATIVE DEFENSE: “To prevent this rule from imposing automatic liability and to encourage employers to adopt anti-harassment policies, the court provided employers with an affirmative defense that they could assert to avoid vicarious liability for their supervisor’s misconduct:”

When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see F. Rule Civ. Proc. 8(c).”

Sangster, 99 Wn.App. at 164-65 (emphasis added).

[1-9] FARAGHER-ELLERTH AFFIRMATIVE DEFENSE (THE EMPLOYERS’ AFFIRMATIVE DEFENSE TO SUPERVISOR-BASED VICARIOUS LIABILITY): “The [Faragher-Ellerth affirmative] defense comprises two necessary elements:

(a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and

(b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.”

Id. at 165 (paragraph formatting added).

CAVEAT: This test is only applicable when no tangible employment action is taken by the employer against the employee.

[1-10] SUMMARY: SUPERVISOR-BASED VICARIOUS LIABILITY: “[I]f the harassment is actionable and the harasser has supervisory authority over the victim, the presumption is that the employer is vicariously liable for the harassment.” Id. “This presumption may be overcome only if the alleged harassment has not resulted in a tangible employment action, and then only if the employer can prove both elements of the affirmative defense.” Id.

[1-11] HOSTILE WORK ENVIRONMENT — 1ST ELEMENT (OFFENSIVE & UNWELCOME CONDUCT): In this case, the Court found that “[t]he parties agree[d] that the conduct was offensive and unwelcome.” Id. at 161. Thus, the Plaintiff “fulfill[ed] the first element of [her] prima facie case.” Id.

[1-12] HOSTILE WORK ENVIRONMENT — 2ND ELEMENT (OCCURRED BECAUSE OF SEX/GENDER): Next, the Court initially determined that “[s]everal of the incidents Ms. Sangster lists as sexually harassing do not fulfill this element because they were comments made to a group of both males and females and were not motivated by Ms. Sangster’s sex.” Id. at 162. The Court reasoned:

General comments Mr. Myers made at the managers’ meetings like, ‘[t]ry it, it will make your peck[-] stand out,’ or commenting on how a female employee should be employee of the month because she looked good in a swimming suit were not directed at Ms. Sangster and were not motivated by her gender. Also, the comment, ‘[d]amn that makes my titt[-] hard,’ was heard by several other people and was not specifically directed at Ms. Sangster.

Id. (alterations in original).

However, the Court subsequently found that “[t]he remaining incidents appear to have been motivated by Ms. Sangster’s gender[:]

[A] Mr. Myers suggesting that Ms. Sangster order her shorts one size smaller, or try on a dress in front of him, implies that he wanted to look at her in tight shorts or undressed.

[B] Mr. Myers asking Ms. Sangster, “[w]hat’s the matter – didn’t you get any last night?” or remarking that she should join his mile high club, could have been made to either male or female, but were inappropriate comments about her sex life.

[C] Also, Mr. Myers’ comments that Ms. Sangster should go for older men like himself and she could travel with him implied that he wanted to have a relationship with her.

[D] Mr. Myers’ use of the terms, “honey,” “sweety,” and “little girl” in addressing Ms. Sangster and other female employees was definitely based on gender.

The sexual nature of these incidents supports a reasonable inference that the conduct occurred because she was female.

Id.

[1-13] HOSTILE WORK ENVIRONMENT 3RD ELEMENT (AFFECTED THE TERMS OR CONDITIONS OF EMPLOYMENT): The Court first considered the employer’s arguments:

Albertson’s argues that the alleged sexual harassment was only part of Ms. Sangster’s discontent with her job. Further, Albertson’s minimized the sexual harassment, characterizing it as casual or trivial. Albertson’s maintains that it is not clear that the harassment, without Ms. Sangster’s other problems at the store, was sufficiently pervasive so as to alter the conditions of her employment and create an abusive working environment.

