Opinion
No. 46353-5-I.
Filed: August 10, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.
Appeal from Superior Court of King County, No. 98-2-16760-2, Hon. Linda Lau, February 25, 2000, Judgment or order under review.
Counsel for Appellant(s), Mary R. Mann, Mann Peck, 1423 Western Ave, Seattle, WA 98101-2021.
Counsel for Respondent(s), Russell L. Perisho, Perkins Coie, 40th Fl, 1201 3rd Ave, Seattle, WA 98101-3099.
Zane A. Brown Jr., Perkins Coie, 1201 3rd Ave Ste 4800, Seattle, WA 98101-3099.
On July 9, 1998, Sabrina Jefferson sued her employer, The Boeing Company, under numerous discrimination and tort theories. She claimed that during her tenure of employment, from 1988 to 1998, Boeing subjected her to continuous unwanted comments and actions because of her race and gender. Relying on the Washington Law Against Discrimination (WLAD), RCW 49.60.180 and .210, Jefferson alleged sexual harassment, hostile work environment, disparate treatment, constructive discharge, and racial discrimination. Jefferson also alleged tort theories, including intentional and negligent infliction of emotional distress, and negligent hiring, supervision and retention.
The trial court granted Boeing's motion for partial summary judgment. The court concluded that the three-year statute of limitations barred any claims for conduct occurring prior to July 9, 1995. The court later dismissed the remaining claims that were based on incidents that occurred within the limitations period, holding that Jefferson could not establish sufficient facts to defeat a summary judgment motion. Jefferson appeals, arguing that the equitable doctrine of `continuing violation' applies, thereby allowing her to recover for discriminatory conduct dating back to the beginning of her employment with Boeing in 1988.
We disagree, and affirm.
FACTS I. INCIDENTS PRIOR TO THE LIMITATIONS PERIOD
Jefferson began working for Boeing in February 1988 as a Quality Assurance (QA) Inspector. Before coming to Boeing, Jefferson had over fifteen years of experience as an inspector, and had been a lead QA Inspector at Hughes Aircraft.
A. Retaliation for Union Activities
Soon after her hire, Jefferson became active in the union. She represented numerous co-workers with their complaints against Boeing. Jefferson herself filed several informal and formal discrimination complaints with Boeing's Equal Employment Office (EEO). Due to her involvement with the union, Jefferson believed that Boeing management attempted to retaliate against her by taking adverse employment actions against her companion Randy Rivas. Jefferson and Rivas worked in the same department when she first began at Boeing. After Jefferson's involvement with the union, Boeing management transferred Rivas from shift to shift and from location to location. His transfers kept the two from working together.
Boeing's EEO responded to the inappropriate cartoons and other materials by collecting them. The record on appeal does not reveal what Boeing's EEO did in response to the other discrimination claims filed by Jefferson.
B. Denial of Training and Advancement Opportunities
Jefferson also claimed that Boeing denied her the opportunity to obtain training so that she could advance within the company. According to Jefferson's declaration, she sought training and advancement from the first day she began work at Boeing. Jefferson asked for training in pre-management and 747 Aircraft Familiarization, but Boeing never gave her the opportunity to receive the training. Three men, Randy Egbert, Mike Clowse, and Larry Messmer, all of whom had less time at Boeing than Jefferson, received the training that she had requested. Jefferson also asked to receive training so that she could transfer to the 777 program. Boeing told her she could not transfer because she was a union steward, but allowed Ray Baumgarnder, a union steward in manufacturing, to transfer to the program.
Jefferson also alleged in her declaration that the promotional process in her department was completely discretionary. Male employees hired at the time she was hired with either equal or lower qualifications were trained and promoted. Wayne Wilcox, a `Caucasian male who did not participate in protected activities, and who [was] hired [on] the same day as [Jefferson] and attended the same pre-employment class was promoted to a Union Grade 8 Lead Inspector within 2 years of his hire as a Grade 6 Inspector.' Joel Brandy was promoted to Customer Coordinator, within 5 years of his hiring date, which was the same as Jefferson's. Gene Bournique was promoted from Grade 6 to a Grade 8 or 9 position in Tooling Inspection before Jefferson was promoted.
