Sex or Gender Archives - Washington Employment Law Digest

April 27, 2022May 26, 2022

Dailey v. North Coast Life Insurance Company, 129 Wn.2d 572 (Wash. 1996)

This is a case summary of Dailey v. North Coast Life Insurance Company, 129 Wn.2d 572 (Wash. 1996). Subjects include, but are not limited to the following:

» WASHINGTON LAW AGAINST DISCRIMINATION (“LAD” or “WLAD”)

» PUNITIVE (EXEMPLARY) DAMAGES

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**Dailey v. North Coast Life Insurance Company, 129 Wn.2d 572 (Wash. 1996)**

case summary – 7 Facts:

[1] On March 16, 1990, Defendant North Coast Life Insurance Co. terminated Plaintiff Julie Dailey’s employment.

[2] Dailey and co-Plaintiff Gregory Dailey filed a wrongful termination claim that included an allegation of sex discrimination in violation of the LAD and specifically sought punitive damages.

[3] Both parties moved for partial summary judgment on the availability of punitive damages under the LAD.

[4] The trial court granted Plaintiffs’ motion, concluding RCW 49.60.030(2) both permitted punitive damages in an employment discrimination action and operated retrospectively.

[5] Defendants appealed.

[6] At the request of the Court of Appeals, the Supreme Court accepted certification of the case.

[7] We now reverse.

Dailey v. North Coast Life Insurance Company, 129 Wn.2d 572 (Wash. 1996) (hyperlinks added). This case summary includes both the Majority and Concurring Opinions.

» MAJORITY OPINION: DOLLIVER, Justice; DURHAM, C.J., and SMITH, GUY and MADSEN, JJ., concur.

**ISSUE #1 (Majority Opinion):** Did the trial court err in granting Plaintiff’s motion, concluding RCW 49.60.030(2) both permitted punitive damages in an employment discrimination action and operated retrospectively?

[1-1] WA STATE SUPREME COURT HAS CONSISTENTLY DISAPPROVED PUNITIVE DAMAGES AS CONTRARY TO PUBLIC POLICY: “Since its earliest decisions, this court has consistently disapproved punitive damages as contrary to public policy.” Dailey v. North Coast Life Insurance Company, 129 Wn.2d at 574 (citing Spokane Truck & Dray Co. v. Hoefer, 2 Wash. 45, 50-56, 25 P. 1072 (1891)).

[1-2] PUNITIVE DAMAGES IMPOSE ON DEFENDANT A PENALTY RESERVED FOR CRIMINAL SANCTIONS AND AWARD PLAINTIFF WITH WINDFALL BEYOND FULL COMPENSATION: “Punitive damages not only impose on the defendant a penalty generally reserved for criminal sanctions, but also award the plaintiff with a windfall beyond full compensation.” Id. (citing Kadoranian v. Bellingham Police Dep’t, 119 Wash.2d 178, 188, 829 P.2d 1061 (1992)).

[1-3] THE WA STATE LEGISLATURE HAS ASSURED THAT PLAINTIFFS MAY BECOME WHOLE THROUGH COMPENSATORY DAMAGES: “Particularly in the case of workplace discrimination, the Legislature has assured a plaintiff may ‘become whole’ through a full panoply of compensatory damages.” Id. (citing Barr v. Interbay Citizens Bank, 96 Wash.2d 692, 699-700, 635 P.2d 441, amended by 96 Wash.2d 692, 649 P.2d 827 (1982)).

[1-4] PUNITIVE DAMAGES REQUIRE EXPRESS LEGISLATIVE AUTHORIZATION: “Governing resolution of this case is the court’s long-standing rule prohibiting punitive damages without express legislative authorization.” Id. at 575 (internal citations omitted).

[1-5] FEDERAL CIVIL RIGHTS ACT:

Civil Rights Act of 1964 — Provided Private Remedies: “The Civil Rights Act of 1964 provided private remedies for employment discrimination in Title VII, historically authorizing only equitable relief.” Id.

Civil Rights Act of 1991 — Allowed Greater Trial Costs: “By the Civil Rights Act of 1991, Congress amended the 1964 Act to allow greater trial costs, including expert fees.” Dailey v. North Coast Life Insurance Company, 129 Wn.2d at 575-76 (citing 42 U.S.C. § 2000e-5(k); see Xieng v. Peoples Nat’l Bank, 120 Wash.2d 512, 528, 844 P.2d 389 (1993)).

“Revised Statutes” Amendments (42 U.S.C. § 1981a) — Allowed Compensatory and Punitive Damages for Intentional Employment Discrimination: “The 1991 Act also amended 42 U.S.C. § 1981a, known as the Revised Statutes, to permit compensatory and punitive damages in an action for intentional employment discrimination:

provided that the complaining party cannot recover under section 1981 of [the Revised Statutes (42 U.S.C. § 1981) ], the complaining party may recover compensatory and punitive damages as allowed in subsection (b) of this section, in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent.

Dailey, 129 Wn.2d at 576 (citing 42 U.S.C. § 1981a(a)(1)) (alteration in original) (paragraph formatting and hyperlinks added).

