Opinion
No. 60275-6-I.
May 5, 2008.
Appeal from a judgment of the Superior Court for Snohomish County, No. 04-2-09255-6, Gerald L. Knight, J., entered August 14, 2007.
Affirmed by unpublished opinion per Dwyer, J., concurred in by Cox and Lau, JJ.
Cynthia Pedersen appeals from the summary judgment dismissal of her lawsuit against the Snohomish County Center for Battered Women (CBW) and Margaret Bruland, CBW's executive director. Pedersen alleges that Bruland, her immediate supervisor, created a hostile work environment in violation of the employment provisions of the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW, by making racist and homophobic comments about groups of people to which Pedersen does not belong (Pedersen is heterosexual and white). Pedersen additionally alleges that Bruland unlawfully retaliated against her for complaining both about Bruland's discriminatory comments and Bruland's purported violations of Washington's wage and hour laws. According to Pedersen, Bruland's unlawful retaliation created intolerable working conditions that forced Pedersen to resign. The trial court dismissed Pedersen's lawsuit in its entirety upon finding that she "did not meet her burden of proof with regard to the hostile work environment and retaliation claims." Clerk's Papers (CP) at 3. Because Pedersen's submissions to the trial court failed to make the required prima facie showing for any of her claims, we affirm.
Facts
Pedersen served as the Administrative Services Director at CBW when Bruland was hired as its new executive director in March 2002. Unfortunately, Bruland's management style quickly caused her relationship with various members of CBW's staff, including Pedersen, to deteriorate.
Pedersen alleges that Bruland made various racially intolerant statements. On one occasion, Bruland described a community senior center employee of Asian descent as an "Oriental man," stated that "you can't just have services that cater only to the Orientals," and stated that "they're trying to take our money away from us" because the senior center was competing against CBW for a particular funding grant. CP at 174. Bruland also once recounted to a group of staff members a story about how members of the Tulalip Tribes would come to her uncle's car lot, buy cars, and then fail to make payments on them. Bruland also "questioned why CBW needed to have hair care products for African American hair at the shelter." CP at 175. Finally, during a meeting that was not attended by Pedersen, Bruland argued that CBW did not need the services of a diversity trainer, stating: "Oh yes, we spend lots of money on diversity training. We have to meet the requirements, you know. . . . God forbid we ever be allowed to provide training on the white culture and the ways we're mistreated and discriminated against." CP at 218.
Pedersen also alleges that Bruland made homophobic comments. According to Pedersen, Bruland once asked aloud why the domestic violence movement seems to attract a disproportionate number of lesbian women, and commented that she did not understand why "they" (the lesbian women) "all had tattoos and dressed so poorly." CP at 174. On another occasion, Bruland stated that her rationale for transferring an employee from the position of Volunteer Coordinator to that of Women's Advocate was related to how poorly the employee (a lesbian woman) dressed, which was "not the image [CBW] wanted the Volunteer Coordinator to present to the community at large." CP at 175. Finally, Bruland noted the sexual orientation of two former executive directors of CBW prior to rehiring one of them as CBW's Shelter Manager. Pedersen mentioned to Bruland that she believed that these comments were inappropriate.
In an unrelated incident, Bruland withheld an employee's pay because the employee had not properly requested sick leave. Pedersen and Bruland later attended a seminar on employment law together. At the seminar, Pedersen asked whether it was legal to withhold an employee's pay for failing to properly complete leave request forms. The attorneys conducting the seminar responded that it was generally not lawful to do so. Pedersen does not allege that Bruland again withheld any employee's pay for failure to properly complete leave request forms, although she does allege that she had to remind Bruland not to do so.
Approximately a year after Bruland was hired, CBW's board of directors circulated an employee survey soliciting feedback on Bruland's performance as executive director. Responses to the survey were to be anonymous. Pedersen appended two and a half typed pages to her completed survey criticizing various aspects of Bruland's performance as executive director. Pedersen wrote that she was "concerned that Margaret is violating State of Washington Labor Laws in several ways," and described in great detail the circumstances under which Bruland withheld the employee's pay prior to attending the employment law seminar. CP at 188. Pedersen also wrote that Bruland had "made many classist, racist, and homophobic comments" to her. CP at 189. Pedersen also criticized Bruland for not finalizing a job description for her position, which she specifically identified as "Administrative Services Director." CP at 188.
