Opinion
No. 51563-2-I.
Filed: April 5, 2004.
Appeal from Superior Court of King County. Docket No. 01-2-26639-0. Judgment or order under review. Date filed: 12/06/2002. Judge signing: Hon. Joan E DuBuque.
Counsel for Appellant(s), Marja M Starczewski, Attorney at Law, 1544 NW Market St, Seattle, WA 98107.
Anthony Martin Urie, Attorney at Law, 1544 NW Market St, Seattle, WA 98107.
Counsel for Respondent(s), Gail M. Luhn, Attorney at Law, 701 5th Ave Ste 2500, Seattle, WA 98104-7022.
In this action for a hostile work environment and employer retaliation, all but one of the employees' claims lack sufficient support to withstand summary judgment or are barred by the statute of limitations. Accordingly, the superior court's order dismissing the action is affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.
Loomis moves to strike a federal district court order attached to appellants' original opening brief. That brief was returned for corrections, however, and the order was not appended to the brief ultimately accepted by the court. It is therefore unnecessary to strike the order since it is not before the court. Appellants move to strike Loomis' brief, portions of the clerk's papers, and evidence relating to settlement offers on appeal. The settlement offer evidence is stricken. Appellants' motion is otherwise denied.
FACTS
Charles Loomis, Inc. designs and manufactures lighting fixtures for commercial applications. The fixtures are assembled and finished by employees in Loomis' shop. Harvey Majors began working in Loomis' shop in March 1997. Robert Whitlock and his sister Sabra were hired in June of 1998.
In July 1998, after one month of employment, Sabra and Whitlock told their supervisor Steve Johnson that foreman/supervisor Clyde Bullo had subjected Sabra to inappropriate racial and sexual remarks and gestures. Sabra then quit and Whitlock took a leave of absence. An investigation confirmed the allegations and, on October 2, 1998, Loomis fired Bullo.
On October 7, 1998, Whitlock returned from his leave of absence. He quit his job in February 1999. Loomis fired Majors in October 1999.
On September 19, 2001, Whitlock and Majors filed this action against Loomis for a hostile work environment, retaliation, and constructive discharge.
Both men alleged that during their employment, Clyde Bullo verbally and physically harassed them based on their sex, that a supervisor condoned the conduct, and that, following Bullo's firing, Loomis retaliated against them. Bullo allegedly would come up behind men when they were bent over and perform a simulated sex act, referred to as `roo-roo,' or stick his thumb or an object in the anus area of the men's pants. One employee stated that during `roo-roo,' Bullo would `grab your jeans and start acting like he was going to town on you, having sex with you, ram you and [he] would yell and scream like he's riding a cowboy[.]' Bullo would tell employees `You're going to get roo-roo if you don't get your job done[.]' Bullo would also approach male employees, grab them by the testicles, and say something like `Are you having a good morning.' The evidence indicates that these acts were a frequent, if not daily, occurrence.
Loomis moved to dismiss all of the claims under CR 12(b)(6) or CR 56. The superior court granted the motion. On appeal, Majors and Whitlock have abandoned their constructive discharge claims.
DECISION
We review a trial court's grant of summary judgment de novo, engaging in the same inquiry as the trial court and viewing the facts and the reasonable inferences from those facts in the light most favorable to the nonmoving party. Summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." CR 56(c).
Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982).
I.
Appellants first contend the superior court erred in dismissing their claims for a hostile work environment. To establish such a claim, an employee must demonstrate (1) offensive and unwelcome conduct that (2) occurred because of sex or gender, (3) affected the terms or conditions of employment, and (4) can be imputed to the employer. The evidence submitted by Majors and Whitlock below created fact questions on the first and third elements. The second and fourth elements are also satisfied but require some discussion.
Washington v. Boeing Co., 105 Wn. App. 1, 10, 19 P.3d 1041 (2000); Sangster v. Albertson's, Inc., 99 Wn. App. 156, 161, 991 P.2d 674 (2000).
To satisfy the second element, appellants had to produce evidence supporting a reasonable inference that their gender was the motivating factor for Bullo's harassing conduct. If Bullo treated men and women the same way, then his conduct, while potentially actionable on some other theory, was not discrimination and does not support a hostile work environment claim. The evidence showed that Bullo had harassed women as well as men. But there was also evidence that the nature of the harassment differed significantly depending on the victim's gender. Specifically, while there was evidence that Bullo had touched Sabra's buttocks, there was evidence that his harassment of women was primarily verbal and did not involve the physical acts that are the focus of Whitlock's and Majors' suit. There are fact questions, then, as to whether the harassment was gender based.
