IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
AUDRA WILSON, No. 84372-9-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION ARCHDIOCESEN HOUSING AUTHORITY, SHARONDA DUNCAN, JANE DOE DUNCAN,
Respondents.
DÍAZ, J. — Appellant Audra Wilson alleges that her former supervisor,
Sharonda Duncan, grabbed her buttock and, after Wilson rebuffed her, was
subsequently hostile and threatening, causing Wilson to resign. Wilson brought
claims of (1) hostile work environment and (2) retaliation against Duncan and her
former employer, the Archdiocesan Housing Authority (AHA), under the
Washington Law Against Discrimination (WLAD). Wilson now appeals the trial
court’s order granting summary judgment for respondents and dismissing all of
Wilson’s claims. We conclude that the trial court erred in granting summary
judgment because, when viewed in the light most favorable to Wilson, genuine
issues of material fact remain. A jury should decide whether the combination of
unsolicited sexual commentary, unwanted touching of a sexual body part, and later No. 84372-9-I/2
changes to Wilson’s work environment, after she told her supervisor not to touch
her, could constitute valid claims for a hostile work environment and retaliation.
Thus, we reverse and remand for further proceedings.
FACTS
The following recitation of the factual allegations is based on the record
before us, which includes Wilson’s statements at her deposition, declarations, and
other exhibits in support of or in opposition to AHA’s motion for summary judgment.
A. Events of 2018 to 2019
Wilson and Duncan became friends in or around 2012 when they both
worked at a local social service agency. At times, Duncan would make sexual
remarks toward Wilson, which Wilson alternatively described as either “normal
things that women do,” such as “[y]ou’re pretty,” or Duncan “hit[ting] on [her]” and
describing “sexual acts she will want to do to [her]” (“here and there”). 1
As to the latter, at her deposition, Wilson testified that Duncan would
describe various sexual acts, which from the context of her statements broadly,
she appeared to refer to what, in her understanding, lesbians would do. Wilson
described these topics as something Duncan would “always talk about” between
2011 and 2013. During her deposition, Wilson said she was “real uncomfortable”
discussing such acts. Again, Wilson distinguished between, on the one hand, e.g.,
1 At oral argument, counsel for AHA acknowledged that there was no evidence in
the record that Wilson initiated or solicited the latter types of comments. Wilson v. Archdiocesan Housing Authority et ano, No. 84372-9-I (April 18, 2023), at 16 min., 58 sec., through 17 min., 51 sec., video recording by TVW, Washington State’s Public Affairs Network, https://tvw.org/video/division-1-court-of-appeals- 2023041253/?eventID=2023041253. 2 No. 84372-9-I/3
back rubs “if your back is hurting” or comments made if “I’m feeling upset or
something” and, on the other hand, Duncan’s comments about touching her
breasts. In an exchange with opposing counsel, Duncan testified, “[t]he breast part
is totally different.”
Wilson added that this type of dialogue began “getting weird to [her]” when
Duncan referred to specific sexual acts. Wilson found the comments “weird”
enough she asked her sister and best friend for advice. Specifically, Wilson asked
her sister for advice about how to handle when “Sharonda . . . coming onto me . .
. I was kind of like wonder what that means and what that looks like.”
In terms of how she responded to Duncan’s comments, Wilson advised
Duncan she was “strictly dicky,” which Wilson purportedly used to convey her
heterosexuality, and Duncan knew that Wilson was “not gay.” But generally Wilson
would “laugh it off and say ew that’s nasty.” She explained that, because they
were friends, she did not take it seriously and was not offended.
About five years later, in 2018, Duncan recruited Wilson to work with her at
AHA. When Wilson began working at AHA in December 2018, Duncan and she
remained social friends, getting lunch during the workday and calling each other
after work. Wilson was employed as a case manager for AHA, in its Bakhita
Gardens residence, from December 6, 2018, to July 17, 2019. Duncan supervised
case managers and, at this stage of the litigation, we accept she was Wilson’s
supervisor. 2
2 The parties discuss another incident in their briefing, although the incident does
not appear to be part of the underlying claims or defenses. For this reason, we note it for further context, but do not rely on it for our analysis below. Namely, 3 No. 84372-9-I/4
In or around June 2019, Wilson requested Duncan’s assistance using a
“bed bug machine” in the laundry room. When Wilson bent down to pick up a
sheet, Duncan “grabbed” her buttock with one hand, which Wilson described as
occurring in a “fresh way like a ‘woo’ type of deal.” Wilson immediately grabbed
Duncan’s hand, held it “real tight,” and told her “don’t ever touch me like that.”
Duncan apologized, and Wilson ran out of the laundry room. Wilson testified that,
while Duncan may have hugged her or patted her on the back previously, Duncan
had never touched her with aggressiveness before, and it “startled” and “scared”
her. Duncan denies any encounter or touching occurred in the laundry room.
Shortly after the laundry room incident, Duncan offered Wilson a ride home
from work. During the car ride, Duncan told Wilson about a time when she used
to work with a “girlfriend” who “became aggressive” and Duncan “got her fired.”