According to Pedersen, after the board of directors received the staff responses to the survey, Bruland began treating her worse than she normally did. Specifically, Pedersen contends that Bruland, "for the most part, stopped speaking" with her and began communicating with her primarily through notes. CP at 246. Pedersen also alleges that Bruland gave her unfriendly looks and spoke to her in an unfriendly voice, asking Pedersen questions with respect to her work like "Why haven't you done this?" and "When is this going to be done?" CP at 245. According to Pedersen, she "started to feel that [she] was being left out of discussions and not given all of the information" that she needed. CP at 244. She also stated, "I felt that I was being set up to do something wrong so that I would be terminated," and that Bruland "started having meetings with the other managers that didn't include me." CP at 244. Pedersen does not allege that she was verbally warned of any pending discipline, that any negative comments were placed in her personnel file, that her hours were increased or reduced, that her pay was cut or withheld, or that she was demoted or otherwise reassigned.
In spite of the fact that Pedersen was never disciplined, the discord at CBW caused her physical stress. She lost sleep and experienced headaches and anxiety.
Pedersen walked off the job on September 26, 2003. She and Bruland had exchanged several drafts of an application for a funding grant. Several times Bruland had returned the grant application to Pedersen, asking her to fill in a blank requesting the "units of service" that CBW would agree to provide in exchange for the funding. CP at 181. Each time, Pedersen had returned the draft application to Bruland having made some requested changes, but without having filled in the units of service. Pedersen believed that it exceeded her authority to determine the units of service. CP at 181. Apparently Bruland disagreed, because the day the grant application was due, Bruland once again returned it to Pedersen with a note attached reading "NO UNITS OF SERVICE" and instructing Pedersen to complete the application. CP at 181. Pedersen experienced what she described as a "panic anxiety attack." CP at 182. She then left work, leaving a note stating that she had gone home sick. She did not call Bruland or anyone else to explain that the grant application had not been completed and sent out.
Pedersen did not come back to work. She stayed on CBW's payroll until her accumulated medical leave was exhausted, at which point she resigned. Following her resignation, she filed this action in the Snohomish County Superior Court. After discovery, CBW and Bruland moved for summary judgment. The trial court granted the motion, ruling:
Defendant's motion for summary judgment is hereby granted in its entirety. The court finds that plaintiff did not meet her burden of proof with regard to the hostile work environment and retaliation claims and therefore those claims are dismissed. Additionally, the court believes that plaintiff did not attempt to rectify the situation by other means but rather filed a lawsuit. This court is to uphold the law for the State of Washington and plaintiff did not provide adequate proof that any law was violated.
Pedersen's complaint also alleged assorted wage and hour violations by CBW. She does not appeal the dismissal of those claims.
Standard of Review
When reviewing an order of summary judgment, the appellate court engages in the same inquiry as the trial court. Clarke v. Office of the Attorney General, 133 Wn. App. 767, 784, 138 P.3d 144 (2006) (citing Grundy v. Thurston County, 155 Wn.2d 1, 6, 117 P.3d 1089 (2005)). "Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact, and that the moving party is entitled to judgment as a matter of law." Clarke, 133 Wn. App. at 784-85 (citing CR 56(c)). Summary judgment is rarely appropriate in discrimination cases. Sangster v. Albertson's, Inc., 99 Wn. App. 156, 160, 991 P.2d 674 (2000). But to defeat summary judgment, the employee "must do more than express an opinion or make conclusory statements;" he or she "must establish specific and material facts to support each element of her prima facie case." Sangster, 99 Wn. App. at 160.
Hostile Work Environment
Pedersen first contends that the trial court erred by dismissing her hostile work environment claim. According to Pedersen, her submissions to the trial court created a genuine issue of material fact with respect to whether Bruland's allegedly discriminatory comments created a hostile work environment in violation of the WLAD. Bruland and CBW respond that summary judgment was proper because Pedersen is not a member of any of the protected classes that were the subject of Bruland's comments. There is legitimate authority on both sides of the issue of whether a plaintiff may assert a claim under the WLAD even though not a member of the class at which the discriminatory conduct is directed. But this issue is not squarely before us, and thus we do not decide it. This is so because Pedersen's submissions fail to demonstrate that Bruland's allegedly discriminatory comments in any way affected the terms and conditions of Pedersen's employment. Accordingly, Pedersen fails to make the required prima facie showing that she was subjected to a hostile work environment.
Compare Trafficante v. Metro. Life Ins. Co., 409 U.S. 205, 208-12, 93 S. Ct. 364, 34 L. Ed. 2d 415 (1972) (white apartment tenant could maintain claim based on housing discrimination directed at non-white applicants, due to loss of cross-racial association) and Waters v. Heublein, Inc., 547 F.2d 466, 469 (9th Cir. 1976) (white plaintiff had standing to assert that her employer discriminated against black and Spanish-surnamed applicants in hiring procedures; case "logically indistinguishable from Trafficante") with Patee v. Pac. Nw. Bell Tel. Co., 803 F.2d 476, 478-79 (9th Cir. 1986) (male employees had no basis for wage discrimination claim based on shared job classification with discriminated-against women; distinguishing Waters) and Sedlacek v. Hillis, 145 Wn.2d 379, 382, 36 P.3d 1014 (2001) (no associational standing for non-disabled plaintiff under the WLAD).