Id. at 163, 991 P.2d 674. However, it dismissed these arguments finding in favor of the Plaintiff concerning the third element:

[T]he evidence is sufficient to create an issue of fact because reasonable persons could reach different conclusions as to whether the harassment altered the conditions of employment. Ms. Sangster has established the third element of her prima facie case.

Id.

[1-14] HOSTILE WORK ENVIRONMENT 4TH ELEMENT (CAN BE IMPUTED TO EMPLOYER): This was the main issue on appeal. The Court initially considered the following facts regarding the fourth element:

[a] “Ms. Sangster’s complaints about sexual harassment cover a period of time exceeding two and one-half years.”

[b] “During that time, Albertson’s had in effect a policy prohibiting sexual harassment. This policy was stated in its employee handbook which Ms. Sangster was required periodically to read. It stated:

Employees who have been led to believe that promotions, increases in wages, continued employment or any terms of employment are conditioned on sexual favors, or who feel that they have been subject to any type of sexually offensive work environment or incidents of retaliation, must immediately contact the hotline number 1-800-841-6371. You need not identify yourself to report improper activities via the hotline.

[c] “This policy was effectuated by the hotline number, periodic distribution of notices to each store employee, and special training sessions for store directors.”

[d] “Ms. Sangster received a notice from Albertson’s informing her that all employees must ‘comply with our policy prohibiting sexual harassment.’ “

[e] “The notice further instructed employees that if they were aware of supervisors or employees who have violated the policy, they “should immediately report such information to our General Office in Boise via our toll-free Hotline number.”

[f] “Ms. Sangster never used the hotline to report the sexual harassment.”

[g] “She did not contact Albertson’s about the sexual harassment until after she announced she was stepping down as the service deli manager at Clarkston.”

[h] “After she contacted Albertson’s, she was interviewed by a member of its senior management. Thereafter, Albertson’s investigated Ms. Sangster’s claims.”

[i] “Although the investigation failed to substantiate her claims, Albertson’s counseled Mr. Myers that no sexual harassment could be tolerated.”

[j] “There is no evidence that Ms. Sangster was subject to any sexual harassment or retaliation after she made her complaint.”

Id. at 165-66.

The Court then found as follows:

In this case, there is evidence that the employer adopted a policy prohibiting sexual harassment. There is also evidence that the employee did not timely report the harassment to her employer as required by its policy. There is a factual basis for the argument that had she done so, the damages to her and the liability to her employer may have been eliminated or limited by its response to her complaints. Nevertheless, under a rule that imputes automatic liability to an employer for the conduct of a manager, Albertson’s would be automatically liable for Mr. Myers’ conduct.

Id. at 166.

[1-15] GLASGOW IS NOT CONTROLLING: The Court then considered whether the Glasgow case was controlling and noted the following:

♦ Glasgow “does not discuss the effect of failure to use an anti-sexual harassment complaint procedure.”

♦ “There is no evidence that the Glasgow employer had such a procedure.”

♦ “[I]n describing the four elements of sexual harassment, the court stated what ‘an employee must prove.”

♦ “It did not attempt to articulate defenses which may have been available to the employer.”

Sangster, 99 Wn.App. at 166-67 (internal citations omitted). Accordingly, the Court concluded that Glasgow was not controlling in the instant case.

Conclusion of the issue — **-CONCLUSION-**

[1-16] EVIDENCE SUFFICIENT TO SUSTAIN SEXUAL HARASSMENT CLAIM UNDER RCW 49.60.180 (REVERSED & REMANDED): The Court held as follows:

Viewed in the light most favorable to Ms. Sangster, as the nonmoving party, the evidence was sufficient to sustain a claim of sexual harassment under RCW 49.60.180.

Albertson’s and Mr. Myers should not have been granted summary judgment. There is a genuine issue of material fact as to whether Mr. Myers sexually harassed Ms. Sangster and whether such conduct created a hostile work environment.

If these issues should be resolved against Albertson’s, it would be liable for Mr. Myers’ conduct, unless it prevails on the affirmative defense described in Burlington and Faragher.