[1-6] WASHINGTON LAW AGAINST DISCRIMINATION (WLAD):

1973 — Private Equitable and Compensatory Relief Allowed Under the WLAD: “Since 1973, the Legislature has authorized private equitable and compensatory relief under the LAD:

to enjoin further violations, to recover the actual damages sustained by him, or both, together with the cost of suit including a reasonable attorney’s fees or any other remedy authorized by this chapter or the United States Civil Rights Act of 1964….

Dailey, 129 Wn.2d at 575 (citing former RCW 49.60.030(2)).

1993 — Legislature Amended the WLAD to Acknowledge the Civil Rights Act of 1991: “In 1993, the Legislature acknowledged the Civil Rights Act of 1991 by amending RCW 49.60.030(2) to ‘any other remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended.'” Dailey, 129 Wn.2d at 575 (citing RCW 49.60.030(2)) (hyperlink and emphasis added).

[1-7] UNDER CIVIL RIGHTS ACT OF 1991 PUNITIVE DAMAGES OPERATE PROSPECTIVELY ONLY: “The United States Supreme Court has determined punitive damages under the Civil Rights Act of 1991 operate prospectively only.” Dailey, 129 Wn.2d at 578 (citing Landgraf v. USI Film Prods., 511 U.S. 244, —-, 114 S.Ct. 1483, 1496, 128 L.Ed.2d 229 (1994)).

[1-8] PROVISION OF PUNITIVE DAMAGES, A PENALTY AND A NEW RIGHT OF ACTION DO NOT QUALIFY AS REMEDIAL AMENDMENT TO PERMIT PRSUMPTION OF RETROACTIVITY: “[T]he provision of punitive damages, a penalty and a new right of action [do not] qualify as a remedial amendment to permit a presumption of retroactivity.” Id. at 578 (citing Agency Budget Corp. v. Washington Ins. Guar. Ass’n, 93 Wash.2d 416, 425-26, 610 P.2d 361 (1980); Johnston v. Beneficial Management Corp., 85 Wash.2d 637, 640-41, 538 P.2d 510 (1975); see Landgraf, 511 U.S. at —-, 114 S.Ct. at 1506-07).

[1-9] THE STATUTORY AUTHORITY IS TOO AMBIGUOUS AND ATTENUATED TO BE EXPRESS: In this case, “[t]he trial court determined the LAD, RCW 49.60.30(2), expressly authorized punitive damages by incorporating that federal remedy by reference to the United States Civil Rights Act of 1991, 42 U.S.C. § 1981a(a)(1).” Dailey, 129 Wn.2d at 575 (citing Mackay v. Acorn Custom Cabinetry, Inc., 127 Wash.2d 302, 316, 898 P.2d 284 (1995) (Madsen, J., dissenting) (“noting RCW 49.60.030(2) does not authorize punitive damages under state law”)) (emphasis and hyperlinks added).

∴ Majority Court’s Analysis: “While we do not fault the trial court’s analytic framework, we find the statutory authority too ambiguous and attenuated to suffice as express.” Id.

[1-10] AMBIGUITIES PRECLUDE EXPRESS AUTHORIZATION FOR PUNITIVE DAMAGES: “Ambiguities cloud the relation between 42 U.S.C. § 1981a(a)(1) and RCW 49.60.030(2) to preclude characterization of their link as an express authorization for punitive damages.” Dailey, 129 Wn.2d at 576 (hyperlinks added).

∴ Majority Court’s Analysis — Amendment Limited to Costs:

“First, the structure of the language in RCW 49.60.030(2) arguably evinces an intent to incorporate only federal remedies qualifying as ‘costs.’ While the trial court read the provision as: ‘to recover the actual damages … together with … any other remedy …,’ we might reasonably read the term ‘including’ as restrictive: ‘the cost of suit including … any other remedy….’ Under the latter interpretation, punitive damages simply would fall outside the scope of the incorporation provision.” Dailey, 129 Wn.2d at 576 (hyperlink added).

“We need not choose between these alternative meanings … to decide the resultant ambiguity cannot overcome Washington’s policy against punitive damages.” Id.

∴ Majority Court’s Analysis — Implied Incorporation Is Not Express Authorization:

“We find equally disturbing the relation between the provision of punitive damages in the Civil Rights Act of 1991 and the Civil Rights Act of 1964. RCW 49.60.030(2) explicitly incorporates only the 1964 Act as amended, but whether the 1991 Act actually constitutes an amendment to the 1964 Act is unclear.” Dailey, 129 Wn.2d at 576 (hyperlink added).

“The Civil Rights Act of 1991 did not directly amend Title VII to permit punitive damages, but rather amended the Revised Statutes, 42 U.S.C. § 1981a. Indeed, the amendment explicitly describes compensatory and punitive damages ‘in addition to’ remedies available under the 1964 Act.” Dailey, 129 Wn.2d at 576-77 (citing 42 U.S.C. § 1981a(a)(1)) (hyperlinks added).

“An implied incorporation of the 1991 Act does not meet our standard for express authorization.” Id. at 577.