In order to withstand summary judgment on a discriminatory hostile work environment claim, a plaintiff must make a prima facie showing that (1) the harassment was unwelcome, (2) the harassment was because of a protected classification, (3) the harassment affected the terms or conditions of employment, and (4) the harassment can be imputed to the employer. Washington v. Boeing Co., 105 Wn. App. 1, 12-13, 19 P.3d 1041 (2000).
Washington addressed hostile work environment claims based upon both sexual and racial discrimination. Washington, 105 Wn. App. at 9-10, 12-13. In this case, Pedersen additionally contends that the comments at issue discriminated on the basis of sexual orientation, a classification that the legislature recently granted protected status. See Laws of 2006, ch. 4. Bruland and CBW do not dispute that the 2006 amendments to the WLAD prohibiting discrimination on the basis of sexual orientation are effective here.
Whether allegedly discriminatory conduct is sufficiently severe and pervasive to affect the terms and conditions of employment is a question of fact. Adams v. Able Bldg. Supply, Inc., 114 Wn. App. 291, 296, 57 P.3d 280 (2002) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993)). "But a civil rights code is not a `general civility code.'" Adams, 114 Wn. App. at 297 (footnote and internal quotation marks omitted) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998)). As such, a grant of summary judgment dismissing a hostile work environment claim is appropriate if the plaintiff's submissions demonstrate nothing more than "[c]asual, isolated or trivial manifestations of a discriminatory environment" because such manifestations do not affect the conditions of employment "to a sufficiently significant degree to violate the law." Washington, 105 Wn. App. at 10 (citing Faragher, 524 U.S. at 788; Glasgow v. Ga.-Pac. Corp., 103 Wn.2d 401, 406, 693 P.2d 708 (1985)).
Bruland's allegedly discriminatory comments were not demonstrated to be sufficiently severe and pervasive so as to alter the terms and conditions of Pedersen's employment. In essence, Pedersen's allegations are: that Bruland made comments in her presence describing an Asian man as "Oriental," that Bruland once relayed a story about her uncle's difficulty in recovering car payments from members of a federally designated Indian tribe, that Bruland once expressed dissatisfaction with the dress habits of lesbian women generally, that Bruland once questioned whether it was necessary for CBW to supply separate hair care products for African American women, and that Bruland once commented on the sexual orientation of a lesbian woman who she later hired for a management position at CBW. Pedersen's additional allegations concern remarks that were made outside of her presence.
While Bruland's statements were boorish and may indicate that she harbors racist and homophobic views, "they were isolated occurrences that did not unreasonably interfere" with Pedersen's work performance. Washington, 105 Wn. App. at 11. Indeed, Pedersen does not credibly allege that they did; rather, the actual hostile conduct that she complains of — Bruland's unfriendly looks and tone of voice, her occasional exclusion of Pedersen from management meetings, and her demands that Pedersen complete a funding grant application — constituted interactions entirely separate from any allegedly discriminatory conduct by Bruland. We affirm the trial court's ruling that Pedersen "did not meet her burden of proof with regard to the hostile work environment" claim. CP at 3.
Retaliation
Pedersen next contends that Bruland and CBW retaliated against her for engaging in the protected conduct of complaining about Bruland's allegedly discriminatory statements and Bruland's purported wage and hour law violations. According to Pedersen, her submissions to the trial court demonstrate a genuine issue of material fact as to whether Bruland's actions toward her constituted unlawful retaliation and, thus, that the trial court erred by dismissing her retaliation claims on summary judgment. Because Pedersen has not demonstrated that Bruland or CBW actually took any adverse employment action against her, however, we affirm the dismissal of Pedersen's retaliation claims.
Pedersen asserts two separate retaliation claims — one alleging retaliation based upon her complaints to CBW's board of directors concerning Bruland's allegedly discriminatory comments, and one alleging retaliation based upon her complaints to CBW's board of directors concerning Bruland's alleged wage and hour law violations. Because these claims may be resolved on the same basis, we address them jointly.
In Washington, it is unlawful for an employer "to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden" by the WLAD. RCW 49.60.210(1). Employees who are retaliated against for complaining of wage and hour law violations likewise may have a cause of action against their employer. See RCW 49.46.100; Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 232-33, 685 P.2d 1081 (1984).
