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
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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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