Sangster, 99 Wn. App. at 161; see Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998) (the test "is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed.").
See Doe v. Department of Transportation, 85 Wn. App. 143, 149-50, 931 P.2d 196 (1997); Pasqua v. Metropolitan Life Ins. Co., 101 F.3d 514, 517 (7th Cir. 1996); Henson v. City of Dundee, 682 F.2d 897, 904 (11th Cir. 1982).
See Quick v. Donaldson Co., Inc., 90 F.3d 1372, 1378 (8th Cir. 1996) (evidence that members of one sex were the primary targets of harassment is sufficient to show that conduct was gender based for purposes of summary judgment; the test is whether the treatment of one sex was worse than the treatment of the other); Steiner v. Showboat Operating Co., 25 F.3d 1459, 1463-64 (9th Cir. 1994) (noting that while defendant harassed both men and women, the harassment differed depending on gender).
The fourth element — i.e. that the harassment can be imputed to the employer — has been the focus of recent U.S. Supreme Court cases. In Burlington Indus., Inc. v. Ellerth and Faragher v. City of Boca Raton, the Court held that a presumption of employer liability arises when, as here, the person creating the hostile work environment is a supervisor. The presumption can be rebutted if the employer establishes that (1) the employer exercised reasonable care to prevent and correct promptly any harassing behavior, and (2) the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise. The defense is unavailable if the `harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.'
524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998).
524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998).
Sangster, 99 Wn. App. at 165 (citing Burlington, 524 U.S. at 765).
Sangster, 99 Wn. App. at 165 (quoting Burlington, 524 U.S. at 765).
Loomis contends it proved this defense as a matter of law because it had an anti-harassment policy in place and Majors and Whitlock never reported Bullo's harassment to anyone. It is undisputed that Whitlock accompanied his sister Sabra when she reported Bullo's harassment to Steve Johnson, and that Majors was interviewed as part of the investigation into Sabra's complaint. While this demonstrates that Loomis reacted to complaints, the record is unclear as to whether a formal policy existed, and whether employees knew about it, during the period of Bullo's alleged harassment. No policy appears in the record, and there is evidence suggesting that there was no formal policy or harassment training until after Bullo was fired.
Compare Sangster, 99 Wn. App. at 165-66 (employer asserting affirmative defense provided sufficient evidence of policy prohibiting harassment where there was a written policy in the employee handbook and policy was effectuated by hotline number, periodic distribution of notices to employees, and training sessions for store directors).
In addition, Steve Evans alleged that he reported Bullo's conduct to Steve Johnson in 1995, and that Johnson had seen Bullo's `roo-roo' behavior many times. He also stated that when Bullo was fired, Loomis management told him they had heard allegations about Bullo before but believed they were fabricated to get rid of Bullo. This evidence, together with the absence of evidence of a written policy during the period in question, creates fact questions as to whether Loomis exercised reasonable care in preventing and promptly correcting harassing behavior.
Fact questions also exist as to whether Whitlock and Majors `unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise.' Loomis asserts that Whitlock and Majors never complained of being harassed prior to Bullo's firing. But Majors stated in his deposition that he reported the harassment to Steve Johnson several months before Bullo was fired. Steve Evans corroborated that assertion, stating that Bullo was fired in part because Majors complained about being harassed by Bullo. And Whitlock stated in his deposition that he complained to Steve Johnson and Chuck Loomis about `Clyde [Bullo] touching me. . . . Sticking rebar and metal pipes between my legs. Slapping me on the ass. Doing suggestions, like giving me a blow job.' He also stated in interrogatory answers that he reported the harassment to Clyde Bullo, Steve Johnson, and Chuck Loomis.
In its brief below, Loomis argued that Majors' deposition contradicted his answer to an interrogatory asking for names of people he reported the harassment to. In that answer, Majors said: `No one. We were told by Clyde Steve Johnson, over and over again, if we went over their heads, we would be fired.' A party may not create an issue of fact by contradicting their own previous testimony without explanation. Marshall v. AC S, Inc., 56 Wn. App. 181, 185, 782 P.2d 1107 (1989). Majors' deposition and interrogatory are not necessarily inconsistent, however, because the latter can be read as implying that he complained about the harassment to Bullo and Johnson.
