Keesha Knutson v. Wenatchee School District

• Court: Court of Appeals of Washington
• Decided: July 21, 2015
• Docket: 32540-7
• Status: Unpublished

Opinion

FILED JULY 21, 2015

In the Office of the Clerk of Court

WA State Court of Appeals, Division III

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DIVISION THREE

KEESHA KNUTSON, ) No. 32540-7-III ) Appellant, ) ) v. ) UNPUBLISHED OPINION ) WENATCHEE SCHOOL DISTRICT )

#246, a Washington school district, )

)

Respondent. )

LA WRENCE-BERREY, J. - Keesha Knutson, the fonner director of childcare

programs for the Wenatchee School District, sued the school district for a hostile work

environment based on gender, retaliation for reporting a hostile work environment, and

violation of her due process rights. She alleged her harasser was Les Vandervort, the

school district's chief financial officer, who served as Ms. Knutson's direct supervisor for

most of her employment. The trial court granted the school district summary judgment

on all claims and dismissed Ms. Knutson's complaint with prejudice. Ms. Knutson

appeals the hostile work environment and retaliation claim dismissals, contending the No. 32540-7-III Knutson v. Wenatchee Sch. Dist.

trial court erred in concluding that certain acts occurred outside the statute of limitations.

She also claims that there are genuine issues of material fact regarding her hostile work

environment and retaliation claims. We conclude that summary judgment dismissal was

appropriate and affirm.

FACTS

Keesha Knutson was the director of childcare programs for the Wenatchee School

District. In this position, she oversaw the school district's after-school day care program,

the Westside Early Learning Center for preschoolers, and the summer camp day care

program. The school district terminated Ms. Knutson's employment on June 30, 2011,

when it eliminated the position of director of childcare programs.

During her employment at the school district, Ms. Knutson received positive

performance reviews. In each of her first three years of employment, the reviews stated

she exceeded all expectations. In her July 19,2005 performance evaluation, her

supervisor, Mr. Vandervort, wrote, "'Keesha, you're great to work with and I appreciate

you.'" Clerk's Papers (CP) at 5. In Ms. Knutson's September 16,2008 performance

evaluation, Mr. Vandervort complimented her '" strong work ethic and helpful

management style [that] model the characteristics critical to developing an effective child

care team.'" CP at 5 (alteration in original). According to her June 29,2010

performance evaluation, the last evaluation, Ms. Knutson performed'" satisfactory' "

No. 32540· 7·III

Knutson v. Wenatchee Sch. Dist.

work. CP at 5.

A. Ms. Knutson's and Mr. Vandervort's pre-October 2008 working relationship

Ms. Knutson and Mr. Vandervort enjoyed a warm work friendship until October

2008. The two conversed about their respective personal lives hnd shared confidences.

Mr. Vandervort flirted with her and sent flirtatious e-mails.Ms. Knutson testified that

school district Human Resources Director Steve Cole knew of the flirtation before

December 2008.

At a 2006 school district conference in Tacoma, Ms. Knutson sat alone at night in

her hotel room watching a television show. Mr. Vandervort came to her room to watch

the show. According to Ms. Knutson, she did not invite him. Mr. Vandervort claims she

invited him. The television show ended at 9 p.m., but Mr. Vandervort stayed an

additional 5 to 10 minutes. He spoke to Ms. Knutson about his marriage and personal

life. Ms. Knutson participated in the conversation. She did not find the conversation

offensive. She was uncertain as to whether to characterize her reaction to the

conversation as one of discomfort. Ms. Knutson did not know Mr. Vandervort well and

did not know how to respond to his presence. After 5 to 10 minutes, Ms. Knutson stated

she was tired and needed to go to bed. Mr. Vandervort left the room. Ms. Knutson did

not complain about this incident to the school district administration. She was worried

about rumors because she and Mr. Vandervort both had spouses.

No. 32540-7-III

During work and in his office, Mr. Vandervort spoke to Ms. Knutson about an

HBO program, Cathouse. The conversation occurred between 2005 and 2007. Ms.