Possibly in the same car ride, Duncan also mentioned that she “gets her cousin to
beat people’s ass” for her. Wilson inferred that Duncan told her these stories to
warn her she would face retaliation if she reported the laundry room incident.
Soon after, Wilson went on vacation and, when she returned, learned that
Duncan had recently hired someone Duncan described as her cousin on
Facebook. Wilson believes her relationship with Duncan changed further after that
hiring, testifying in her deposition that the situation “was really weird after I came
sometime in spring 2019, Duncan asked Wilson to “write up” another employee for something Wilson “didn’t see.” Wilson refused. After that, Wilson testified that Duncan became cooler and more distant, but not hostile. While Wilson “didn’t like how [Duncan’s] demeanor changed after [Wilson] wouldn’t write a statement against [that employee],” they discussed it and Duncan said they were “still cool.” 4 No. 84372-9-I/5
back from my vacation.” Wilson believed Duncan hired this cousin to take
Duncan’s position, so that Duncan could be promoted.
From that point forward, in the period between the laundry room incident
and when Wilson left AHA, she described escalating mistreatment by Duncan.
Wilson described “little stuff where other people wouldn’t catch it,” that Duncan did
to Wilson, such as how she treated her in meetings. According to Wilson, other
coworkers described observing the changed dynamic and encouraged Wilson to
report or document her interactions with Duncan. Wilson knew how the treatment
made her feel, but thought Duncan was just “having a bad day.”
During this time, Wilson could not receive the supervisory support she
needed from Duncan, including being unable to meet with Duncan. Wilson further
was denied authorization to attend trainings on client management and
administration. Wilson instead sought help from other coworkers during this time
to show her “how to do random stuff.”
On or about July 3, in a final “blow-up” meeting with multiple staff members
present, Wilson discussed a client with a challenging issue about whom she was
concerned. Wilson then suggested a possible approach to the issue. In the
meeting, Wilson testified that Duncan “attack[ed]” her, saying Wilson did not “know
her job,” did not “know what she was talking about,” and was “really trying to tear
[Wilson] down.” Wilson left the meeting in tears, at the time saying she felt belittled
and triggered, and that she may “just put in [her] resignation.” Wilson
acknowledged that she said she would resign. She described that decision as a
“fight or flight” situation.
5 No. 84372-9-I/6
Shortly after, Crystal Perine called Wilson back into the meeting, where
Duncan and Duncan’s cousin were present. Perine told Wilson that, if she wanted
to quit, she would accept Wilson’s resignation. Wilson responded that she was not
going to resign, that she would continue to work her job, and that she revoked her
resignation. Wilson testified that her supervisors “tried to run” with her resignation
and, stood around her in a corner, and told her she was going to resign.
On July 16, 2019, Wilson emailed a supervisory staff member at AHA
advising AHA she wished to continue in her position. Wilson explained that, when
she initially indicated she would resign, she did so “under distress” because
“Sharonda Duncan made [Wilson’s] working environment intolerable” due to
Duncan creating an “intimidating, offensive, and hostile work environment.”
In a letter subsequently mailed to Wilson on October 4, 2019, AHA stated
that it accepted Wilson’s verbal resignation offered on July 10, and her last day of
employment with AHA was July 18, 2019.
Just after leaving AHA, Wilson attended counseling and received
medication for around one year “as a result of” her termination.
B. Motion for Summary Judgment
On August 5, 2020, Wilson sued Duncan and AHA in King County Superior
Court. Wilson brought three claims: gender-based discrimination, 3 hostile work
environment, and retaliation under WLAD.
3 As confirmed at oral argument, Wilson does not appeal the standalone claim of
gender-based discrimination and, as such, we will not disturb that ruling. Wash. Ct. of Appeals oral argument, supra at 4 min., 24 sec. through 5 min., 3 sec. 6 No. 84372-9-I/7
AHA moved for summary judgment on July 1, 2022. On August 9, 2022,
the trial court granted summary judgment to AHA. In its order, the trial court held
that Wilson did not present a prima facie case of a hostile work environment
because (a) Plaintiff did “not testify” that the sexualized banter was unwelcome
and (b) the one incident of groping was not “sufficiently pervasive” to create an
abusive work environment. The trial court, citing Estevez v. Faculty Club of Univ.
of Wash., also held that Wilson’s retaliation claim failed because, even assuming
an adverse employment action was taken, Wilson did “not present[] evidence that
would allow a reasonable jury to find ‘a causal link between [Plaintiff’s] [protected]
activity and [Defendants’] adverse action.’” 129 Wn. App 774, 797, 120 P.3d 579
(2005)).
Wilson appeals and seeks attorney fees and costs.
ANALYSIS
Our review of the trial court’s order granting summary judgment is de novo,
and we engage in the same inquiry as the trial court. Marquis v. City of Spokane,
130 Wn.2d 97, 105, 922 P.2d 43 (1996). The inquiry on summary judgment
generally, as in WLAD claims specifically, is whether there is a genuine issue as
to any material fact and whether the moving party is entitled to judgment as a
matter of law. Id.; CR 59. “‘A material fact is one upon which the outcome of the
litigation depends.’” Walter Dorwin Teague Assocs., Inc. v. Dep’t of Revenue, 20
Wn. App. 2d 519, 524, 500 P.3d 190 (2021) (quoting Wash. Fed. v. Azure Chelan,
LLC, 195 Wn. App. 644, 652, 382 P.3d 20 (2016)). “We consider the evidence
7 No. 84372-9-I/8
and the reasonable inferences therefrom in a light most favorable to the nonmoving
party.” Marquis, 130 Wn.2d at 105.