In conclusion, on this record, it cannot be said that Loomis is entitled to judgment as a matter of law based on its affirmative defense. Loomis argues in the alternative that the hostile work environment claims are time-barred. Actions brought under RCW 49.60 are subject to a three-year statute of limitations. We conclude that Whitlock's claim is barred by the statute, but Majors' is not.
It is undisputed that Whitlock filed suit more than three years after Clyde Bullo's last alleged act of harassment toward him. Whitlock argues, however, that the continuing violation doctrine extends the limitations period in this case. In National Railroad Passenger Corp. v. Morgan, the United States Supreme Court addressed the continuing violation doctrine in the context of a hostile work environment claim, stating:
536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002).
A charge alleging a hostile work environment claim . . . will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period.
Morgan, 536 U.S. at 122.
Because our discrimination laws substantially parallel Title VII of the Civil Rights Act, 42 U.S.C. § 2000(e) et seq., we may look to federal law for nonbinding guidance. We find Morgan persuasive and follow it here. Under Morgan, when a motion for summary judgment seeks to establish a statute of limitations defense as a matter of law, the motion should be denied if there is evidence sufficient to prove that the acts complained of are part of a single actionable hostile work environment and that one or more acts occurred within the statutory time period. In this case, Whitlock alleged that Clyde Bullo had physically harassed him in the manner described above, and had verbally harassed him by allegedly calling him a `fucking faggot.' All of this conduct occurred more than three years before Whitlock filed his suit. Whitlock also alleged, however, that Steve Johnson was aware of Bullo's conduct and took no action, and that Johnson called Whitlock a `faggot' shortly after Bullo was fired. Whitlock contends a jury could conclude that Johnson's epithet, together with undue criticism Whitlock received from Johnson after Bullo's firing, were a continuation of a hostile work environment created by Bullo and Johnson. We disagree.
Xieng v. Peoples Nat'l Bank, 120 Wn.2d 512, 518, 844 P.2d 389 (1993).
See Morgan, 536 U.S. at 120. We note that prior to Morgan, courts held that the continuing violation exception was unavailable if the untimely acts should have triggered the employee's awareness of, and duty to assert, his or her rights. Milligan v. Thompson, 90 Wn. App. 586, 595, 953 P.2d 112 (1998). Under that rule, a plaintiff could sue for acts that occurred outside of the limitations period only if it would have been unreasonable to expect the plaintiff to sue before the statute ran on that conduct. Morgan appears to have eliminated this consideration in a claim alleging a hostile work environment. `It is precisely because the entire hostile work environment encompasses a single unlawful employment practice that we do not hold, as have some of the Circuits, that the plaintiff may not base a suit on individual acts that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on such conduct.' Morgan, 536 U.S. at 117-18.
Whitlock's argument overlooks several crucial facts. First, his work environment changed substantially when Bullo was fired. Bullo's offensive conduct, including his remarks, had ceased. Second, the criticism Whitlock received after Bullo's firing was unlike the prior conduct and was not gender based. And unlike Bullo's remarks, Johnson's alleged `faggot' remark, though reprehensible, was not accompanied by conduct suggesting the remark was based on Whitlock's sex — i.e. directed at him because he is a man. In short, Johnson's remark and the context in which it was made do not bear sufficient similarity to the time-barred conduct to be considered a continuation of it. Whitlock's hostile work environment claim is therefore time-barred and was properly dismissed.
As to Majors, Loomis argues that he failed to provide any evidence of acts of harassment that are not time-barred. Loomis concedes that any acts occurring during the 13-day period immediately preceding Bullo's firing are not time-barred. Although Majors did not specifically address this time period in his deposition, he stated that Bullo `would always be rubbing, poking or touching me.' He further stated that . . . he'd walk up and ask you, he'd say, `Are you having a good morning' and reach up, and he'd grab your nuts. And he'd be less than two inches away from your face rubbing his whiskers up and down on your face. You'd be bent over picking something up, and he'd walk over and act like he was trying to screw you in the butt. He'd poke you in the butt with things. He'd constantly whenever you were doing something walk over and try to stick his thumb up your butt or something.
(Emphasis added.)
(Emphasis added.)
Similarly, Steve Evans stated in his declaration that Bullo sexually harassed several men, including Majors, and that the acts `were a very common event, occurring almost daily.' Viewed in a light most favorable to Majors, this evidence supports an inference that Bullo's conduct continued through the 13-day period and did not cease until he was fired. There are fact questions, then, as to whether Majors' hostile work environment claim is time-barred.
II.
Appellants next contend the court erred in dismissing their claims for retaliation. We disagree. Under RCW 49.60.210(1):
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, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter.
