Division 3 Archives - Washington Employment Law Digest

May 26, 2022November 19, 2022

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

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

» RACE AS A PROTECTED CLASS

» HOSTILE WORK ENVIRONMENT

» DISPARATE TREATMENT

» RETALIATORY DISCHARGE

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

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

case summarY – 12 PRIMARY Facts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[e] When he returned, he was terminated.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(1) unwelcome,

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

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

(4) imputable to the employer.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[1-5a] TOTALITY OF THE CIRCUMSTANCES

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

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

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

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

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

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

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

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

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

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

(1) the employee belongs to a protected class;

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

(3) than a similarly situated, nonprotected employee,

(4) who does substantially the same work.

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

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

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

SPECIFIC INSTANCE #1 — THE PICTURE:

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

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

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

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

SPECIFIC INSTANCE #2 — THE CAR:

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

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

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

SPECIFIC INSTANCE #3 — THE HARSHER DISCIPLINE:

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

» “West One disputes this claim.” Id.

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

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

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

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

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

(1) he engaged in a statutorily protected activity;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

NOTABLES & IMPLICATIONS:

OVERCOMING SUMMARY JUDGMENT IN DISCRIMINATION CASES

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

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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

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

case summarY – 12 Facts:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[1-2] THE WLAD SEXUAL HARASSMENT PROVISION (RCW 49.60.180(3)): “The statute provides in relevant part, ‘[i]t is an unfair practice for any employer … [t]o discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability[.]'” Id. (citing RCW 49.60.180(3)) (alteration in original).

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

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

(1) offensive, unwelcome contact that

(2) occurred because of sex or gender,

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

(4) can be imputed to the employer.

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

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

[1-6] HOSTILE WORK ENVIRONMENT — 3RD ELEMENT (AFFECTED THE TERMS OR CONDITIONS OF EMPLOYMENT): “Casual, isolated or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law.” Id. at 162.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Id. at 165 (paragraph formatting added).

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

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

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

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

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

Id. (alterations in original).

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

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

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

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

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

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

Id.

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

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

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

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

Id.

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

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

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

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

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

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

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

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

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

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

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

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

Id. at 165-66.

The Court then found as follows:

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

Id. at 166.

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

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

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

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

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

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

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

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

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

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

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

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

NOTABLES & IMPLICATIONS:

POLICY BEHIND THE FARAGHER-ELLERTH DEFENSE

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

SUMMARY JUDGMENT & WLAD

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

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

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

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

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

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