“Sex discrimination in employment is prohibited by this state’s law against
discrimination. RCW 49.60 declares the right to be free from discrimination on the
basis of race, creed, color, national origin, sex, marital status, age or disability to
be a civil right.” DeWater v. State, 130 Wn.2d 128, 134, 921 P.2d 1059 (1996)
(citing RCW 49.60.010; RCW 49.60.030(1)).
WLAD is to be “construed liberally to effectuate its purpose of remedying
discrimination.” Gibson v. Costco Wholesale, Inc., 17 Wn. App. 2d 543, 556, 488
P.3d 869 (2021). This is so because “‘a plaintiff bringing a discrimination case in
Washington assumes the role of a private attorney general, vindicating a policy of
the highest priority.’” Jin Zhu v. N. Cent. Educ. Serv. Dist.-ESD 171, 189 Wn.2d
607, 613, 404 P.3d 504 (2017) (quoting Marquis, 130 Wn.2d at 109).
Tying these general principles together, summary judgment is “often
inappropriate” in “discrimination cases” because “WLAD ‘mandates liberal
construction.’” Frisino v. Seattle Sch. Dist. No. 1, 160 Wn. App. 765, 777, 249 P.3d
1044 (2011) (quoting Martini v. Boeing Co., 137 Wn.2d 357, 364, 971 P.2d 45
(1999) (citing RCW 49.60.020); see also Gamble v. City of Seattle, 6 Wn. App. 2d
883, 887-88, 431 P.3d 1091 (2018) (describing resolution at summary judgment
as “typically inappropriate”). In other words, summary judgment is “often
inappropriate” because the evidence “will generally contain reasonable but
competing inferences of both discrimination and nondiscrimination that must be
resolved by a jury.” Davis v. W. One Auto. Grp., 140 Wn. App. 449, 456, 166 P.3d
8 No. 84372-9-I/9
807 (2007). Summary judgment in WLAD claims is reserved for those times “when
the plaintiff fails to raise a genuine issue of fact on one or more prima facie
elements.” Johnson v. Chevron U.S.A., Inc., 159 Wn. App. 18, 27, 244 P.3d 438
(2010).
Because WLAD is modeled on the federal Title VII of the federal Civil Rights
Act, federal cases interpreting Title VII are persuasive authority. Lodis v. Corbis
Holdings, Inc., 172 Wn. App. 835, 849, 292 P.3d 779 (2013).
A. Hostile Work Environment
We conclude the trial court erred in granting summary judgment to AHA on
Wilson’s hostile work environment claim.
1. Law
Sexual harassment is a form of sex discrimination. Floeting v. Grp. Health
Coop., 192 Wn.2d 848, 853, 434 P.3d 39 (2019). Sexual harassment claims are
generally categorized as “quid pro quo harassment” claims or “hostile work
environment” claims. DeWater, 130 Wn.2d at 134 (quoting Payne v. Children’s
Home Society, 77 Wn. App. 507, 511, n. 2, 892 P.2d 1102 (1995)).
To establish a prima facie claim of a hostile work environment, the
employee must prove (1) she was subject to harassment which was unwelcome,
(2) the harassment was because of sex, (3) the harassment affected the terms or
conditions of employment, and (4) the harassment is imputed to the employer.
DeWater, 130 Wn.2d at 135 (citing Glasgow v. Georgia-Pac. Corp., 103 Wn.2d
401, 406-407, 693 P.2d 708 (1985)); see also Little v. Windermere Relocation,
9 No. 84372-9-I/10
Inc., 301 F.3d 958, 966 (9th Cir. 2002).
“To determine whether the harassment is such that it affects the conditions
of employment, we consider: the frequency and severity of the discriminatory
conduct; whether it is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an employee's work
performance.” Washington v. Boeing Co., 105 Wn. App. 1, 10, 19 P.3d 1041
(2000). This element is determined with regard to the totality of the
circumstances.” Antonius v. King County, 153 Wn.2d 256, 261, 103 P.3d 729
(2004) (citing Glasgow v. Ga–Pac. Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708
(1985)).
“‘[W]hether the plaintiff has established that she or he was subjected to a
hostile work environment, and whether the employer is liable for the harassment
that caused the environment’ presents ‘mixed questions of law and fact that we
review de novo.’” Christian v. Umpqua Bank, 984 F.3d 801, 808 (9th Cir. 2020)
(citing Little, 301 F.3d at 966). Viewing the evidence in the light most favorable to
the nonmoving party, “we must determine whether there are any genuine issues
of material fact and whether the [trial court] correctly applied the relevant
substantive law.” Id. (citing Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d
1027, 1033 (9th Cir. 2005)). Courts should “not weigh the evidence or determine
whether the employee’s allegations are true.” Davis v. Team Electric Co., 520 F.3d
1080, 1088 (9th Circ. 2008).