C. Discriminatory Remarks Based on Race and Gender
In her deposition, Jefferson claimed that she had received offensive cartoons and jokes in the workplace, that a coworker called her a `black bitch,' and that a Boeing customer called her a `[s]ukiyaki [m]ama'. On three other occasions, employees had cursed at Jefferson due to her race or gender. Jefferson also alleged that one of her coworkers told her she could `use the walk,' apparently a negative reference to Jefferson's weight. Jefferson further stated that she overheard discriminatory remarks by Boeing employees such as `Val's got her pussy exposed to God and everybody,' and `there [are] too many . . . women at Boeing.' She also heard a mechanic refer to a coworker as a `crippled up gook bitch.'
II. INCIDENTS WITHIN THE LIMITATIONS PERIOD
Jefferson remained a Grade 6 inspector from the time she was hired in 1988 until August 1996 when she was promoted to Quality Assurance Supervisor. Jefferson alleged that from July 1995 though April 1996, Boeing promoted 14 white males to temporary supervisory Q.A. positions. Boeing did not post these position vacancies. Boeing did not have a formal application process for promotion until April 1996. It was then that Jefferson, for the first time, formally applied for a first level management position (FLMSP). Jefferson, along with approximately 300 other employees, completed the application package and successfully completed four of the five steps in the process.
Prior to completing the final phase, however, Jefferson received a letter stating that `the hiring organization had made an error,' the requisition had been cancelled, and another one would be issued. Boeing replaced the job qualifications. The new posting required the applicant to `have participated in the Material Review Board within the last 5 years.' According to Jefferson, the Material Review Board (MRB) experience requirement guaranteed that only the temporary supervisors would be qualified for the position. Jefferson applied for the QA Supervisor position in mid-June 1996 even though she did not have the Material Review Board experience. She received a letter stating that she did not meet the requirements.
Jefferson complained to Boeing's Human Resources and wrote a memo to her management expressing distress about bias in the application process, and the exclusion of minorities from the candidate pool. Following the letter, Human Resources informed Jefferson that her rejection was an error and that she would be reinserted in the process. Jefferson participated in the fifth step of the application process, and Boeing offered her a FLMSP position in the Wing Responsibility Center. Jefferson accepted the position. She had no training or prior experience in that department. She felt that Boeing had set her up to fail.
Ted Wells, her direct supervisor, did not introduce Jefferson to her crew, refused to sign her paperwork, gave her a huge workload, and offered little support. Wells did not inform her of the meetings for supervisors until a week after she had started her new position. Consequently, Jefferson missed her first meeting. According to Jefferson, Wells also humiliated her and demeaned her in front of her peers and crew. On one occasion, Wells cursed at Jefferson after she had returned from a victory celebration on behalf of a terminated employee who had been ordered reinstated following a lengthy arbitration hearing. Believing that Jefferson's attendance at the celebration was inappropriate for a supervisor, Wells said, `[Jefferson], you cannot bullshit me. I am watching you, I know every God-damn thing . . . that's going on, and that this discipline is not over with, not by a long shot.'
ANALYSIS
In reviewing a trial court's grant or denial of a motion for summary judgment, we apply the de novo standard of review. Kahn v. Salerno, 90 Wn. App. 110, 117, 951 P.2d 321, review denied, 136 Wn.2d 1016 (1998). All facts and reasonable inferences are viewed in the light most favorable to the nonmoving party. Kahn, 90 Wn. App. at 117. Summary judgment cannot be granted when there is a genuine issue of material fact. A material fact is one on which the outcome of the litigation depends, in whole or in part. Barrie v. Hosts of America, Inc., 94 Wn.2d 640, 642, 618 P.2d 96 (1980).