[1-11] THE COURT REAFFIRMS AND DISTINGUISHES XIENG: “The trial court found controlling this court’s prior analysis of the interplay between RCW 49.60.030(2) and the 1991 Act in Xieng, 120 Wash.2d 512, 844 P.2d 389.” Dailey, 129 Wn.2d at 577 (hyperlink added). “Analyzing the scope of the incorporation of federal remedies by reference, Xieng held express legislative authorization for expert witness fees under the LAD lies in the explicit expert witness fee provision of the Civil Rights Act of 1991…. The trial court concluded Xieng compelled incorporation of all federal relief provided in the 1991 Act.” Dailey, 129 Wn.2d at 577 (internal citations omitted).

∴ Majority Court’s Analysis: “We reaffirm and distinguish Xieng[ ][:]

Both the nature of the remedy and the relevant statutory authority in Xieng differ from the present case. Certainly expert witness fees have not received the extreme resistance and condemnation as punitive damages. See Spokane Truck, 2 Wash. at 50-56, 25 P. 1072.

Unlike the punitive damages provision, the expert witness fee provision contains an explicit amendment to the 1964 Civil Rights Act. 42 U.S.C. § 2000e-5(k).

Moreover, the presence of the explicit amendatory language in 42 U.S.C. § 2000e-5(k) reinforces our concern for the lack of an equally explicit amendment to the 1964 Act in 42 U.S.C. § 1981a(a)(1).

At the same time, the incorporation of expert witness fees in Xieng is consistent with an interpretation of RCW 49.60.030(2) as limiting the incorporation of federal remedies to costs of suit. See Xieng, 120 Wash.2d at 528, 844 P.2d 389.

Dailey, 129 Wn.2d at 577 (paragraph formatting added).

[1-12] IF LEGISLATURE INTENDED TO MAKE PUNITIVE DAMAGES AVAILABLE UNDER THE WLAD, IT WOULD HAVE UNAMIBUOUSLY SO PROVIDED: “Where the Legislature has intended the exceptional relief of punitive damages, the statute has contained an explicit authorization.” Id. at 577 (citing RCW 9.73.230(11); RCW 19.86.090). “The Legislature here, presumably aware of Congress’ decision to allow punitive damages in the 1991 Civil Rights Act, had the opportunity to follow suit in its 1993 amendments to the LAD.” Dailey, 129 Wn.2d at 577.

∴ Majority Court’s Analysis: “If the Legislature intended to make punitive damages available for employment discrimination under the LAD, it would have unambiguously so provided.” Id.

[1-13] PLAINTIFF’S CLAIM IS UNTIMELY — RETROSPECTIVE PUNITIVE DAMAGES ARE UNAVAILABLE: The Court “observe[d] that even if the LAD permitted punitive damages for employment discrimination generally, that relief would remain unavailable in the present case.” Id. at 578.

∴ Majority Court’s Analysis: “The Civil Rights Act, the only potential authorization for punitive damages under the LAD, did not permit that relief until 1991. Plaintiffs’ claim concerns conduct prior to 1991.” Id. “Retrospective punitive damages thus could not constitute a ‘remedy available’ under the Civil Rights Act.” Id. (citing RCW 49.60.030(2); McGinnis v. Kentucky Fried Chicken, 51 F.3d 805, 807-08 (9th Cir.1994)).

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

[1-14] PUNITIVE DAMAGES ARE UNAVAILABLE UNDER THE WLAD, RCW 49.60; RETROSPECTIVE PUNITIVE DAMAGES ARE UNAVAILABLE UNDER THE FEDERAL CIVIL RIGHTS ACT: In this case, the Court held that “punitive damages are unavailable under the Law Against Discrimination (LAD), RCW 49.60.” Dailey, 129 Wn.2d at 574 (hyperlink added). Moreover, “[r]etrospective punitive damages … could not constitute a ‘remedy available’ under the Civil Rights Act.” Id. at 578.

» CONCURRING OPINION: TALMADGE, Justice (concurring); JOHNSON, ALEXANDER and SANDERS, JJ., concur.

“Although I agree with the majority that the trial court erred in granting summary judgment for Ms. Dailey in this case, I disagree with the majority’s analysis on exemplary damages under RCW 49.60.030(2), and therefore write separately.” Dailey v. North Coast Life Insurance Company, 129 Wn.2d at 578 (emphasis added). NOTE: The term “exemplary damages” is synonymous with punitive damages. See Black’s Law Dictionary 417 (8th ed. 2004).

**ISSUE #2 (Concurring Opinion):** Did “the Legislature intend[ ] by its 1993 amendments to RCW 49.60, our Law Against Discrimination, to incorporate the remedy of exemplary damages allowed in federal civil rights actions[ ]”?

[2-1] FEDERAL LAW

Before 1991 — Punitive Damages Unavailable to Federal Civil Rights Plaintiffs: “Prior to 1991, a successful federal civil rights plaintiff generally could not recover exemplary damages.” Dailey, 129 Wn.2d at 578-79 (citing 42 U.S.C. § 2000e-5).