Sangster, 99 Wn.App. at 167 (hyperlink and paragraph formatting added). As a result, the Court reversed the trial court decision and remanded for trial.

NOTABLES & IMPLICATIONS:

POLICY BEHIND THE FARAGHER-ELLERTH DEFENSE

(1) POLICY: “In adopting an affirmative defense limiting employer liability, the Burlington court stated it was consistent with ‘Title VII’s purpose to the extent it would encourage the creation and use of anti-harassment policies and grievance procedures.’ ” Sangster, 99 Wn.App. at 166 (citing Burlington, 118 S.Ct. at 2261).

SUMMARY JUDGMENT & WLAD

(2) DEFEATING SUMMARY JUDGMENT: “To defeat summary judgment, the employee must establish specific and material facts to support each element of her prima facie case.” Id. at 160 (citing Marquis, 130 Wash.2d at 105, 922 P.2d 43; Kahn v. Salerno, 90 Wash.App. 110, 117, 951 P.2d 321, review denied, 136 Wash.2d 1016, 966 P.2d 1277 (1998)).

(3) INQUIRY SCOPE: “When reviewing an order of summary judgment, we engage in the same inquiry as the trial court.” Id. at 160 (citing Honey v. Davis, 131 Wash.2d 212, 217, 930 P.2d 908, 937 P.2d 1052 (1997)).

(4) MATERIAL FACT: “A material fact is one upon which the outcome of the litigation depends.” Id. at 160 (citing Greater Harbor 2000 v. City of Seattle, 132 Wash.2d 267, 279, 937 P.2d 1082 (1997)).

(5) STANDARD: “Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Id. at 160 (citing CR 56(c); Hash v. Children’s Orthopedic Hosp. & Med. Ctr., 110 Wash.2d 912, 915, 757 P.2d 507 (1988)).

(6) STATEMENTS (OPINIONS & CONCLUSORY DECLARATIONS): “[I]n order for a plaintiff alleging discrimination in the workplace to overcome a motion for summary judgment, the worker must do more than express an opinion or make conclusory statements.” Id. at 160 (citing Marquis v. City of Spokane, 130 Wash.2d 97, 105, 922 P.2d 43 (1996)) (internal quotation marks omitted).

(7) THE SUMMARY JUDGMENT ADMONITION: “Summary judgment should rarely be granted in employment discrimination cases.” Id. at 160 (citing Johnson v. Department of Soc. & Health Servs., 80 Wash.App. 212, 226, 907 P.2d 1223 (1996)).

LEARN MORE

July 11, 2021May 26, 2022

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

This is a case summary of Alonso v. Qwest Communications Company, LLC, 178 Wn.App. 734 (Div. 2 2013). Subjects include, but are not limited to, the following:

» DIRECT EVIDENCE TEST

» DISPARATE TREATMENT

» HOSTILE WORK ENVIRONMENT

» UNLAWFUL RETALIATION

Advertisement

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

case summarY – 5 Facts:

[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?

[1-1] 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.” Alonso v. Qwest Communications Company, LLC, 178 Wn.App. 734, 743 (Div. 2 2013) (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 discrimination case, a plaintiff must show that his employer simply 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)).

[1-2] PRIMA FACIE TEST (2 OPTIONS): “A plaintiff can establish a prima facie case by either[:]

[1.] offering direct evidence of an employer’s discriminatory intent, or …

[2.] satisfying the McDonnell Douglas burden-shifting test that gives rise to an inference of discrimination.

Id. at 743-44 (citing Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 491, 859 P.2d 26, 865 P.2d 507 (1993)) (emphasis and paragraph formatting added).

[1-3] DIRECT EVIDENCE TEST (2 REQUIREMENTS): “[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. at 744 (citing Kastanis, 122 Wn.2d at 491) (paragraph formatting added).

[1-4] EMPLOYER’S DISCRIMINATORY REMARKS GENERALLY CONSIDERED DIRECT EVIDENCE OF DISCRIMINATION: “We generally consider 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) (“reversing summary judgment based on supervisor’s ageist comments that plaintiff did not fit company’s image of a youthful, fit, ‘GQ’ looking mold” )).