I. CONTINUING VIOLATION DOCTRINE
Actions brought under RCW 49.60 are subject to the three-year statute of limitations set forth in RCW 4.16.080(2). Douchette v. Bethel Sch. Dist. No. 403, 117 Wn.2d 805, 809-10, 818 P.2d 1362 (1991). This three-year statute of limitations also applies to claims for negligent or intentional infliction of emotional distress and negligent hiring and supervision. Milligan v. Thompson, 90 Wn. App. 586, 592, 953 P.2d 112 (1998). A cause of action ordinarily accrues when the tortious or discriminatory act or omission occurs. Milligan, 90 Wn. App. at 592 (relying on federal law in analyzing the continuing violation doctrine).
If the equitable continuing violation doctrine applies, the three-year statute of limitations period becomes irrelevant as long as one violation has occurred within the three-year period. Milligan, 90 Wn. App. at 595.
The plaintiff may then offer evidence of, and recover for, the entire continuing violation. Jefferson maintains that she can benefit from the doctrine of continuing violation. In Milligan, a case involving a Title VII claim, Division Two of the Court of Appeals adopted the three-part test from Berry v. Board of Supervisors of L.S.U., 715 F.2d 971, 981 (5th Cir. 1983), cert. denied, 479 U.S. 868 (1986), to determine whether the plaintiff established a continuing violation. To determine whether a substantial relationship exists between the timely conduct, which would allow the plaintiff to reach back and recover for earlier acts outside the limitation period, the court determines whether (1) the alleged acts involve the same type of discrimination tending to connect them in a continuing violation; (2) the alleged acts are recurring; and, (3) `most importantly, whether the untimely act has the degree of permanence that should have triggered the employee's awareness of and duty to assert his or her rights.' Milligan, 90 Wn. App. at 595; see also Speer v. Rand McNally Co., 123 F.3d 658, 663-64 (7th Cir. 1997) (no continuing violation where plaintiff was aware of the nature of the discriminatory acts as they occurred).
It is clear that under Berry, Jefferson cannot establish a genuine issue of material fact relating to the continuing violation doctrine. Jefferson does not dispute that she was aware of the discriminatory nature of the actions at the time they occurred. Indeed, Jefferson admits that she was aware that she was being discriminated against because of her race and gender as early as 1990. She perceived consequences and asserted her rights by filing both informal and formal complaints with Boeing's EEO department. After contacting Boeing's EEO, she began to document the discrimination. She also filed in May 1994 a discrimination claim with the Washington State Human Rights Commission. These formal charges raised the same conduct for which Jefferson now seeks relief. Because Jefferson was undisputedly aware of the discriminatory character of the conduct that occurred more than three years prior to her claim, at the time it occurred, her continuing violation claim is barred under Milligan and Berry.
Before determining the continuing violation issue, the trial court granted Boeing's motion to strike portions of Jefferson's declaration. Jefferson claims that had the trial court properly considered all statements in her declaration, the court would have ruled that the continuing violation doctrine applies. We disagree. The stricken statements in the declaration do not rebut the undisputed fact that Jefferson should have been aware of the discrimination at the time it occurred, and that she had a duty to assert her right against discrimination. Thus, even if the court improperly disregarded portions of Jefferson's declaration, the result would not have been different.
We hold that the continuing violation doctrine is not available to Jefferson because she was aware of the nature of the discriminatory acts as they occurred. Accordingly, Jefferson does not have a cause of action against Boeing for conduct occurring before July 1995.
II. CONTINUANCE
The case schedule here required the parties to complete discovery by October 11, 1999. Between the filing of the case in July 1998 and August 1999, Boeing propounded interrogatories and document requests, took three days of Jefferson's deposition, served subpoenas on Jefferson's medical providers and collected her medical records. Jefferson's counsel, on the other hand, conducted no discovery during this period.
Two weeks before the discovery cutoff, counsel for Jefferson filed a motion to continue the trial, arguing that the her trial calendar, and the discovery deadlines for other cases had prevented and would continue to prevent her from taking discovery in this case. The trial court granted a five-month trial continuance. The discovery cut-off was moved to February 8, 2000. Counsel later moved to extend discovery through March 14, 2000. Counsel claimed that her scheduling conflicts, and work demands by other cases prevented her from completing discovery. The trial court denied the motion.