After 1991 — Punitive Damages Available to Successful Litigants Under the Civil Rights Act of 1964: “In the 1991 Civil Rights Act, Congress included a new statutory section, 42 U.S.C. § 1981a, which provides:

In an action brought by a complaining party under section 706 or 717 of the Civil Rights Act of 1964 [42 U.S.C. §§ 2000e-5, 2000e-16] against a respondent who engaged in unlawful intentional discrimination (not an employment practice that is unlawful because of its disparate impact) prohibited under section 703, 704, or 717 of the Act [42 U.S.C. §§ 2000e-2, 2000e-3], and provided that the complaining party cannot recover under section 1981 of this title, the complaining party may recover compensatory and punitive damages as allowed in subsection (b) of this section, in addition to any relief authorized by section 706(g) of the Civil Rights Act of 1964, from the respondent.

Dailey, 129 Wn.2d at 579 (emphasis and hyperlinks added). Thus, “[u]nder the terms of the statute, a successful litigant under the Civil Rights Act of 1964 can recover exemplary damages.” Dailey, 129 Wn.2d at 579.

[2-2] WASHINGTON LAW

1993 Amendments: “In 1993, the Washington Legislature adopted amendments to RCW 49.60.030(2) relating to private actions under RCW 49.60, allowing a party to seek:

to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter or the United States Civil Rights Act of 1964 as amended, …

Dailey, 129 Wn.2d at 580 (citing Laws of 1993, ch. 69, § 1; Laws of 1993, ch. 510, § 3(2)) (emphasis in original) (hyperlinks added). “The ‘as amended’ language was adopted in two separate legislative enactments by the 1993 Legislature, ch. 69, Laws of 1993, § 1 and ch. 510, Laws of 1993, § 3(2).” Dailey, 129 Wn.2d at 580.

1995 Reenactment: “The Legislature reenacted RCW 49.60.030(2) in its present form combining the disparate amendments to RCW 49.60.030 in Ch. 135, Laws of 1995, § 3.” Dailey, 129 Wn.2d at 580. “Thus, on three separate occasions in 1993 and 1995, the Legislature adopted legislative language incorporating into RCW 49.60 remedies authorized by the 1991 amendment to the Civil Rights Act of 1964.” Dailey, 129 Wn.2d at 580 (hyperlinks added).

The Legislature Intended to Incorporate Federal Remedies in the WLAD: “By adopting the ‘as amended’ language in 1993 and 1995, the Legislature intended to incorporate federal remedies in RCW 49.60.” Dailey, 129 Wn.2d at 581 (hyperlink added).

Rule of Statutory Construction (Presumed Awareness): “The Legislature is presumed to be aware of judicial interpretation of its statutes.” Id. at 581 (citing Friends of Snoqualmie Valley v. King County Boundary Review Bd., 118 Wash.2d 488, 496, 825 P.2d 300 (1992)).

Rule of Statutory Construction (Presumption of Acquiescence): “Another principle of statutory construction [is that] “Legislative silence regarding the construed portion of the statute in a subsequent amendment creates a presumption of acquiescence in that construction.” Id. (citing Baker v. Leonard, 120 Wash.2d 538, 545, 843 P.2d 1050 (1993)) (internal citations omitted).

[2-3] RETROACTIVE APPLICATION OF THE 1993 AMENDMENTS: “In Landgraf v. U.S.I. Film Prods., a former employee brought an action alleging sexual harassment and retaliation in violation of Title VII of the Civil Rights Act of 1964[ ][:]

The United States Supreme Court held the provisions of the 1991 Civil Rights Act, including 42 U.S.C. § 1981a, do not apply to a case pending on appeal when the statute was enacted, and had prospective effect only. The Court declined to apply the 1991 amendments retroactively unless Congress made clear such an intent. The Court found no such clear Congressional intent for retroactive application of the 1991 amendments.

Dailey, 129 Wn.2d at 582 (citing Landgraf v. U.S.I. Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 1505, 128 L.Ed.2d 229 (1994)) (hyperlinks added).

[2-4] FEDERAL LAW — SUCCESSFUL CLAIMANTS MAY RECOVER PUNITIVE DAMAGES UNDER THE 1964 CIVIL RIGHTS ACT AS AMENDED BY 1991 LEGISLATION:

“The majority determines the 1991 Civil Rights Act may not have amended the 1964 Civil Rights Act, majority op. at 5, based on an argument first raised by amicus Washington Defense Trial Lawyers Association that 42 U.S.C. § 1981a is a separate section and does not actually amend the text of the Civil Rights Act of 1964.” Dailey, 129 Wn.2d at 579 (hyperlink added).

∴ Concurring Court’s Analysis: “This hypertechnical argument ignores the plain language of 42 U.S.C. § 1981a(a)(1) allowing exemplary damages in ‘an action brought by a complaining party under § 706 or 717 of the Civil Rights Act of 1964 …'” Dailey, 129 Wn.2d at 579 (hyperlink added).