We review each element in turn.
2. Discussion
10 No. 84372-9-I/11
a. Whether the harassment was unwelcomed
“[T]o constitute harassment, the complained of conduct must be unwelcome
in the sense that the plaintiff-employee did not solicit or incite it, and in the further
sense that the employee regarded the conduct as undesirable or offensive.”
Glasgow, 103 Wn.2d at 406.
At issue is whether a reasonable jury might find that Duncan’s alleged
groping of Wilson’s buttock in the laundry room was unwelcome. As Wilson
testified at her deposition, as soon as Duncan did so, Wilson grabbed her hand
and said “don’t ever touch me like that again.” Wilson described that such contact
had never previously occurred between them, and the interaction made her feel
scared and upset. Such testimony, even though Duncan denies the contact
occurred, is enough to create an issue of material fact that the groping was
“undesirable or offensive.” Id.
Respondents argue in response that Wilson “participated in the playful
relationship and thus now cannot contend that this single incident was offensive .
. . as [Wilson] herself participated and solicited this kind of relationship.” There is
a yawning gap in respondents’ argument. Respondents cite to no case law holding
that sexualized banter between parties (what respondents characterize the
dialogue) -- even if at first “playful” or welcomed -- establishes as a matter of law
that the plaintiff thereby consented to or welcomed a later physical touching. When
a party fails to provide citation to support a legal argument, we assume counsel,
like the court, has found none. State v. Loos, 14 Wn. App. 2d 748, 758, 473 P.3d
1229 (2020). We strongly decline to make such case law. And again, because
11 No. 84372-9-I/12
Wilson expressly testified to objecting to the behavior, there is a question of fact
as to whether the contact was unwelcome, even if arguendo, the prior sexualized
so-called banter was “consensual,” as respondents argue.
There is, however, a question of material fact whether Wilson consented to
all the prior sexualized comments in the first place. While Wilson had testified to
having laughed off and not being offended by some comments, she distinguished
those comments and explained that other comments were “weird” and that she
was uncomfortable even repeating them at her deposition. Furthermore, as
counsel for Duncan acknowledged at oral argument, nothing in the record
suggests that Wilson initiated or solicited those latter types of comments, contrary
to respondents’ characterization in its briefing. Wilson v. Archdiocesan Housing
Authority et ano, No. 84372-9-I (April 18, 2023), at 16 min., 58 sec., through 17
min., 48 sec., video recording by TVW, Washington State’s Public Affairs Network,
https://tvw.org/video/division-1-court-of-appeals-
2023041253/?eventID=2023041253. When viewed in the light most favorable to
Wilson, those latter types of comment then were unwelcomed because they were
unsolicited, unincited and offensive. Glasgow, 103 Wn.2d at 406.
Finally, on this point, the time between when most of the sexualized
comments occurred (2013) and the groping occurred (2019) cuts in two ways,
when viewed in the light most favorable to Wilson, neither favorable to
respondents. Either the time period does not suggest that Wilson would have
provided consent in 2013 for actions in 2019, and as such, is legally irrelevant. Or,
the “weird” and “uncomfortable” comments continued into her employment at AHA,
12 No. 84372-9-I/13
which means it constitutes an independent type of unwelcome conduct. Id. at 406-
07 (examining both verbal and physical conduct as undesirable or offensive).
Ultimately, “the question whether particular conduct was indeed unwelcome
presents difficult problems of proof and turns largely on credibility determinations.”
Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68, 106 S. Ct. 2399, 91 L. Ed. 2d
49 (1986). To the extent that it weighed the evidence, ignored certain statements
Wilson made, and drew inferences in favor of AHA, the trial court erred because
such determinations are for a jury.
Therefore, Wilson has adduced sufficient factual support to make a prima
facie case that the groping in the laundry room was unwelcome, whether that
action stands alone or represented an escalation of a pattern of unwanted verbal
conduct.
b. Whether the harassment was because of sex
The second element of a prima facie case of hostile work environment,
“harassment because of sex,” can be established through the unwanted touching
of a sexual body part. Case law interpreting Title VII, which is persuasive, holds
that such conduct is prohibited regardless of whether the perpetrator and the victim
are of the same or different genders. Rene v. MGM Grand Hotel, Inc., 305 F.3d
1061, 1068 (9th Cir. 2002) (citing Oncale v. Sundowner Offshore Svcs., 523 U.S.
75, 79, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998)). Furthermore, a plaintiff-
employee’s (perceived or actual) sexual orientation neither provides nor precludes
a cause of action for sexual harassment. Id. at 1068.
Stated otherwise, unwanted physical touching targeting body parts “linked”
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to the victim’s sexuality “is inescapably ‘because of ... sex.’” Id. at 1066 (quoting
Doe v. City of Belleville, 119 F.3d 563, 580 (7th Cir.1997)). And, the touching of
the buttocks in particular can constitute sex-based harassment. Id. (citing as
patting buttocks cases Schmedding v. Tnemec Co., Inc., 187 F.3d 862, 865 (8th
Cir. 1999) and Jones v. Wesco Investments, Inc., 846 F.2d 1154, 1155 (8th Cir.
