This is a case summary of Malo v. Alaska Trawl Fisheries, Inc., 92 Wn.App. 927 (Div. 1, 1998). Primary subjects include, but are not limited to the following:
» UNLAWFUL RETALIATION
» CO-WORKER LIABILITY
» PRINCIPLES OF STATUTORY CONSTRUCTION
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CASE SUMMARY – 14 Facts:
[1] Alaska Trawl Fisheries, Inc. (ATF) owned the fishing vessel F/T ENDURANCE, a factory trawler.
[2] ATF employed Anthony Malo and Bart Campbell to alternate as captains.
[3] Early in 1992, Malo twice confronted Campbell about complaints that Campbell was behaving improperly towards some of the female crew members.
[4] Campbell denied any improper behavior and became antagonistic towards Malo.
[5] Malo reported the complaints and his confrontation with Campbell to Bill Howell, who was ATF’s president at that time.
[6] On October 27, 1993, Craig Cross became the new president of ATF, replacing Howell.
[7] A few days later, Cross went to Dutch Harbor to see the F/T ENDURANCE. While there, Cross met with Campbell, who was the captain on board, and other officers and crew members.
[8] According to Malo, Cross told him that he had chosen to retain Campbell as the sole captain because he preferred not to have a bifurcation of the crew and because Campbell was more acceptable to ATF’s owners.
[9] Malo then told Cross about the sexual harassment allegations other crew members had made against Campbell.
[10] According to Malo, Cross appeared to have no prior knowledge of these allegations.
[11] He later sued Cross, ATF, Campbell and Campbell’s company, Campbell Fisheries, Inc. (CFI).
[12] Malo brought a retaliatory discharge claim against Campbell, the co-captain, under Washington’s Law Against Discrimination, RCW 49.60.
[13] The trial court dismissed it on the ground that Campbell was not Malo’s employer and therefore was not subject to liability under RCW 49.60.210(1).
[14] Malo appeals contending that the statute unambiguously controls the conduct of any “person” even if that person is not an employer.
Malo v. Alaska Trawl Fisheries, Inc., 92 Wn.App. 927 (Div. 1, 1998) (internal citations omitted) (hyperlink added).
ISSUE #1: Is a co-worker subject to suit under RCW 49.60.210(1)?
[1-1] WLAD ANTI-RETALIATION PROVISION: “RCW 49.60.210(1) provides:
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 under this chapter.
Malo v. Alaska Trawl Fisheries, Inc., 92 Wn.App. 927, 930 (Div. 1, 1998) (citing RCW 49.60.210(1)) (emphasis and hyperlink added).
[1-2] PRINCIPLE OF STATUTORY CONSTRUCTION–GENERAL TERMS: “A general term used at the end of a sequence in a statute is restricted in its application by the preceding words.” Id.
[1-3] PRINCIPLE OF STATUTORY CONSTRUCTION–CONTEXT: “Provisions in a statute are to be read in the context of the statute as a whole.” Id. (citing Pope v. University of Washington, 121 Wash.2d 479, 489, 852 P.2d 1055 (1993)).
[1-4] PRINCIPLE OF STATUTORY CONSTRUCTION–THE EJUSDEM GENERIS RULE: “The ejusdem generis rule requires that general terms appearing in a statute in connection with specific terms are to be given meaning and effect only to the extent that the general terms suggest items similar to those designated by the specific terms.” Id.
[1-5] WLAD ANTI-RETALIATION PROVISION & THE PRINCIPLES OF STATUTORY CONSTRUCTION: In this case, the Court applied the principles of statutory construction to RCW 49.60.210(1) and held “that the general term ‘or other person’ is restricted by the words ’employer,’ ’employment agency’ and ‘labor union.'” Id. at 930 (citing RCW 49.60.210(1)) (emphasis and hyperlink added).
The Court reasoned that “[t]he section, read as a whole, is directed at entities functionally similar to employers who discriminate by engaging in conduct similar to discharging or expelling a person who has opposed practices forbidden by RCW 49.60.” Id. (hyperlink added).
The Court then determined as follows:
[1] Campbell did not employ, manage or supervise Malo.
[2] [Campbell] … was not in a position to discharge Malo or to expel him from membership in any organization[ ]”; the Court noted that this was in contrast to the case in “Galbraith v. Tapco Credit Union, 88 Wash.App. 939, 946 P.2d 1242 (1997), review denied, 135 Wash.2d 1006, 959 P.2d 125 (1998) (liability under RCW 49.60.210 extends to credit unions who discriminate against credit union members engaged in protected activities).
Malo, 92 Wn.App. at 930 (emphasis, paragraphs, and hyperlink added).
[1-6] RCW 49.60.210 DOES NOT CREATE PERSONAL AND INDIVIDUAL LIABILITY FOR COWORKERS (AFFIRMED): The Court concluded that “[b]ecause RCW 49.60.210 does not create personal and individual liability for co-workers, the trial court did not err in dismissing Malo’s claim against Campbell under that statute.” Malo, 92 Wn.App. at 930-31 (hyperlink added).
Accordingly, the Court affirmed the trial court’s ruling and held that “Campbell was not subject to suit under RCW 49.60.210(1) because he was Malo’s co-worker.” Malo, 92 Wn.App. at 928.
NOTABLES & IMPLICATIONS:
PRINCIPLES OF STATUTORY CONSTRUCTION
(1) CONTEXT: “Provisions in a statute are to be read in the context of the statute as a whole.” Id. at 930 (citing Pope v. University of Washington, 121 Wash.2d 479, 489, 852 P.2d 1055 (1993)).
(2) EJUSDEM GENERIS RULE: “The ejusdem generis rule requires that general terms appearing in a statute in connection with specific terms are to be given meaning and effect only to the extent that the general terms suggest items similar to those designated by the specific terms.” Id.
(3) GENERAL TERMS: “A general term used at the end of a sequence in a statute is restricted in its application by the preceding words.” Id.
THE WLAD ANTI-RETALIATION PROVISIONS: RCW 49.60.210
(4) CO-WORKER LIABILITY: RCW 49.60.210 does not create personal and individual liability for co-workers. See id. at 931.
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