Example: McGinnis v. Kentucky Fired Chicken: “In McGinnis v. Kentucky Fried Chicken, 42 F.3d 1273 (9th Cir.), amended and superseded by 51 F.3d 805 (9th Cir.1994), the United States Court of Appeals for the Ninth Circuit specifically held punitive damages are allowed under the Civil Rights Act of 1964 as amended by the 1991 Civil Rights Act: ‘Punitive damages are authorized by that statute today.'” Dailey, 129 Wn.2d at 579-80 (internal citations omitted).

Example: Landgraf v. U.S.I. Film Prods.: “The United States Supreme Court in Landgraf v. U.S.I. Film Prods., 511 U.S. 244, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994) similarly held exemplary punitive damages were available under the Civil Rights Act of 1964.” Dailey, 129 Wn.2d at 580.

“As interpreted by the federal courts, successful federal civil rights claimants may recover exemplary damages under the 1964 Civil Rights Act, as amended by the 1991 legislation, as a means of enforcing federal antidiscrimination law.” Dailey, 129 Wn.2d at 580.

[2-5] WASHINGTON LAW — EXPRESS AUTHORIZATION DOES NOT REQUIRE THE SPECIFIC WORDS “PUNITIVE DAMAGES”

“Notwithstanding … the statutory language, the majority finds exemplary damages are unavailable to claimants under RCW 49.60.030 because of Washington’s strong public policy against punitive damages.” Dailey, 129 Wn.2d at 580 (internal citations omitted) (hyperlink added). “The majority asserts exemplary damages are unavailable under Washington law in the absence of express statutory authorization. By this, the majority seems to mean the Legislature must use the specific words “punitive damages.” Id. at 580-81.

∴ Concurring Court’s Analysis:

“This argument is too literal and ignores the clear direction of RCW 49.60.030 and the legislative history of the state and federal enactments.” Id. at 581 (hyperlink added).

The McGinnis Case. “By 1995, when the Legislature again amended RCW 49.60.030(2), the Legislature had the benefit of the decisions in Landgraf and McGinnis[ ][:]

In McGinnis, the Ninth Circuit held exemplary damages are available to successful claimants under RCW 49.60 because RCW 49.60.030(2) incorporated federal remedies and the Civil Rights Act of 1964, as amended in 1991, permitted successful claimants to recover exemplary damages.

Dailey, 129 Wn.2d at 581 (hyperlinks added).

Canons of Statutory Construction. “[T]he Legislature [was not] ignorant of the nature of its own actions. As we have stated: The Legislature is presumed to be aware of judicial interpretation of its statutes.” Id. “Another principle of statutory construction [is that] ‘Legislative silence regarding the construed portion of the statute in a subsequent amendment creates a presumption of acquiescence in that construction.'” Id. “The Legislature had to know it was incorporating the federal remedy of punitive damages into RCW 49.60.” Dailey, 129 Wn.2d at 581 (hyperlink added).

Legislature’s Intent Rendered Meaningless. “By adopting the ‘as amended’ language in 1993 and 1995, the Legislature intended to incorporate federal remedies in RCW 49.60. But the majority’s interpretation of RCW 49.60.030(2) renders virtually meaningless the Legislature’s intent[:]

RCW 49.60.030(2) specifically mentions injunctive relief, and recovery of actual damages, costs and a reasonable attorney fee. We have already allowed expert witness fees as a cost of litigation. Xieng v. Peoples Nat’l Bank, 120 Wash.2d 512, 528, 844 P.2d 389 (1993)).

The reference to federal law remedies must be intended to expand upon the already mentioned remedies. However, beyond injunctive relief, compensatory damages, costs and attorney fees, nothing of substance is left but the punitive damages added to federal law in 1991.

Dailey, 129 Wn.2d at 581-82 (hyperlinks added). “The Legislature clearly understood it was adopting exemplary damages as part of Washington’s antidiscrimination law when it amended RCW 49.60.030(2) in 1993 and 1995.” Dailey, 129 Wn.2d at 582 (hyperlink added).

[2-6] RETROACTIVE APPLICATION OF THE 1993 AMENDMENTS: “Counsel for Ms. Dailey argues the amendments to RCW 49.60.030(2) must be applied retroactively because they are remedial in nature.” Dailey, 129 Wn.2d at 582.

∴ Concurring Court’s Analysis: “I disagree. Because the Legislature adopted a federal remedy, we are obliged to construe the federal remedy in accordance with Congressional intent as understood by the federal courts.” Id. at 582 (citing Xieng, 120 Wash.2d at 528-29, 844 P.2d 389).

“The United States Supreme Court in Landgraf determined the 1991 amendments to the Civil Rights Act of 1964 providing for compensatory and punitive damages could not be retroactively applied. If Ms. Dailey may not recover exemplary damages under federal law, she may not recover exemplary damages under RCW 49.60.030(2), as amended.” Dailey, 129 Wn.2d at 582-83.

