Herried v. Pierce County Public Transportation Benefit Authority Corp.

957 P.2d 767, 90 Wash. App. 468, 1998 Wash. App. LEXIS 301
Court of Appeals of Washington·Decided February 27, 1998·No. No. 20843-1-II·Published·Cited by 15 cases

Opinion

Armstrong, J.

Pauline Herried, a training instructor with Pierce Transit, sued her employer, alleging that she was sexually harassed by a fellow employee. She also alleged that Pierce Transit was liable for negligently supervising the fellow employee. The trial court granted summary judgment for the employer, ruling that Herried failed to show that she was harassed because of her sex; the court also ruled that Herried’s negligent supervision claim was barred by the Industrial Insurance Act. We affirm.

Facts

Herried and Ed Washington, both employees of Pierce Transit, started working together as instructors in March 1989. In August 1989, Herried and a fellow instructor, Sharon Olsen, complained to their supervisor that Washington was shirking work, and that Washington was defensive when asked to help with office work. Herried made no complaints that Washington was sexually harassing her.

Pierce Transit hired a consultant, Ken Schultz, to resolve the department’s personality conflicts. After Schultz met with the instructors individually and as a group, the department, according to Herried, “quieted down a little bit.”

In late 1990, conflicts began again. Herried complained to her new manager, Steve Nunan, that she felt Washington [471]*471was sexually harassing her. Nunan interviewed the entire current staff and a former instructor. Nunan met individually with department members and discussed problems in the performance of each. Nunan explained that Washington’s rude and unprofessional acts did not constitute sexual harassment. Nunan also discussed with Herried complaints that had been made about her own unprofessional behavior. Finally, Nunan listed “expectations” for the entire department, including a demand that all unprofessional behaviors cease.

Pierce Transit also brought in another consultant, Pablo Stanfield, who interviewed and conducted mediation sessions with department personnel. But these ended when Herried refused to participate because the whole department was not involved.

There were no further complaints until July 7, 1992. On this date, Washington bumped Herried with his body as she was standing in front of a filing cabinet. Herried drafted an incident report, and Nunan conducted interviews the following week with both Herried and Washington. Washington denied any knowledge of the accident.

On July 22 & 23, Marcie Ruskin, a “fair employment practices consultant,” was brought in to address issues of race discrimination alleged by Washington. Ruskin found no racial discrimination, but suggested an immediate formal investigation into Herried’s assault allegation. This investigation, which included tape-recorded interviews with 22 Pierce Transit employees, was conducted by Mary Ann Jackson (Director of Operations and Nunan’s boss) and Willy Gorrissen (Director of Finance and Administration). The investigation resulted in an internal memorandum, which concluded that Washington had intentionally assaulted Herried. As a result, Washington was demoted, removed from the department, and warned that any further infractions would result in termination.

In October 1993, a year later, Herried encountered Washington in a hallway in Pierce Transit’s main administration building. Washington refused to move aside as they [472]*472passed, forcing her to press against the lockers. The two did not touch or exchange words.

Six days later, Herried reported the incident to Nunan. Herried also had a delayed emotional stress reaction to her situation and took three and one-half months medical leave.

Herried also described an incident in which a car stopped quickly behind her in the employee parking lot and followed her closely until she left the lot. Herried believed that Washington was the driver.

Herried received workers’ compensation for all of the medical treatment and psychological counseling for injuries associated with the July 7, 1992, assault.

The Superior Court of Pierce County granted summary judgment for Pierce Transit on Herried’s sexual harassment and negligent supervision claims. The court awarded prevailing party costs under RCW 4.84.010 and 4.84.090. These costs included the court reporter’s appearance fee for Herried’s deposition.

Analysis

We will affirm a summary judgment 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. And we must consider all facts and reasonable inferences in the light most favorable to the nonmoving party. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982); Seven Gables Corp. v. MGM/UA Entertainment Co., 106 Wn.2d 1, 12-13, 721 P.2d 1 (1986).

A. Sexual Harassment Claims

Herried first argues that the trial court erred in dismissing her sexual harassment claim under RCW 49.60.030. To establish a work environment sexual harassment claim, the employee must prove that: (1) the harassment was unwelcome, (2) the harassment was because of sex, (3) the harassment affected the terms or conditions of [473]*473employment, 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).

1. Gender Related

Under the second element of the Glasgow test, conduct is actionable as sexual harassment only if it is because of sex. Glasgow, 103 Wn.2d at 406. This requires that the gender of the plaintiff-employee be the motivating factor for harassment. Id. Here, Herried failed to establish that her gender was the motivating factor for Washington’s conduct. She points to Washington’s intimidating behavior, his lifting weights at his desk, and his speaking to other instructors in a very threatening manner, particularly one of the female instructors, Krista Sheehy.

The record, however, demonstrates that Washington’s hostility and his intimidating conduct were directed at other fellow employees, both male and female. Sheehy noted that “Washington’s angry behavior and intimidating style was the same whether he was interacting with men or women.” Herried herself never perceived any of Washington’s actions to be sexual in nature. For example, she did not hear him tell dirty jokes, or say or do anything sexually suggestive. Furthermore, other employees never saw Washington do anything sexual in nature. An employee’s conduct that is hostile and intimidating, without more, is not actionable as sexual harassment. See, e.g., Miller v. Aluminum Co., 679 F. Supp. 495, 502 (W.D. Pa.) (“Hostile behavior that does not bespeak an unlawful motive cannot support a hostile work environment claim.”), aff’d without opinion, 856 F.2d 184 (3d Cir. 1988).

In Payne v. Children’s Home Soc’y of Wash., Inc., 77 Wn. App. 507,

Herried v. Pierce County Public Transportation Benefit Authority Corp., 957 P.2d 767, 90 Wash. App. 468, 1998 Wash. App. LEXIS 301 (Wash. Ct. App. 1998).

957 P.2d 767 (Herried v. Pierce County Public Transportation Benefit Authority Corp.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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