In order to maintain an action for unlawful workplace retaliation, Pedersen was required to show (1) that she engaged in statutorily protected activity, (2) that Bruland or CBW took some adverse employment action against her, and (3) that retaliation was a substantial factor behind the adverse employment action. Washington, 105 Wn. App. at 14. In a recent U.S. Supreme Court decision examining retaliation in an action brought pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.A. §§ 2000e- 2000e-17, the Court held that, in order to constitute an adverse employment action, an employer's conduct in response to a plaintiff's protected activity "must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge" of unlawful conduct by the employer. Burlington N. Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 2409, 165 L. Ed. 2d 345 (2006). But this objective standard is one of " material adversity" and the reactions must be those of a " reasonable employee." White, 126 S. Ct. at 2415. "[P]etty slights, minor annoyances, and simple lack of good manners will not create such deterrence." White, 126 S. Ct. at 2415.
Here, the allegedly retaliatory conduct by Bruland consists of precisely the type of petty slights, minor annoyances, and simple lack of good manners that the U.S. Supreme Court stated would be insufficient to support a claim for unlawful retaliation. Bruland never disciplined Pedersen in any way. She never threatened Pedersen with discipline. Pedersen's personnel file contains no negative work evaluations. Pedersen's allegation that Bruland denied her vacation requests following her submission of her survey response is disproved by the trial court record, which demonstrates that her vacation requests were actually granted by Bruland. The conduct that Pedersen alleges was retaliatory, rather, consisted of Bruland asking when certain projects would be finished in an unfriendly voice, of not inviting Pedersen to certain meetings, and of requesting that Pedersen fill in certain information in a grant application. While these actions may have given Pedersen "the sense . . . that a case was being made" against her, CP at 245, a subjective sense of anticipation that some future disciplinary action may occur does not constitute an actual adverse employment action sufficient to overcome an employer's motion for summary judgment. We affirm the trial court's ruling that Pedersen "did not meet her burden of proof with regard to the . . . retaliation claims." CP at 3.
Constructive Discharge
Finally, Pedersen contends that her resignation from her job actually constituted her unlawful constructive discharge. A claim for constructive discharge in violation of public policy requires both that a clear public policy has been violated and that a reasonable person in the plaintiff's position would have been forced to resign. Because Pedersen's pleadings failed to sufficiently show that either of these circumstances occurred, we conclude that the trial court correctly dismissed her constructive discharge claims.
"To establish constructive discharge, the employee must show: (1) a deliberate act by the employer that made [her] working conditions so intolerable that a reasonable person would have felt compelled to resign; and (2) that . . . she resigned because of the conditions and not for some other reason." Washington, 105 Wn. App. at 15 (footnote omitted). Although it is a question of fact as to whether conditions were sufficiently intolerable that a reasonable person in the plaintiff's position would have resigned, "[a] resignation is presumed to be voluntary, and the employee must introduce evidence to rebut that presumption." Washington, 105 Wn. App. at 16. Where the plaintiff's submissions are such that "reasonable minds could reach but one conclusion" as to whether the resignation was voluntary, the issue may be decided as a matter of law. Michelsen v. Boeing Co., 63 Wn. App. 917, 920, 826 P.2d 214 (1991). Further, regardless of whether the plaintiff establishes that a reasonable person in his or her position would have felt compelled to resign, there is no claim for constructive discharge unless actual discharge would have been unlawful. Snyder v. Med. Serv. Corp. of E. Wash., 145 Wn.2d 233, 238, 35 P.3d 1158 (2001).
In this case, Pedersen's submissions to the trial court fail to show either that a reasonable person in her position would have felt compelled to resign or that her actual discharge would have violated any public policy. Although Pedersen alleges that Bruland became increasingly hostile to her after she submitted her survey evaluation of Bruland to the CBW board of directors, Pedersen's own pleadings, at most, purport to show that Bruland's demeanor became less friendly and that she stopped speaking to Pedersen unless necessary. Pedersen's own pleadings also show that the terms and conditions of her job were never altered and that she was never so much as verbally reprimanded, much less subjected to harassment that would force a reasonable person in her position to resign.
Further, Pedersen did not submit to the trial court any deposition testimony, affidavit, or any other evidence whatsoever beyond her own conclusory assertion that Bruland ever actually saw any of the survey results. Bruland, on the other hand, provided sworn statements of members of CBW's board of directors to the contrary. Accordingly, Pedersen failed to show that Bruland's conduct was in fact retaliatory and thus violative of any clear public policy.
Affirmed.