[2-7] FEDERAL CIVIL RIGHTS CLAIMANTS MAY RECOVER PUNITIVE DAMAGES UNDER CIVIL RIGHTS ACT OF 1964, AS AMENDED; WA LEGISLATURE CLEARLY UNDERSTOOD IT WAS ADOPTING PUNITIVE DAMAGES WHEN IT AMENDED RCW 49.60.030(2); AND PLAINTIFF CANNOT RETROACTIVELY APPLY PUNITIVE DAMAGES:

The concurring Court evaluated this case based on three categories and concluded as follows:

1. Regarding Federal Law:

As interpreted by the federal courts, successful federal civil rights claimants may recover exemplary damages under the 1964 Civil Rights Act, as amended by the 1991 legislation, as a means of enforcing federal antidiscrimination law.

Dailey, 129 Wn.2d at 580.

2. Regarding WA Law:

The Legislature clearly understood it was adopting exemplary damages as part of Washington’s antidiscrimination law when it amended RCW 49.60.030(2) in 1993 and 1995.

Dailey, 129 Wn.2d at 582

3. Regarding Retroactive Application of 1993 Amendments:

The United States Supreme Court in Landgraf determined the 1991 amendments to the Civil Rights Act of 1964 providing for compensatory and punitive damages could not be retroactively applied. If Ms. Dailey may not recover exemplary damages under federal law, she may not recover exemplary damages under RCW 49.60.030(2), as amended.

Dailey, 129 Wn.2d at 582-83.

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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

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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.

[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)).

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July 10, 2021May 26, 2022

Jenkins v. Palmer, 116 Wn.App. 671 (Div. 2 2003)

This is a case summary of Jenkins v. Palmer, 116 Wn.App. 671 (Div. 2 2003). Subjects include:

» HOSTILE WORK ENVIRONMENT

» CO-WORKER LIABILITY

» WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY

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.

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**Jenkins v. Palmer, 116 Wn.App. 671 (Div. 2 2003)**

case summarY – 10 PRIMARY Facts:

[1] [Debra] Palmer and [Prince] Jenkins were co-workers at the Washington Corrections Center (WCC)[.]

[2] Jenkins sued Palmer to recover funds he gave her as part of an investment agreement.

[3] Palmer then filed a counterclaim in which she alleged sexual harassment and discrimination.

[4] Palmer claimed that Jenkins filed his lawsuit in retaliation for her report of his sexually discriminatory behaviors, which she alleged led to the loss of his job.

[5] She described the behaviors as[:]

(1) harassing her by calling her on the phone;

(2) making sexual advances toward her;

(3) telling other co-workers to stay away from her because she was his property;

(4) telling her that associating with other co-workers would make her “nothing but a slut,” and that women should be slapped around and have sense knocked into them;

(5) threatening to kill her with the rifle he kept in his guard tower;

(6) threatening to flatten her car tires;

(7) mentioning that he carried a gun in his car and that he was not afraid to use it on her;

(8) phoning her in her guard tower after she told him that she wanted him to leave her alone;

(9) approaching her in the WCC’s smoking gazebo, and threatening a co-worker who refused to leave; and

(10) calling her house and hanging up.

[6] Palmer alleged that Jenkins’s behavior affected her ability to do her job and that she feared for her safety and suffered great emotional distress.

[7] Jenkins moved for partial summary judgment on Palmer’s counterclaim . . . [wherein] he denied Palmer’s allegations and asserted that he was Palmer’s co-worker, with no supervisory or managerial control over her.

[8] He argued that the WLAD [(Washington Law Against Discrimination, RCW 49.60)] did not cover this situation.

[9] The trial court dismissed Palmer’s counterclaim, characterizing its order as a final judgment under CR 54(b) to allow Palmer to file an immediate appeal.

[10] On appeal, Palmer argues, as she did . . . [in the trial court,] that (1) a co-worker may be held personally liable for violating the WLAD, and (2) Jenkins’s actions also violated public policy against sexual discrimination and retaliation.

Jenkins v. Palmer, 116 Wn.App. 671 (Div. 2 2003) (internal citations omitted) (paragraph formatting and hyperlinks added).

ISSUE #1: Does the Washington Law Against Discrimination apply to the situation where a co-worker, acting on his own behalf, harasses, threatens, or makes sexual advances toward another worker?

[1-1] UNFAIR PRACTICES OF EMPLOYERS: “RCW 49.60.180(3) states that it is an unfair practice for an 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 or the use of a trained dog guide or service animal by a disabled person[.]”

Jenkins v. Palmer, 116 Wn.App. 671, 674 (Div. 2 2003) (emphasis and hyperlink added).

[1-2] DEFINITION OF EMPLOYER: “RCW 49.60.040(3) defines ’employer’ to include ‘any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons[.]’ (emphasis added).” Jenkins, 116 Wn.App. at 674 (hyperlink added).

[1-3] MANAGER & SUPERVISOR LIABILITY: “The [court in] Brown [v. Scott Paper Worldwide Co., 143 Wash.2d 349, 20 P.3d 921 (2001),] held that managers and supervisors may be personally liable under the WLAD when acting in their employer’s interest.” Jenkins, 116 Wn.App. at 675 (citing Brown, 143 Wash.2d at 358).

The court’s “holding is based on the express text of RCW 49.60.040(3), specifically the broad definition of ’employer’ as including any ‘person acting in the interest of an employer.‘” Jenkins, 116 Wn.App. at 675 (citing Brown, 143 Wash.2d at 357-58) (internal citations and quotation marks omitted) (emphasis in original) (hyperlink added).