On appeal, Jefferson claims the court abused its discretion because the court failed to find that granting the motion would have prejudiced Boeing. KCLR 4(d) provides that the court `may modify any date in the Case Schedule for good cause. . . .' We review a discovery order for an abuse of discretion. State v. Lewis, 115 Wn.2d 294, 797 P.2d 1141 (1990). In light of Jefferson's dilatory conduct, the trial court did not abuse its discretion by refusing to find good cause for a second trial continuance.
III. RACE AND GENDER DISCRIMINATION
WLAD prohibits discrimination `against any person in compensation or in other terms or conditions of employment because of . . . race or [gender].' RCW 49.60.180(3). To establish a prima facie case of racial discrimination, the plaintiff must generally establish "(i) that [the plaintiff] belongs to a racial minority; (ii) that he [or she] applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his [or her] qualifications, he [or she] was rejected; and (iv) that, after his [or her] rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications." Hill v. BCTI Income Fund-I, ___ Wn.2d ___, 23 P.3d 440, 446 (2001) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)); see also Johnson v. Dep't of Soc. Health Servs., 80 Wn. App. 212, 227, 907 P.2d 1223 (1996) (test applicable to gender discrimination).
Jefferson claims that ethnic minorities and women were treated less favorably at Boeing, as demonstrated by Boeing's attempt to exclude minorities and women from the QA Supervisor candidate pool. By requiring candidates to have five years of MRB experience, she claims that Boeing effectively excluded all the minorities. Her declaration assumes two propositions: one, that the MRB experience requirement is not a valid supervisory qualification; and two, that none of the minority employees had MRB experience. To support her allegation, she cites only to her declaration where she states that it is her belief that none of the minorities were qualified for the supervisory position because of the added MRB experience required. A party opposing summary judgment may not simply rely on speculation or consideration of its affidavits or declarations at face value. Seven Gables Corp. v. MGM/UA Entertainment Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986).
She also claims in her appellate brief that from July 1995 to August 1996, Boeing advanced fourteen Caucasian males to temporary supervisory positions. She makes no effort, however, to cite to the record in an attempt to prove that fourteen males were in fact promoted during the times alleged. Instead, she merely cites to Boeing's written procedures for interviewing and assessing a candidate for the FLMSP position. The document, alone, does not show that Jefferson was treated less favorably than Caucasian males. Even if we were to assume for purposes of this analysis that fourteen males were advanced during the time period alleged by Jefferson, she has not articulated any facts indicating that she was denied any of these positions due to her race or gender. In short, she has given no facts to justify her claim.
Furthermore, even if we were to hold that Jefferson has established a prima facie case of discrimination, she is unable to show that Boeing's legitimate nondiscriminatory reason is a mere pretext for a discriminatory purpose. If the employee successfully establishes a prima facie case, the burden shifts to the employer to produce `a legitimate nondiscriminatory reason for the challenged act.' Fell v. Spokane Transit Auth., 128 Wn.2d 618, 634, 911 P.2d 1319 (1996). `If the employer does so, the burden shifts back to the employee to produce `rebuttal' evidence that the defendant's alleged reason for discharge is a `pretext for what, in fact, is a discriminatory purpose." Hill v. BCTI Income Fund, 97 Wn. App. 657, 662, 986 P.2d 137 (1999), review granted, 140 Wn.2d 1005 (2000) (quoting Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 364, 753 P.2d 517 (1988)). Here, Boeing argues that all 300 applicants had to reapply under the FLMSP once the first requisition was cancelled.