1988)). Contrary to respondents’ unsupported suggestion, a plaintiff need not
allege that a sexual organ was touched.
In Rene, although presenting a different fact pattern, at issue was a male
employee facing harassment by other male employees due to his sexual
orientation. Id. at 1063. The Ninth Circuit reversed the district court’s holding for
the defendant employer because the district court erred in finding no sex-based
harassment occurred because Rene was harassed by other men for being a gay
man. Id. at 1066. The Ninth Circuit held:
“The [Supreme] Court’s holding that offensive sexual touching in a same-sex workforce is actionable discrimination under Title VII necessarily means that discrimination can take place between members of the same sex, not merely between members of the opposite sex. Thus, [the plaintiff in Oncale] did not need to show that he was treated worse than members of the opposite sex. It was enough to show that he suffered discrimination in comparison to other men.”
Id. at 1067 (citing Oncale, 523 U.S. at 79).
Here, Wilson need not allege or establish Duncan’s romantic or sexual
interest in Wilson, but need only adduce facts that may convince a jury that Duncan
groped a sexual body part to establish the harassment was “because of sex.”
Rene, 305 F.3d 1068. She did so testify here. There is also nothing in the record
that suggests that Duncan did the same to, or otherwise treat Wilson the same as,
14 No. 84372-9-I/15
other women. Finally, contrary to respondents’ argument, there is no sweeping
“close friend” exception, or some de minimis exception, when it comes to the
unwelcome touching of a sexualized body parts, such as the buttocks. We again
decline to create one here.
“Therefore, a jury armed with ‘[c]ommon sense, and an appropriate
sensitivity to social context’ could reasonably conclude” the actions alleged here
could be because of sex. Fuller, 865 F.3d at 1168 (9th Cir. 2017) (citing Oncale,
523 U.S. at 82). As the court summed up in Fuller, “[i]t is up to a jury, not us, to
decide whether that plausible inference is the best one to draw from this record.”
Id.
c. Whether the harassment affected the terms of employment
Our next inquiry is whether there is a genuine issue of material fact as to
whether the groping (along with any prior or subsequent actions) affected the terms
and conditions of Wilson’s employment.
As a starting point, in determining whether there is a genuine issue of
material fact, we need not look only at the unwanted verbal comments and the
groping, but also the entire environment, or overall “ambience” of the workplace
behavior, in which Duncan operated.
For example, in Christian v. Umpqua Bank, Christian filed a Title VII claim
against her employer after she alleged the employer did not deter a bank customer
from continuing to stalk her at work and send her letters after she declined his
advances. Christian, 984 F.3d at 806-07. After requesting the customer be barred
from the bank multiple times and being rebuffed by a supervisor, Christian
15 No. 84372-9-I/16
transferred to another branch and eventually quit after advice from a medical
professional for managing her severe anxiety from the experience. Id. at 808.
The Ninth Circuit concluded the district court erred in isolating the stalking
Christian experienced (that occurred in two distinct time periods) and in finding
that, when so isolated, that the separate instances did not constitute severe and
pervasive harassment. Id. at 809-10. The Ninth Circuit explained, “[t]he real social
impact of workplace behavior often depends on a constellation of surrounding
circumstances, expectations, and relationships.” Id. (citing Oncale, 523 U.S. at
81-82). Moreover, the court explained, “what might be an innocuous occurrence
in some circumstances may, in the context of a pattern of discriminatory
harassment, take on an altogether different character, causing a worker to feel
demeaned, humiliated, or intimidated on account of her gender.” Id. at 810 (citing
Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1109 (9th Cir. 1998)). Finally, the
court held, “[w]e cannot say that a juror would not find that fear reasonable or the
resulting environment hostile. The district court’s overly narrow approach—which
ignored the reality ‘that a hostile work environment is ambient and persistent, and
that it continues to exist between overt manifestations’—was error.” Id. (quoting
Draper, 147 F.3d at 1108 n.1 (9th Cir. 1998)).
Here, like in Christian, we review the overall “ambience” of the workplace
that Duncan created, in the light most favorable to Wilson. In that light, Wilson
described not only a single incident of being groped in the laundry room, but (a),
before that, “weird” unsolicited, sexualized comments that she was uncomfortable
detailing at her deposition, and (b), after that, (i) thinly veiled threats of retaliatory
16 No. 84372-9-I/17
actions (as was done against another girlfriend), or even physical intimidation,
Duncan may take against Wilson; (ii) escalating mistreatment by Duncan, including
failures to communicate, to provide supervisory support and to authorize trainings;
(iii) all of which led to the final “blow up” meeting, where Duncan “attack[ed]” her,
causing Wilson to resign. Wilson testified that each was temporally and causally
related to her declining Duncan’s propositions.
Respondents counter that Wilson “engaged in a sexually playful relationship
with Duncan for years, where she solicited, incited, and participated in the ‘girly’
behavior,” and, as such, the single incident of groping “simply does not rise to the
level of severity required for a reasonable person to find in her favor.”