[1-5] SIGNIFICANT OR SUBSTANTIAL FACTOR IN AN EMPLOYMENT DECISION: ADVERSE EMPLOYMENT ACTION: The plaintiff-employee “must next [establish that] … the discriminatory motive was a significant or substantial factor in an employment decision relating to … [plaintiff].” Id. at 746 (referencing Kastanis, 122 Wn.2d at 491).

Adverse Employment Action: “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. (citing Campbell v. State, 129 Wn.App. 10, 22, 118 P.3d 888 (2005), review denied, 157 Wn.2d 1002 (2006)).

Demotion, Adverse Transfer, and Hostile Work Environment: “A demotion or adverse transfer, or a hostile work environment, may also amount to an adverse employment action.” Id. (citing Kirby v. City of Tacoma, 124 Wn.App. 454, 465, 98 P.3d 827 (2004), review denied, 154 Wn.2d 1007 (2005)).

[1-6] ALONSO’S DIRECT EVIDENCE TEST: “To satisfy the direct evidence test, Alonso must show that Qwest acted with discriminatory motive in taking an adverse employment action against him based on his protected status as either a veteran, Mexican-American, or disabled person.” Id. at 744 (internal citations omitted).

[1-7] EVIDENCE OF DISCRIMINATORY MOTIVE (VETERAN STATUS):

In this case:

(a) Alonso recounted that Martinez “stated hatred of disabled combat veterans: ‘I will tell you what I hate[:] people that served in the first Gulf War for five days and claim a disability.’ “

(b) “the record demonstrates that Alonso was the only disabled Gulf War combat veteran at Qwest and that he claimed a 40 percent combat disability stemming from his service.”

(c) “Martinez knew of Alonso’s combat veteran status and, according to Alonso, even ‘stated that he hated the fact that I was receiving disability pay.’ “

Id. at 745 (alteration in original) (internal citations and quotation marks omitted). Accordingly, the Court found that “Martinez openly stated that he hated disabled Gulf War combat veterans and specifically that he hated that Alonso was disabled and receiving disability pay.” Id.

[1-8] EVIDENCE OF DISCRIMINATORY MOTIVE (NATIONAL ORIGIN & SPEECH IMPEDIMENT):

In this case:

(a) “… Alonso produced evidence that Martinez referred to Mexicans as ‘Spics’ and allowed others to use the term[ ]”;

(b) “[e]mployees including Martinez openly mocked Alonso’s speech impediment and accent;”

(d) “contrasted themselves to Alonso because they ‘spoke correct English,’ unlike him.”

Id. (internal citations omitted). “This open mocking based on Alonso’s national origin and speech impediment constitutes further direct evidence of discriminative intent, specifically relating to Alonso’s protected disability and national origin statuses.” Id.

[1-9] SIGNIFICANT OR SUBSTANTIAL FACTOR IN EMPLOYMENT DECISION (EVIDENCE OF ADVERSE EMPLOYMENT ACTION): In this case, Alonso claimed that he suffered adverse action through both adverse transfer and hostile work environment.

Adverse Transfer: 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. Id. at 746.

Due to conflicting evidence, 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.” Id. at 747

Hostile Work Environment: Alonso also 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.

The Court considered derogatory comments made by Martinez and other employees, as described above, and it also considered the following additional comments 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 (internal citations omitted).

“Viewed in a light most favorable to Alonso, the evidence showed … [:]

[a] Martinez and other employees openly bullied and condoned the bullying of Alonso because of his accent stemming from his Mexican-American heritage and speech impediment disability, as well as his disabled veteran status[ ] [;]

[b] [t]he bullying was so pervasive that other employees noticed and sympathized with Alonso;

[c] one co-worker opined that Alonso’s treatment was so bad that ‘[i]t was evident in the way that Ben Martinez treated Joseph Alonso that he did not like him and that he was trying to make Joseph’s working conditions so poor that Joseph would quit.’