[1-4] UNFAIR PRACTICE TO AID VIOLATION: RCW 49.60.220 “provides that:

It is an unfair practice for any person to aid, abet, encourage, or incite the commission of any unfair practice, or to attempt to obstruct or prevent any other person from complying with the provisions of this chapter or any order issued thereunder.

Jenkins, 116 Wn.App. at 675 (hyperlink added). RCW 49.60.220, although broad, focuses on conduct that encourages others to violate the WLAD. Jenkins, 116 Wn.App. at 675.

“The references to ‘aid, abet, encourage, or incite’ and to ‘prevent any other person from complying’ show that the statute applies only where the actor is attempting to or has involved a third person in conduct that would violate the WLAD.” Id. at 675-76 (citing RCW 49.60.220) (hyperlink added).

[1-5] UNFAIR PRACTICE (RETALIATION): RCW 49.60.210 “provides:

(1) It is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified or assisted in any proceeding….

Jenkins, 116 Wn.App. at 676.

[1-6] BROWN v. SCOTT PAPER WORLDWIDE CO: In this case, “Palmer contends that under Brown v. Scott Paper Worldwide Co., 143 Wash.2d 349, 20 P.3d 921 (2001), co-workers may be personally liable even when not acting in a supervisory capacity.” Jenkins, 116 Wn.App. at 675.

However, “[t]he Brown court held that managers and supervisors may be personally liable under the WLAD when acting in their employer’s interest.” Id. (citing Brown, 143 Wash.2d 349, 358, 20 P.3d 921) (emphasis added). Co-workers were not included as a category in the holding.

The Brown court based its holding “on the express text of RCW 49.60.040(3), specifically the broad definition of ’employer’ as including any ‘person acting in the interest of an employer.'” Jenkins, 116 Wn.App. at 675 (citing Brown, 143 Wash.2d at 357-58, 20 P.3d 921)) (internal citations and quotations marks omitted) (emphasis in original)).

Thus, the Court concluded that “[b]ecause Palmer does not contend that Jenkins was acting in the interest of WCC or that his conduct was anything other than personal, she has not shown Jenkins’s liability under the statute.” Id.

[1-7] UNFAIR PRACTICE TO AID VIOLATION (RCW 49.60.220): Here, the Court considered Palmer’s claim pursuant to RCW 49.60.220, and it found as follows:

RCW 49.60.220, although broad, focuses on conduct that encourages others to violate the WLAD. The references to ‘aid, abet, encourage, or incite’ and to ‘prevent any other person from complying’ show that the statute applies only where the actor is attempting to or has involved a third person in conduct that would violate the WLAD.

Jenkins, 116 Wn.App. at 675-76 (citing RCW 49.60.220) (hyperlink added).

Accordingly, there was “no basis to read RCW 49.60.220 as covering acts of harassment committed by a co-worker acting alone.” Jenkins, 116 Wn.App. at 676 (emphasis and hyperlink added).

[1-8] UNLAWFUL RETALIATION (RCW 49.60.210): In the instant case, Palmer “argued for the first time for application of RCW 49.60.210.” Jenkins, 116 Wn.App. at 676 (hyperlink added). But the Court did not address this contention, because, “Palmer has not argued this theory in her brief or provided any support for treating the filing of a non-frivolous lawsuit for monies owing as an act of discrimination under the WLAD.” Id. (citing RAP 2.5).

The Court also raised and dismissed any attempt to analogize the instant case to the application of RCW 49.60.210 in Galbraith v. TAPCO Credit Union, 88 Wash.App. 939, 946 P.2d 1242 (1997). Jenkins, 116 Wn.App. at 676.

[1-9] GALBRAITH V. TAPCO CREDIT UNION: In Galbraith, “[t]he defendant was a credit union that had terminated the plaintiff’s membership because the plaintiff had supported the credit union’s employees in their legal action against the credit union for a WLAD violation.” Id. However, although TAPCO Credit Union presented as a non-employer, the Court did not consider that case to be analogous to Jenkins; “[t]he specific facts … [in Galbraith] fit within the statutory language.” Id.

The Galbriath court ultimately “held that the credit union fit the definition of an ‘other person’ who had discriminated against Galbraith, and Galbraith fit the definition of ‘any person,’ because of his opposition to discriminatory practices prohibited by the WLAD.” Jenkins, 116 Wn.App. at 676 (citing Galbraith, 88 Wash.App. at 948-51, 946 P.2d 1242).

[1-10] WLAD DOES NOT APPLY TO SITUATION WHERE CO-WORKER, ACTING ON HIS OWN BEHALF, HARASSES, THREATENS, OR MAKES SEXUAL ADVANCES: The Court affirmed the trial court’s ruling that the Washington Law Against Discrimination “does not apply to the situation where a co worker, acting on his own behalf, harasses, threatens, or makes sexual advances toward another worker . . . even when liberally construed to effectuate its broad purposes.” Id. at 673.
.

ISSUE #2: Did Jenkins (a co-worker) violate public policy against sexual discrimination and retaliation?