Knutson lacked knowledge of the program. In her deposition, she recalled few of the

details of this conversation. Mr. Vandervort explained that the show centered on the

Bunny Ranch, a house of prostitution, and he stated that his favorite girls on the show

were Sunset and Summer. He lightheartedly told her that being the owner of the Bunny

Ranch would be a perfect job. In her deposition, Ms. Knutson testified she was not

offended by the conversation. However, in an affidavit, Ms. Knutson claimed that she

considered the remarks odd and that she was uncomfortable with the conversation. She

did not report the conversation to the school district administration. Ms. Knutson likely

mentioned the conversation to some female coworkers.

Ms. Knutson separated from her ex-husband in May 2007, and she informed Mr.

Vandervort of the separation. Shortly after the separation, Mr. Vandervort telephoned

Ms. Knutson to ask her how she was doing. During this conservation, Mr. Vandervort

shared information that he had had an affair with another woman during the time that he

and his former wife had experienced marital difficulties. Ms. Knutson did not report this

telephone call to the school district administration.

On multiple occasions, Mr. Vandervort invited Ms. Knutson to dance at the

district office. Mr. Vandervort taught line dancing at the school district for employees'

recreation. Ms. Knutson knew line dancing, and Mr. Vandervort asked her to help teach.

While in his school district office, Mr. Vandervort asked Ms. Knutson a couple times if

she could teach him some line dancing moves. She declined. When she did not appear at

the classes, Mr. Vandervort emphasized that she should attend the class. Ms. Knutson

did not report the conversations about line dancing because she was office friends with

Mr. Vandervort. During her deposition, she admitted that she did not file a complaint

because she had nothing to complain about.

On one occasion in 2006 or 2007, Ms. Knutson and her sister saw Mr. Vandervort

at Costco. Ms. Knutson noticed Mr. Vandervort staring at her breasts. Ms. Knutson's

sister later stated that Mr. Vandervort could not get his eyes "'off your boobs.'" CP at

144. Ms. Knutson did not report the incident to anyone at the school district before her

employment ended. She stated she had no reason to report the incident.

On several occasions, Mr. Vandervort told Ms. Knutson that ifshe wished to talk

to someone, she could speak with him at any time. He offered to listen as a work friend.

As a genuine expression of friendship, Mr. Vandervort told Ms. Knutson, '" If there's

anything you need, I'd do anything for you.'" CP at 155. Mr. Vandervort recorded

music CDs (compact disks) for Ms. Knutson. Ms. Knutson did not know ifhe recorded

CDs for others. Ms. Knutson stated that she viewed this action as a kind gesture and did

not complain about this conduct.

No. 32540-7-III Knutson v. Wenatchee Sch. Dist.

In March 2008, Mr. Vandervort offered to loan Ms. Knutson money to complete a

Spanish class needed to obtain a bachelor's degree. Ms. Knutson considered the offer

inappropriate and did not want to be indebted to her supervisor. She was not offended,

but she was uncomfortable and told him so. In the September 2008 performance

evaluation, Mr. Vandervort stated that Ms. Knutson needed to complete her bachelor's

degree. When Ms. Knutson objected to this entry in her performance evaluation, Mr.

Vandervort reminded her that he had offered to pay for the schooling.

In June 2008, Ms. Knutson came to the school district office on a day off. She

wore shorts and a tank top with a scooped neckline. Mr. Vandervort later informed her

that another employee had complained about her dress. Ms. Knutson expressed

frustration to Mr. Vandervort that the complaining party did not know the full

circumstances. Mr. Vandervort rejoined, '" I don't know. I kinda like your cleavage.'"

CP at 148. Ms. Knutson considered the remark to be a light-hearted statement. She was

not offended because the two were workplace friends who joked. Mr. Vandervort denied

uttering the remark.

As a result of the June 2008 complaint about Ms. Knutson's dress, Mr.

Vandervort's September 2008 performance evaluation of Ms. Knutson included the

remark, '" As a role model, you set the standard for appropriate dress.'" CP at 150. Ms.

Knutson asked Mr. Vandervort ifhe had placed that comment in her evaluation because

of the June incident, and he said yes. CP at 151. Ms. Knutson had never before received

complaints about her dress. Ms. Knutson asked Mr. Vandervort ifhe had put the remark

in the performance evaluation so no one could complain anymore. Mr. Vandervort

laughed and said in a flirtatious manner, "'Well.'" CP at 153. Ms. Knutson did not

complain about this incident to the administration. The overall performance evaluation

given by Mr. Vandervort in September 2008 was positive.