Id. (internal citations omitted) (one alteration in original). “Because of the severity of this unbridled bullying and harassment, this hostile work environment amounted to an adverse employment action.” Id.

[1-10] ALONSO ESTABLISHED A PRIMA FACIE DISPARATE TREATMENT CASE UNDER DIRECT EVIDENCE TEST: The Court held that “Alonso sufficiently established a prima facie disparate treatment case under the direct evidence test.” Id.

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

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

[2-1] 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)) (paragraph formatting added).

Actionable Harassment: “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)).

[2-2] 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).

[2-3] 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).

[2-4] 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)).

[2-5] UNWELCOME (1ST ELEMENT): The Court found that it was undisputed between the parties that Alonso did not welcome any hostility or harassment. Id. at 749.

[2-6] HARASSMENT BECAUSE OF PROTECTED CLASS (2ND ELEMENT): 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)). See id. at 749-50.

Accordingly, the court determined that Alonso satisfied this element in establishing a prima facie hostile work environment claim. See id. at 750-51.

[2-7] HARASSMENT AFFECTED TERMS & CONDITIONS (3RD ELEMENT): 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 held that Alonso “sufficiently demonstrated that the alleged harassment affected the terms and conditions of his employment.” Id.

[2-8] HARASSMENT IMPUTABLE TO EMPLOYER (4TH ELEMENT): 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. See id. at 752-53.

Thus, 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. See id. The Court also found that Martinez participated in some of the harassment as described above. Id. at 753.

Alonso established the harassment is imputable to the employer through supervisor Martinez. Id.

[2-9] ALONSO ESTABLISHED A PRIMA FACIE HOSTILE WORK ENVIRONMENT CLAIM (REVERSED): 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. Id.

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

[3-1] 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).

PRIMA FACIE CASE. “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)) (paragraph formatting added).

[3-2] 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).

[3-3] COMPLAINTS MUST REFERENCE PLAINTIFF’S PROTECTED STATUS: “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)).

[3-4] PROTECTED ACTIVITY (1ST ELEMENT): 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.

[3-5] ALONSO FAILED TO ESTABLISH A PRIMA FACIE RETALIATION CASE (TRIAL COURT AFFIRMED): 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. See id. at 754. Therefore, the Court affirmed the trial court’s dismissal of his unlawful retaliation claim. Id. at 754-55.

NOTABLES & IMPLICATIONS:

EMPLOYEE’S ALLEGED HUMILIATION & SELF-DIAGNOSED MENTAL SICKENESS RAISED INFERENCE THAT CONDITION RESULTED FROM HOSTILE WORK ENVIRONMENT

(1) “Whether offensive comments affect the conditions of employment is a factual question.” Id. at 751 (referencing Davis v. W. One Auto. Grp., 140 Wn.App. 449, 457, 166 P.3d 807 (2007) (“holding that employee’s alleged humiliation and self-diagnosed mental sickness from ‘racially charged’ workplace comments raised inference that condition resulted from hostile work environment”), review denied, 163 Wn.2d 1040 (2008)) (emphasis added).

HOSTILE WORK ENVIRONMENT (IMPUTABLE TO EMPLOYER) — ASSIGNING OVERTIME

(3) 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)).

HOSTILE WORK ENVIRONMENT: TWO COMMENTS MAY BE ENOUGH TO SUPPORT REASONABLE INFERENCE THAT PROTECTED CLASS STATUS WAS MOTIVATING FACTOR

(4) 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).

INDIRECT DEROGATORY RACIALLY CHARGED LANGUAGE MAY BE ACTIONABLE

(5) “[A] defendant need not levy derogatory racially charged language directly at the plaintiff to subject the plaintiff to a hostile work environment and survive summary judgment.” See Davis v. W. One Auto. Grp., 140 Wn.App. 449, 457, 166 P.3d 807 (2007) (defendant’s derogatory statements about Dr. Martin Luther King Jr. and calling African American plaintiff a ” bitch” could be considered racially motivated and subjected plaintiff to hostile work environment), review denied, 163 Wn.2d 1040 (2008)) (emphasis added).