Boeing additionally states that a clarified job description and qualifications requirement had to be issued because there was an exceedingly high number of applicants and inconsistencies and discrepancies in the way in which the FLMSP office was interpreting the job requirements. Jefferson has not articulated or made clear in her brief why this reason is not a legitimate nondiscriminatory reason for the challenged conduct, but rather a `pretext for what, in fact, is a discriminatory purpose.' Grimwood, 110 Wn.2d at 364. Any evidence to support her argument that Boeing had a discriminatory purpose lies in conduct that occurred prior to 1995. Since the continuing violation doctrine is not applicable here, Jefferson is unable to meet her burden of proof. Summary judgment dismissal of her discrimination claims was proper.
IV. HOSTILE WORK ENVIRONMENT
To establish a prima facie case for a hostile work environment claim based on race or gender, the plaintiff-employee must show (1) the harassment was unwelcome; (2) the harassment was because of race or gender; (3) the harassment was so severe that it affected the terms or conditions of employment; and (4) the harassment is imputed to the employer. Glasgow v. Georgia Pacific Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708 (1985); Fisher v. Tacoma School Dist. No. 10, 53 Wn. App. 591, 595-96, 769 P.2d 318, review denied, 112 Wn.2d 1027 (1989) (holding that the Glasgow test for a hostile work environment based on sex applies to a hostile work environment based on race as well).
Jefferson is unable to establish the second element. Jefferson's evidence of harassment consists of acts by Ted Wells, who she believes created a hostile work environment from July 1995 to July 1998. She has not presented a factual basis to support her claim that Wells' treatment of her was due to her race or gender. At her deposition, Jefferson could not assert a factual basis, and said only that her `knowledge of bigotry in the workplace' led her to believe that his treatment of her was based on her race and gender. Jefferson's failure to establish that the conduct was based on her race or gender is fatal to her hostile work environment claim.
V. RETALIATION CLAIM
To establish a prima facie case for retaliation, a plaintiff must show that (1) he or she engaged in statutorily-protected activity; (2) an adverse employment action was taken; and (3) there is a causal link between the employee's activity and the employer's adverse action. Delahunty v. Cahoon, 66 Wn. App. 829, 839, 832 P.2d 1378 (1992). The plaintiff need not show that retaliation was the only or "but for" cause of the adverse employment action, but he or she must establish that it was at least a substantial factor. Allison v. Housing Auth. of Seattle, 118 Wn.2d 79, 85-96, 821 P.2d 34 (1991). Jefferson has failed to establish a causal link between her union activities and her promotion into an unfamiliar department. Although she speculates that Boeing management set her up to fail, she has not provided any facts to support her allegation that her promotion to the Wing Responsibility Center was to retaliate against her for her union activities.
VI. INTENTIONAL OR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
The tort of outrage requires a showing of (1) extreme and outrageous conduct; (2) intentional or reckless infliction of emotional distress; and (3) actual result to the plaintiff of severe emotional distress. Rice v. Janovich, 109 Wn.2d 48, 61, 742 P.2d 1230 (1987). The defendant's conduct must have been `so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.' Grimsby v. Samson, 85 Wn.2d 52, 59, 530 P.2d 291, 77 A.L.R.3d 436 (1975) (emphasis omitted).
The record on appeal does not support a finding of outrageous conduct. The trial court properly dismissed this claim.
VII. NEGLIGENT HIRING, SUPERVISION, AND RETENTION
Jefferson claims that she was `subjected to multiple supervisors who discriminated and were unfit.' An employer can be liable for negligently supervising an employee. Herried v. Pierce County Pub. Transp. Benefit Auth. Corp., 90 Wn. App. 468, 475, 957 P.2d 767, review denied, 136 Wn.2d 1005 (1998). However, Jefferson's negligent supervision claim is foreclosed by her failure to establish a prima facie case on all her discrimination and tort claims. See Herried, 90 Wn. App. at 475 (no negligent hiring claim if plaintiff is unable to establish a prima facie case of discrimination). Since Jefferson has not produced proof that she was the subject of gender-based or race-based discrimination, she cannot claim that Boeing was negligent in supervising an employee who allegedly discriminated.
Affirmed.
WE CONCUR: COX, J., AGID, J.