Respondents flatly state that Wilson’s “allegations are not so severe and pervasive
as to affect the terms and conditions of employment.” This is an assumption and
an “overly narrow approach,” which at this stage in the proceedings, we cannot
make. Christian, 984 F.3d at 810.
Instead, when viewed in its totality and the light most favorable to Wilson,
there is a question of fact for whether Wilson experienced severe and pervasive
harassment – again beginning with the sexualized commentary, continuing
through the groping, and ending with her forced termination – because she
rebuffed the advances.
Moreover, even if we were to take a narrower view of the record, “a single
‘incident’ of harassment . . . can support a claim of hostile work environment
because the ‘frequency of the discriminatory conduct’ is only one factor in the
analysis.” Little, 301 F.3d at 967. Furthermore, the duration of unwanted touching
17 No. 84372-9-I/18
or other harassment is also not dispositive. “It is not how long the sexual
innuendos, slurs, verbal assaults, or obnoxious course of conduct lasts. The
offensiveness of the individual actions complained of is also a factor to be
considered in determining whether such actions are pervasive.” Carrero v. New
York City Hous. Auth., 890 F.2d 569, 578 (2d Cir. 1989) (superseded by statute on
other grounds as stated in Olszewski, v. Bloomberg L.P., No. 96-3393, 1999 WL
182596 (S.D.N.Y. 1999)).
Thus, respondents’ argument that, “[w]hen the relationship escalated to a
place in which she no longer wanted to partake in it, the conduct stopped,” is
unavailing. If a reasonable jury could find the one incident of groping severe
enough to alter Wilson’s work environment, then this element has been met. This
is particularly true, given that Duncan was Wilson’s supervisor. Dominguez-Curry,
424 F.3d at 1039 (finding that courts “have repeatedly held that a single
discriminatory comment by a plaintiff’s supervisor or decisionmaker is sufficient to
preclude summary judgment for the employer”). 4
Furthermore, if there is a genuine factual dispute about the frequency or
severity of conduct, that creates a genuine issue of material fact, when viewed in
the light most favorable to the plaintiff. Dominguez-Curry, 424 F.3d at 1035. In
that case, the district court erred in granting summary judgment to the defendant
4 At oral argument, counsel for the respondents contested that Duncan was actually Wilson’s supervisor. Wash. Ct. of Appeals oral argument, supra, at 13 min., 2 sec., through 15 min., 22 sec. This was the first time AHA contested such a fact and, as such, we will not consider such a dilatory argument. RAP 12.1(a). We note also that the only evidence in the record suggests Duncan was Wilson’s supervisor and that AHA itself referred to Duncan as Wilson’s supervisor on the first page of their brief. At a minimum, it is an issue of fact for the jury to resolve. 18 No. 84372-9-I/19
employer because the district court disregarded testimony from the plaintiff
describing graphic, sexually explicit jokes as “everyday jokes.” Id. at 1035. The
Ninth Circuit held that dismissal of such allegations and determining the plaintiff’s
credibility were the province of the factfinder at trial, not a district court on summary
judgment. Id. at 1035-36.
Likewise, as in this case, “[w]hen severity is questionable, ‘it is more
appropriate to leave the assessment to the fact-finder than for the court to decide
the case on summary judgment.’” Fried v. Wynn Las Vegas, LLC, 18 F.4th 643,
648 (9th Cir. 2021) (quoting Davis, 520 F.3d at 1096). Thus, the trial court erred
on this ground.
Finally, Respondents do not contest the fourth element, whether Duncan’s
harassment may imputed to AHA. For these reasons, we conclude the trial court
erred in granting summary judgment to AHA on Wilson’s hostile work environment
claim.
B. Retaliation
We conclude that Wilson made a prima facie claim of retaliation under
WLAD sufficient to preclude summary judgment.
The WLAD protects employees engaged in statutorily protected activity
from retaliation by their employer. RCW 49.60.210; Lodis, 172 Wn. App. at 847.
Specifically, “[i]t 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 [the WLAD].” RCW 49.60.210(1). A claim of retaliation
19 No. 84372-9-I/20
under WLAD thus requires establishing three elements: (1) the employee engaged
in a statutorily protected activity, (2) the employer took some adverse employment
action against the employee, and (3) there is a causal link between the protected
activity and the adverse action. Lodis, 172 Wn. App. at 846. We discuss each in
turn.
a. Protected activity
Again, an employee engages in a statutorily protected activity under WLAD
when they oppose “any practices forbidden by” the act. Currier v. Northland
Servs., Inc., 182 Wn. App. 733, 742, 332 P.3d 1006 (2014) (quoting Coville v.
Cobarc Servs., Inc., 73 Wn. App. 433, 440, 869 P.2d 1103 (1994)). To show that
they are engaged in a statutorily protected activity, a plaintiff “need only prove that
[their opposition] went to conduct that was at least arguably a violation of the law,
not that [their] opposition activity was to behavior that would actually violate the
law against discrimination.” Estevez, 129 Wn. App. at 798 (quoting Kahn v.
Salerno, 90 Wn. App. 110, 130, 951 P.2d 321 (1998)).