THE O’NEAL RULE

(6) “In O’Neal v. City of Chicago, 392 F.3d 909, 912 (7th Cir. 2004), the Seventh Circuit held that the loss of a plaintiff’s cellular telephone, pager, vehicle, and parking space did not amount to an adverse employment action when those benefits were associated with the position from which the plaintiff was transferred.” Id. at 746. The Court in this case raised and dismissed the O’Neal Rule due to conflicting evidence.

TITLE VII FOR GUIDANCE

(7) “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)).

LEARN MORE

July 9, 2021May 26, 2022

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

This is a case summary of Loeffelholz v. University of Washington, 175 Wn.2d 264 (Wash. 2012). Subjects include, but are not limited to the following:

» HOSTILE WORK ENVIRONMENT

» TERMS AND CONDITIONS OF EMPLOYMENT

» ADMISSIBLE EVIDENCE OUTSIDE STATUTE OF LIMITATIONS

Advertisement

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

case summarY – 7 PRIMARY Facts:

[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) (hyperlink added).

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

[1-1] 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 (Wash. 2012) (internal citations and quotation marks omitted).

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).

[1-2] 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).

[1-3] LEGISLATIVE HISTORY: The Court found that the final bill report to the WLAD amendment supported prospective application. It stated that “the amendment expanded the WLAD to prohibit discrimination based on a person’s sexual orientation.” Id. (internal citations omitted). The “language implies that before the amendment, WLAD did not protect against discrimination based on sexual orientation.” Id.

[1-4] 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 (hereinafter “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. Loeffelholz, 175 Wn.2d 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.

[1-5] 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 in Graves v. District of Columbia, 843 F.Supp.2d 106 (D.D.C.2012), “recognize[d] that conduct that is non-actionable for purposes of liability may sometimes be used for a particular purpose in support of actionable claims.” Id. at 274 (internal citations omitted) (alteration in original.

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).

[1-6] TOTALITY-OF-THE-CIRCUMSTANCES ANALYSIS: 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.

[1-7] LEGISLATURE’S MANDATE THAT WLAD PROVISIONS BE CONSTRUED LIBERALLY: The Court further concluded that their finding was “supported by the legislature’s mandate that WLAD provisions be construed 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).

[1-8] WLAD AMENDMENT APPLIES PROSPECTIVELY ONLY BUT HOSTILE WORK ENVIRONMENT CLAIM MAKES PREAMENDMENT CONDUCT ADMISSIBLE: 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?

[2-1] 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 [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) (alteration in original).

[2-2] 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) (emphasis added).

[2-3] 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 standard for linking discriminatory acts together in the hostile work environment context is not high.” Id. “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, 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.

[2-4] 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.

[2-5] A SINGLE COMMENT MADE POSTAMENDMENT CAN ESTABLISH A HOSTILE WORK ENVIRONMENT: 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[ ]; [t]he acts must have some relationship to each other to constitute part of the same hostile work environment claim.” Id. at 276 (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 hostile work environment cases might be analogized to preamendment conduct in this case.

LEARN MORE

July 7, 2021November 26, 2022

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

This is a case summary of Robel v. Roundup Corporation, 148 Wn.2d 35 (Wash 2002). Subjects include, but are not limited to the following:

» DISABILITY-BASED HOSTILE WORK ENVIRONMENT

» WORKERS’ COMPENSATION ANTI-RETALIATION STATUTE

» INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

» DEFAMATION

Advertisement

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

case summarY – 22 Facts:

[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 ‘bitc[-]’ 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, … Banka.

[10] According to Robel’s journal, Banka came in on August 14, 1996, and set up a meeting with … 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 Bitc[-][,] 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 (Wash 2002) (internal citations omitted) (hyperlink added).