To establish a prima facie case of retaliation, a plaintiff must show (1) he engaged in a statutorily protected activity, (2) the employer took some adverse employment action, and (3) retaliation was a substantial factor behind the adverse action. To constitute actionable `adverse employment action,' the action must be reasonably likely to deter an employee from engaging in the protected activity. Adverse employment actions include demotions, disadvantageous transfers or assignments, refusals to promote, unwarranted negative job evaluations, and toleration of harassment by other employees.
Boeing Co., 105 Wn. App. at 14.
Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000).
Ray, 217 F.3d at 1241 (citing Wyatt v. City of Boston, 35 F.3d 13, 15-16 (1st Cir. 1994)).
Whitlock failed to create a fact question as to whether Loomis took adverse employment action against him. He alleged that shortly after his sister's complaint and Bullo's firing, he was given `menial jobs,' was unduly criticized regarding his work, and was called stupid and, on one occasion, a `faggot' by Steve Johnson. But he nowhere describes the menial jobs he was demoted to, he concedes that his wages and other aspects of his job remained the same, and he provides virtually no evidence, other than his own conclusory and self-serving allegations, that his work performance was good and undeserving of criticism. An employee resisting summary judgment cannot rely on opinion or conclusory statements. In the absence of more detailed allegations regarding the alleged demotion and undue criticism, Whitlock's evidence of an adverse action was insufficient to survive summary judgment and his retaliation claim was properly dismissed. Majors' retaliation claim was properly dismissed as well. Although the first two factors are satisfied, the third factor — i.e. that retaliation was a substantial factor behind the adverse actions — is not. In its motion for summary judgment, Loomis argued that it terminated Majors for nonretaliatory reasons. The burden then shifted to Majors to show an issue of fact as to whether those reasons were pretextual. An employee carries that burden if he shows that the employer's reasons have no basis in fact or, even if based in fact, the employer was not motivated by those reasons. In his declaration, Steve Evans stated in part that he was . . . aware that upper level management wanted to fire [Majors] and was using others within the company to make less than accurate allegations, which when compounded could cause him to be fired. I was the individual that actually fired him. I did not feel that he deserved to be fired as nothing that I was told by management, or personally knew, was truly correct. Most of the facts were twisted out of context. That the people that made statements against Majors did so at the insistence of Steve Johnson, they were his close friends.
Grimwood v. University of Puget Sound, Inc., 110 Wn.2d 355, 359-60, 753 P.2d 517 (1988).
Once the employee establishes a prima facie case of retaliation, the burden shifts to the employer to demonstrate a nonretaliatory reason for the adverse action. Renz v. Spokane Eye Clinic, 114 Wn. App. 611, 618, 60 P.3d 106 (2002). If the employer meets that burden, then the burden shifts back to the employee to show that the employer's justification was pretextual. Renz, 114 Wn. App. at 619.
Renz, 114 Wn. App. at 619.
Based upon my observations and personal knowledge, Harvey Joseph Majors was fired primarily because he had complained about being harassed by Clyde Bullo and had complained about the severe and disgusting verbal abuse by Clyde Bullo upon Sabra Whitlock. . . .
While this declaration tends to show that the motivation for Loomis' action was retaliation, it is insufficient to carry Majors' burden. Evans' declaration is conclusory and fails to reveal how he was aware of management's motivation, or what his personal knowledge was based on.
Majors also attempts to show that Loomis' reasons for firing him were not legitimate. In its motion for summary judgment, Loomis documented incidents of sexual and racial harassment by Majors, as well as threats to blow up another employee's car and to kill a lunch truck driver. He also disengaged the fuel line on a forklift, causing it to stop on railroad tracks behind the shop. In response to Loomis' showing, Majors claimed that he was terminated because of an innocuous remark about another employee's religious faith. He did not directly challenge Loomis' alleged reasons for terminating him. Instead, he simply referred to them as `innuendo' and relied on Evans' declaration, quoted above. This was insufficient to carry his burden.
In conclusion, Majors failed to demonstrate an issue of fact as to whether Loomis' reasons for terminating him were a pretext. His retaliation claim was properly dismissed.
III.
Both parties request attorney fees, costs, and sanctions on various grounds. With the exception of appellants' request for sanctions for Loomis' recitation of settlement offers on appeal, the requests are denied. Counsel for Loomis is ordered to pay $500 in sanctions to appellants' counsel.
Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.
SCHINDLER and APPELWICK, JJ., concurs.