When viewed in the light most favorable to Wilson, Duncan’s groping of
Wilson’s buttock in the laundry room “at least arguably” violated WLAD. Estevez,
129 Wn. App. at 798. In turn, the protected activity that Wilson engaged in was
telling Duncan after that incident never to touch her again. That allegedly forceful
statement was her “opposition” to the forbidden act. Currier, 182 Wn. App. at 742;
see also Lodis, 172 Wn. App. at 848 (holding that the “term ‘oppose,’ undefined in
the statute, carries is ordinary meaning: ‘to confront with hard or searching
20 No. 84372-9-I/21
questions or objections’ and ‘to offer resistance to, contend against, or forcefully
withstand.’”) (quoting W EBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1583
(2002).
Respondents argue that, while complaints about discriminatory conduct are
statutorily protected activities, Wilson “never complained” at staff meetings,
investigatory meetings, or by email. By this, it appears respondents mean that
Wilson needed to file a formal complaint or advise persons other than her direct
supervisor (Duncan) about Duncan’s actions. Respondents provide no case law
in support of this position. Loos, 14 Wn. App. 2d at 758 (holding that when a party
fails to provide citation to support a legal argument, we assume counsel, like the
court, has found none).
More substantively, as this court explained a decade ago, “the United States
Supreme Court recently interpreted the opposition clause in Title VII very broadly.”
Lodis 172 Wn. App. at 850 (citing Crawford v. Metro. Gov't of Nashville & Davidson
County, Tenn., 555 U.S. 271, 276, 129 S. Ct. 846, 172 L. Ed. 2d 650 (2009)). As
the Court described in Crawford, “[t]he employer argued the opposition clause did
not cover Crawford, because she had not instigated or initiated a complaint. The
Court rejected this theory.” Id. at 851 (citing Crawford, 555 U.S. at 276).
We conclude that the Respondents’ suggested reading of “opposition” is too
constrained and goes against the legislature’s directive “that the provisions of the
WLAD ‘shall be construed liberally for the accomplishment of the purposes
thereof.’” Currier, 182 Wn. App. at 741-42 (citing RCW 49.60.020). This liberal
understanding of the term “oppose” is particularly true here where the person to
21 No. 84372-9-I/22
whom Wilson lodged her objection was indeed her direct supervisor, whom Wilson
asked to stop an action that at least arguably violated WLAD. Wilson thereby also
placed AHA on notice of her opposition, i.e., the protected activity.
We hold that, when viewing the evidence in the light most favorable to
Wilson, there is sufficient evidence in the record for this first element of a claim of
retaliation.
b. Adverse action
“Adverse employment action means a tangible change in employment
status, such as ‘hiring, firing, failing to promote, reassignment with significantly
different responsibilities, or a decision causing a significant change in benefits.’”
Crownover v. State ex rel. Dep’t of Transp., 165 Wn. App. 131, 148, 265 P.3d 971,
980 (2011) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S. Ct.
2257, 141 L. Ed. 2d 633 (1998)). “If shown, constructive discharge is an adverse
employment action.” Jordan v. Clark, 847 F.2d 1368, 1377 n. 10 (9th Cir. 1988).
Wilson claims the adverse action AHA took was constructive discharge. An
employee is constructively discharged when (1) the employer deliberately makes
an employee’s working conditions intolerable; (2) thereby forcing the employee to
resign; (3) a reasonable person in an employee’s shoes would have felt compelled
to resign; and (4) the action harmed the employee. Sneed v. Barna, 80 Wn. App.
843, 849, 912 P.2d 1035 (1996).
“Generally, whether working conditions have risen to ‘intolerable’ level, [as
required for constructive discharge,] is a factual question for jury.” Id. at 849-50
(citing Sanchez v. City of Santa Ana, 915 F.2d 424, 431 (9th Cir. 1990)).
22 No. 84372-9-I/23
Here, as to the first element, Wilson testified that the working conditions
became intolerable because, as reviewed previously, Duncan made thinly veiled
threats of a both professional and physical safety nature, refused to give Wilson
supervisory assistance with her day-to-day work and professional development,
and made slights in front of others, leading to an all-out personal attack. Contrary
to respondents’ characterization, it was only by way of summary that Wilson said
“it was bad.” For these reasons we conclude that there is a question of fact that a
jury should evaluate whether such conditions, if shown, are intolerable.
As to the second element, Wilson testified that she felt forced to resign upon
the alleged treatment by Duncan in the staff meeting, to the point where she claims
she said in that moment, in tears, she may as well resign. Wilson explained that,
in this meeting, she felt like Duncan was “trying to trigger me, talking me down . . .
talking to me like I am stupid . . . just making me look dumb in front of the whole
coworkers . . . It was bad. I had to literally walk out crying.” When called back into
a meeting, Wilson said that she did not mean to resign, but the staff would not
accept the verbal withdrawal.
Based on this testimony, again in the light most favorable to her, we
conclude that there is a genuine question of material fact as to whether Wilson felt
forced to resign and wrongly was not allowed to rescind her resignation. If we were
to agree with respondents’ argument that the working conditions could not have
been “so intolerable” if Wilson asked to continue to work, we would not be taking
the facts in the light most favorable to Wilson.