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

[1-1] 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.” Robel v. Roundup Corporation, 148 Wn.2d 35 (Wash 2002) (citing RCW 49.60.180(3)) (alteration to the original).

[1-2] 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)).

[1-3] ISSUE OF FIRST IMPRESSION: 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 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 (hyperlinks added).

[1-4] WLAD SUPPORTS DISABILITY-BASED HOSITLE WORK ENVIRONMENT CLAIMS: 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 support its conclusion of law that Fred Meyer discriminated against Robel based upon her physical disability?

[2-1] 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.

[2-2] 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)).

[2-3] 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.

[2-4] 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) (hyperlink added).

[2-5] 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).

[2-6] 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 35. Therefore, the Court did not further define disabled within the meaning of the antidiscrimination statute. Id.

[2-7] 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.

[2-8] 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 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.

[2-9] 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 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.

[2-10] THE FIFTH ELEMENT (IMPUTABLE TO EMPLOYER): The Court identified relevant trial court findings as follows:

[a] “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[;]”

[b] “Fred Meyer’s management personnel improperly participated in and/or allowed the verbal and non-verbal harassment in the work setting[;]”

[c] “deli manager Potts and assistant deli manager Smith were management personnel for purposes of employer liability[;]”

[d] “Fred Meyer’s remedial action … was not of such nature to have been reasonably calculated to end the harassment[;]”

[e] “[Fred Meyer’s] investigations and termination of [one co-worker] without further management corrections were inadequate[;]” and

[f] “the postinjury harassment was ‘imputed to Fred Meyer.'”

Id. at 48 (internal citations and quotation marks omitted) (lettered paragraphs added).

The Court found that these uncontested findings of fact satisfy both options derived from Glasgow. Id.

[2-11] COURT OF APPEALS REVERSED / TRIAL COURT JUDGMENT REINSTATED: 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?

[3-1] 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).

[3-2] FRAMING THE ISSUE: 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.

[3-3] ELEMENTS OF THE CLAIM: 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 [1] that she had filed a claim, [2] that Fred Meyer thereafter discriminated against her in some way, and [3] that the claim and the discrimination were causally connected.” Id. at 50.

[3-4] FINDINGS OF FACT SATISFY THE ELEMENTS: 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?

[4-1] IIED ELEMENTS: To succeed on a claim for outrage–also known as intentional infliction of emotional distress (IIED)–“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).

[4-2] 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.

[4-3] 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).

[4-4] 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.” Robel, 148 Wn.2d at 52 (citing Contreras, 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”)).

[4-5] 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)).

[4-6] 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)).

[4-7] 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).

[4-8] 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.

[4-9] REASONABLE MINDS COULD CONCLUDE EXTREME AND OUTRAGEOUS CONDUCT: 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.

[4-10] FRED MEYER VICARIOUSLY LIABLE: 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.

[4-11] COURT OF APPEALS REVERSED / REINSTATED TRIAL COURT’S JUDGMENT FOR ROBEL ON IIED: 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?

[5-1] 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).

[5-2] 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).

[5-3] 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.

[5-4] 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)).

[5-5] 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.

[5-6] 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).

[5-7] ALL OF THE UTTERANCES WERE NONACTIONABLE OPINIONS: 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 (IIED)

(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, 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.

LEARN MORE

July 1, 2021May 26, 2022

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

This is a case summary of Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401 (Wash. 1985). Primary subjects include the following:

» SEXUAL HARASSMENT (HOSTILE WORK ENVIRONMENT)

» IMPUTING HARASSMENT TO EMPLOYER

» CONSTRUCTIVE DISCHARGE

Advertisement

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

CASE SUMMARY – 16 Facts:

[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) (internal citations omitted) (hyperlink added).

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

[1-1] 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.” Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401, 408 (Wash. 1985) (hyperlink added).

[1-2] 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 (footnote omitted).

[1-2a] 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.

[1-2b] 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? This statutory criterion requires that the gender of the plaintiff-employee be the motivating factor for the unlawful discrimination.” Id.

[1-2c] 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. “The harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id.

TOTALITY OF THE CIRCUMSTANCES TEST: “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 circumstances.” Id. at 406-07

[1-2d] THE HARASSMENT IS IMPUTED TO THE EMPLOYER:

WHERE OWNER, MANAGER, PARTNER, OR CORPORATE OFFICER HARASSES: “Where an owner, manager, partner or corporate officer personally participates in the harassment, this element is met by such proof.” Id. at 407.

WHERE SUPERVISORS OR CO-WORKERS HARASS: “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. (emphasis and paragraph formatting added).

SHOWN THROUGH COMPLAINTS/PERVASIVENESS AND INSUFFICIENT REMEDIAL ACTION: “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. (paragraph formatting and emphasis added).

[1-3] ONLY FOURTH ELEMENT (HARSSMENT IMPUTED TO EMPLOYER) WAS AT ISSUE: 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.”

[1-4] PLAINTIFFS SUBJECTED TO HOSTILE WORK ENVIRONMENT: 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?

[2-1] UNLAWFUL DISCHARGE ALONE IS INSUFFICIENT TO SHOW CONSTRUCTIVE DISCHARGE: The “existence of unlawful discharge alone is insufficient to support a finding of constructive discharge from employment.” Id. at 408 (internal citations omitted).

[2-2] INSUFFICIENT EVIDENCE: 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.” Id.

[2-3] APPELLATE COURT AGREED WITH TRIAL COURT: 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)).

LEARN MORE

June 29, 2021May 26, 2022

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

This is a case summary of Blackburn v. Department of Social and Health Services, 186 Wn.2d 250 (Wash. 2016). Subjects include the following:

» SUBSTANTIAL EVIDENCE STANDARD

» DISPARATE TREATMENT

» HOSTILE WORK ENVIRONMENT

Advertisement

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

CASE SUMMARY – 5 Facts:

[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) (internal citations omitted) (hyperlink added).

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?

[1-1] STATUTORY CONSTRUCTION (PRESUMPTION OF PROSPECTIVE APPLICATION): The Court reviews findings of fact for substantial evidence. Blackburn v. Department of Social and Health Services,, 186 Wn.2d 250, 256 (Wash. 2016) (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)).

[1-2] 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).

[1-3] 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).

[1-4] 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).
.

[1-5] DURATION AND FREQUENCY OF STATE’S PRACTICES: 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.

[1-6] OTHER STAFFING DECISIONS NOT SUBSTANTIALLY SIMILAR TO RACIAL STAFFING DIRECTIVE: 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.

[1-7] PLAINTIFF’S CHALLENGES NOT SUFFICIENT TO DISTURB TRIAL COURT’S FINDINGS: 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?

[2-1] 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)).

[2-2] 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))).

[2-3] 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).

[2-4] 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)).

[2-5] 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)).

[2-6] 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.

[2-7] 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.

[2-8] TRIAL COURT ERRED IN CONCLUDING DISPARATE TREATMENT CLAIM FAILED: 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?

[3-1] 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)).

[3-2] 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 at 406-07).

[3-3] 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)))).

[3-4] STAFFING DECISION WAS NOT SEVERE OR PERVASIVE HARASSMENT: 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 severe or pervasive harassment.” Id.

[3-5] TRIAL COURT DID NOT ERR IN DISMISSING HOSTILE WORK ENVIRONMENT CLAIM: 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?

[4-1] REMEDIES: RCW 49.60.030(2) allows successful plaintiffs in WLAD actions to recover damages, injunctive relief, costs, and attorney fees.” Id.

[4-2] PLAINTIFFS ENTITLED TO RELIEF: 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).

[4-3] REMAND: 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 (hyperlink added).

(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 construed liberally’ to accomplish its antidiscrimination purposes.” Id. (citing RCW 49.60.020).

(6) “RCW 49.60.180 prohibits racial discrimination in employment.” Id. (hyperlink added).