[2-1] IMPLIED CAUSE OF ACTION: “In Bennett, the employer did not employ more than eight people, a requirement for coverage under the WLAD.” Id. at 677 (citing Bennett v. Hardy, 113 Wash.2d 912, 915, 784 P.2d 1258 (1990)).

“Seeking a remedy for a clear violation of public policy, the Bennett court found an implied cause of action under RCW 49.44.090 against an employer who discriminated on the basis of age discrimination.” Jenkins, 116 Wn.App. at 677 (citing Bennet, 113 Wash.2d at 921) (hyperlink added).

[2-2] WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY: “[A] plaintiff who is dismissed for engaging in conduct protected by public policy may bring a claim against her employer for wrongful discharge in violation of public policy.” Id. (citing Gardner v. Loomis Armored, Inc., 128 Wash.2d 931, 941, 913 P.2d 377, 382 (1996)).

[2-3] IMPLIED CAUSE OF ACTION: “Citing Bennett v. Hardy … Palmer claim[ed] that Jenkins’s conduct violated the public policy against retaliation.” Id. But the court determined that “[u]nlike Bennett, Palmer has not shown that Jenkins’s conduct violated a specific statutory prohibition.” Id.

[2-4] WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY: Palmer suggested “that Jenkins committed the common law tort of retaliation and wrongful discharge in violation of public policy.” Id. However, the Court reasoned that “Palmer … [did] not allege that WCC terminated her or that Jenkins was her employer.” Id

[2-5] POLICY AGAINST SEXUAL DISCRIMINATION AND RETALIATION DOES NOT APPLY (AFFIRMED): The Court found “no basis to create a new common law cause of action; and the theory of wrongful termination in violation of public policy “does not apply.” Id. Accordingly, it affirmed the trial court’s decision.

NOTABLES & IMPLICATIONS:

HOSTILE WORK ENVIRONMENT

(1) The Court in this case seems to imply that a co-worker may be held liable for harassment in violation of the Washington Law Against Discrimination if that co-worker was acting in the interests of the employer when the alleged unlawful harassment occurred. See id. at 674.

IMPLIED CAUES OF ACTION

(2) An implied cause of action may be asserted against defendant employers that escape the reach of the Washington Law Against Discrimination.

The case of Bennett v. Hardy, 113 Wash.2d 912, 784 P.2d 1258 (1990), involved a defendant employer with less than eight employees thereby making the Washington Law Against Discrimination inapplicable. The Court in this case explained that “the Bennett court found an implied cause of action under RCW 49.44.090 against an employer who discriminated on the basis of age discrimination.” Jenkins, 116 Wn.App. at 677 (citing Bennett, 113 Wash.2d at 921) (hyperlink added). However, “[u]nlike Bennett, Palmer has not shown that Jenkins’s conduct violated a specific statutory prohibition.” Id.

Thus, [the Court found] … no basis to create a new common law cause of action in this case.” Id.

PERSONAL LIABILTY: MANAGERS & SUPERVISORS

(3) The court in Brown v. Scott Paper Worldwide Co., 143 Wash.2d 349, 20 P.3d 921 (2001), “found that managers and supervisors may be personally liable under the WLAD when acting in their employer’s interest.” Jenkins, 116 Wn.App. at 675.
.

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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

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**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)).

case summary – 7 Facts:

» MAJORITY OPINION: DOLLIVER, Justice; DURHAM, C.J., and SMITH, GUY and MADSEN, JJ., concur.

ISSUE #1 (Majority Opinion): Did the trial court err in granting Plaintiff’s motion, concluding RCW 49.60.030(2) both permitted punitive damages in an employment discrimination action and operated retrospectively?

» CONCURRING OPINION: TALMADGE, Justice (concurring); JOHNSON, ALEXANDER and SANDERS, JJ., concur.

ISSUE #2 (Concurring Opinion): Did “the Legislature intend[ ] by its 1993 amendments to RCW 49.60, our Law Against Discrimination, to incorporate the remedy of exemplary damages allowed in federal civil rights actions[ ]”?

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case summarY – 12 Facts:

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?

NOTABLES & IMPLICATIONS:

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case summarY – 10 PRIMARY Facts:

ISSUE #1: Does the Washington Law Against Discrimination apply to the situation where a co-worker, acting on his own behalf, harasses, threatens, or makes sexual advances toward another worker?

ISSUE #2: Did Jenkins (a co-worker) violate public policy against sexual discrimination and retaliation?

NOTABLES & IMPLICATIONS:

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CASE SUMMARY – 16 Facts:

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

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

NOTABLES & IMPLICATIONS:

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**ISSUE #1 (Majority Opinion):** Did the trial court err in granting Plaintiff’s motion, concluding RCW 49.60.030(2) both permitted punitive damages in an employment discrimination action and operated retrospectively?

**ISSUE #2 (Concurring Opinion):** Did “the Legislature intend[ ] by its 1993 amendments to RCW 49.60, our Law Against Discrimination, to incorporate the remedy of exemplary damages allowed in federal civil rights actions[ ]”?