Respondents do not contest the third or fourth elements of constructive
23 No. 84372-9-I/24
discharge. Thus, we hold that, when viewing the evidence in the light most
favorable to Wilson, there is sufficient evidence in the record for a reasonable jury
to find that an adverse action occurred.
c. Causal link
Again, the third element for a claim of retaliation is whether a jury could find
a causal link between the protected activity (Wilson telling Duncan not to touch
her) and subsequent adverse action (here, a constructive discharge).
“‘Because employers rarely will reveal they are motivated by retaliation,
plaintiffs ordinarily must resort to circumstantial evidence to demonstrate
retaliatory purpose.’” Currier, 182 Wn. App. at 746-47 (quoting Estevez, 129 Wn.
App. at 799). At the summary judgment stage, the plaintiff’s burden is one of
production, not persuasion. Cornwell, 192 Wn.2d at 412. Thus, “to avoid summary
judgment on causation, the employee must show only that a reasonable jury could
find that retaliation was a substantial factor in the adverse employment decision.”
Id. at 412-13.
“Employees may rely on the following facts to show this: (1) the employee
took a protected action, (2) the employer had knowledge of the action, and (3) the
employee was subjected to an adverse employment action.” Id. at 413 (citing
Wilmot, 118 Wn.2d 46, 69, 821 P.2d 18 (1991)).
In Cornwell, Cornwell’s supervisor terminated her shortly after learning of a
lawsuit Cornwell filed against a prior supervisor at the same workplace. Id. at 415-
416. There, our Supreme Court held that, given the proximity in time between the
knowledge and termination, it was “a reasonable inference that these actions were
24 No. 84372-9-I/25
in retaliation for Cornwell’s previous lawsuit.” Id. (citing Raad v. Fairbanks North
Star Borough School Dist., 323 F.3d 1185, 1197 (2003) (“That an employer’s
actions were caused by an employee’s engagement in protected activities may be
inferred from proximity in time between the protected action and the allegedly
retaliatory employment decision.”) and Wilmot, 118 Wn.2d at 69 (“‘[p]roximity in
time between the claim and the firing is a typical beginning point’” for proving
retaliation) (alteration in quoting 1 LARSON, supra, § 6.05[5], at 6-51)).
Here, again, Wilson testified to escalating negative changes to her work at
AHA after Duncan groped her in the laundry room and Wilson told her not to touch
her again. Viewing the record in the light most favorable to Wilson, Duncan, as
her supervisor, obviously would have been aware that the alleged incident and
objection occurred. Then, shortly after this incident, Duncan made the thinly veiled
threat that she “got someone fired,” could get someone beaten up, and began
(when viewed in the light most favorable to Wilson) saying things to “trigger” Wilson
and demean her in front of her coworkers in meetings. The adverse employment
action suffered by Wilson was the constructive discharge, reviewed above.
This alleged constructive discharge occurred shortly after, within one or two
months, after Wilson opposed Duncan’s advances and, thus, it was “a reasonable
inference that these actions were in retaliation for” Wilson’s opposition to the
alleged groping. Cornwell, 192 Wn.2d at 415-416.
Therefore, Wilson “presented the necessary circumstantial evidence to
show that her [opposition to Duncan’s touching] was a substantial motivating factor
25 No. 84372-9-I/26
in her” constructive discharge. Id. at 416.
In turn, because respondents do not contest the final element of her
retaliation claim, 5 a prima facie case of retaliation was made and it was error to
dismiss it. 6
C. Attorney Fees and Costs
RAP 18.1 permits recovery of attorney fees and costs on review if the
applicable law grants that right. RAP 18.1(a). As a result, if a party requests fees
under this rule, the appellate court may grant them. Id. WLAD grants parties the
right to attorney fees and costs on appeal. Frisino, 160 Wn. App. at 786. If a party
is successful on appeal, the appellate court may direct on remand the trial court to
award fees and the costs of the appeal, should the same party prevail in the lower
court. Id.
Thus, we direct that the trial court grant Wilson an award of her fees and
costs for this appeal, if and only if she ultimately prevails on her claims.
CONCLUSION
5 We note that Wilson alleged that she was forced to pay for counseling and
medication for over a year just after the incident occurred. 6 Normally, where a “plaintiff establishes a prima facie case [of retaliation], then
the defendant may rebut the claim by presenting evidence of a legitimate nondiscriminatory reason for the adverse action. This shifts the burden back to the plaintiff to prove that the employer’s reason is pretextual. The trier of fact must then ‘choose between inferences when the record contains reasonable but competing inferences of both discriminatory and nondiscriminatory actions.’” Currier, 182 Wn. App. at 743 (quoting Burchfiel v. Boeing Corp., 149 Wn. App. 468, 483, 205 P.3d 145 (2009)). We need not reach whether respondents rebutted the prima facie case, as respondents’ entire argument below and on appeal revolved around Wilson’s alleged failure to make her prima facie case. 26 No. 84372-9-I/27
We reverse the dismissal of Wilson’s hostile work environment claims and
remand this matter to the superior court for further proceedings.
WE CONCUR: