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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

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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.

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

[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)).

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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

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**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.