B. Ms. Knutson's and Mr. Vandervort's post-October 2008 working relationship

Ms. Knutson divorced her husband. She testified that she began dating Russ

Waterman, a school district employee in October 2008. Around that time, Mr.

Vandervort called Ms. Knutson into his office and said he had heard she was dating Mr.

Waterman. Mr. Vandervort asked if Ms. Knutson thought the dating relationship was a

smart idea, to which Ms. Knutson replied, '" What does that mean? Do you know

something I should know?''' CP at 126. Mr. Vandervort looked at her and performed a

familiar gesture of extending his hand and shaking his head. Ms. Knutson asked, '" If

you know something, tell me.'" CP at 126. Mr. Vandervort just looked at Ms. Knutson.

Mr. Knutson said, '" If that's all, I'm going to go." CP at 126. She left Mr. Vandervort's

office.

According to Ms. Knutson, the hostile work environment imposed by Mr.

Vandervort started after the October 2008 interaction about Mr. Waterman. In her

No. 32540-7-II1 Knutson v. Wenatchee Sch. Dist.

deposition, she stated the relationship "changed 100 percent." CP at 161. The rapport

changed from friendly to cold and aloof, and Ms. Knutson stated that she received a cold

shoulder thereafter. Mr. Vandervort refused to answer Ms. Knutson's job questions,

particularly queries about the budget. After October 2008, Ms. Knutson did not consider

herself friends with Mr. Vandervort. He was no longer flirtatious with her. Mr.

Vandervort stopped sitting with her at monthly leadership meetings. Previously, the two

always sat together. Ms. Knutson did not ask Mr. Vandervort why he no longer sat next

to her, since the two no longer spoke to each other.

A series of three consecutive meetings on December 16, 2008 punctuated the

souring relationship between Ms. Knutson and Mr. Vandervort. The first meeting

convened in Mr. Vandervort's office. Attending the meeting were Ms. Knutson, Mr.

Vandervort, Mr. Cole, and Lisa Turner, the district's human resources manager. Mr.

Vandervort informed Ms. Knutson of the meeting and indicated the subject would be

staffing issues.

During the first December 16 meeting, Mr. Vandervort "yelled" at Ms. Knutson

and directed her not to call the out-of-school program "school age care." CP at Ill. He

insisted on the title "daycare." CP at 96. He informed Ms. Knutson that her calling the

program "school age care" caused confusion. CP at 99. Mr. Vandervort knew that Ms.

Knutson wanted the program to be educational in nature, but he relegated the program to

No. 32540·7·II1 Knutson v. Wenatchee Sch. Dist.

day care. Ms. Knutson does not dispute that Mr. Vandervort held authority to direct her

to call the program a "daycare" program. CP at 98. She notes, however, that all of the

school district written handbooks used the term "school age care." CP at 99.

During this first December meeting, Mr. Vandervort also scolded Ms. Knutson for

missing a school district leadership meeting and informed her that she must attend all

leadership meetings. Mr. Cole reiterated the importance that Ms. Knutson attend

leadership meetings. Ms. Knutson became upset, but not angry. Ms. Knutson felt the

directions to attend leadership meetings were not fair because Mr. Vandervort had

previously told her that program directors were no longer to attend the meetings. Ms.

Knutson did not tell Mr. Cole during this meeting that Mr. Vandervort had said directors

should not attend. The parties resolved the issue with Ms. Knutson agreeing to attend the

meetings.

During this meeting, Mr. Vandervort directed Ms. Knutson to keep "regular work

hours"; however, he did not define "regular hours." CP at 97, 106. Ms. Knutson came to

work later on Mondays so she could take her son to school, but she stayed at work later

the first workday of the week. Mr. Cole said he would not nitpick Ms. Knutson's work

hours. There was no directive at the end of the meeting that Ms. Knutson would work

any certain hours. Mr. Vandervort did not object to Ms. Knutson's coming to work later

on Mondays.

Ms. Knutson informed Mr. Cole that she lacked an office and work computer at

the school district administration building. Mr. Cole expressed shock that Ms. Knutson

had no office in the district building. Ms. Knutson explained to Mr. Cole and others that

the lack of an office and computer required her to continually travel between home and

school. Ms. Knutson had previously asked Mr. Vandervort for office space.

During this meeting, Mr. Cole told Ms. Knutson that an employee, Krissy Quilter,

did not wish to receive text messages. Ms. Knutson agreed to send no texts to Ms.

Quilter. Ms. Turner and Mr. Cole left Mr. Vandervort's office, but Mr. Vandervort and

Ms. Knutson continued to talk. Ms. Knutson referred to this short interaction after Ms.

Turner and Mr. Cole left as the second meeting of December 16.

During this second meeting, Ms. Knutson asked why Mr. Vandervort told her that

program directors were no longer desired at leadership meetings. Ms. Knutson asked Mr.

Vandervort that ifhe intended to change the rules, he let her know what to expect. In

reply, Mr. Vandervort yelled at Ms. Knutson, stating, "'What are you talking about? I

did not say that. '" CP at 113, 116. Ms. Knutson reminded Mr. Vandervort of the

meeting when he told her that directors should no longer attend leadership meetings. He

then remarked, '" I can't believe you didn't throw me under the bus. I forgot about

telling you that.'" CP at 116-17. Ms. Knutson also reminded Mr. Vandervort that he had

approved her flexible work schedule because of her different work sites.

At the conclusion of this second meeting, Ms. Knutson walked directly to Mr.

Cole's office and complained to him about Mr. Vandervort's behavior. Ms. Turner was

present during this third meeting. Ms. Knutson considered this the third December 16

meeting. Ms. Knutson told Mr. Cole that she wanted the hostile treatment from Mr.

Vandervort stopped. During this meeting, Ms. Knutson complained to Mr. Cole about a

series of actions by Mr. Vandervort. Ms. Knutson told Mr. Cole that Mr. Vandervort

offered to pay for her Spanish class and meet her off campus to study. She complained

that Mr. Vandervort mentioned in her performance evaluation that she lacked a college

degree. Ms. Knutson also complained about Mr. Vandervort talking with her about

inappropriate personal subjects.

During this third December 16 meeting, Ms. Knutson also explained to Mr. Cole

that Mr. Vandervort grew angry with her once he learned she had a boyfriend and that is

when the hostile treatment commenced, including Mr. Vandervort yelling at her in

meetings and ignoring her in the hallways. During the meeting, Ms. Knutson asked for a

different supervisor. Mr. Cole asked if Ms. Knutson wished to file a formal complaint.

She responded that she did not want to lose her job, she just wanted Mr. Vandervort's

behavior to stop. Mr. Cole said okay and the meeting ended. During the last December

16 meeting, or a later meeting, Ms. Turner told Ms. Knutson, '" If you want to swim in

the swamp, you better make nice with the alligators.'" CP at 276.

No. 32540-7-111

The hostile work atmosphere continued after the December 16,2008 meetings.

The silent treatment in the hallways continued. On one occasion, Mr. Vandervort walked

by Ms. Knutson at the school district front desk and Ms. Knutson greeted Mr. Vandervort

but he just walked by. Ms. Knutson believed Mr. Vandervort ignored her on other

occasions, but she could not recall the details.

In February 2009, Ms. Knutson was called into Ms. Turner's office to discuss

staffing and budget reductions. Mr. Vandervort had previously advised Ms. Knutson of a

need to reduce her budget by $50,000. During the meeting, Mr. Vandervort asked Ms.

Knutson for a report he claimed he asked her to write. According to Ms. Knutson, Mr.

Vandervort had not asked for any report, only ways to cut the budget. Ms. Knutson had

already put in writing how to cut the budget by $50,000. Mr. Vandervort looked at Ms.

Knutson, threw his arms into the air, raised his voice, looked at Ms. Turner, and said,

'"' See! I get nothing! I just get nothing!'" CP at 124, 172.

Mr. Vandervort concedes that he may have raised his voice due to frustration

during the February 2009 meeting with Ms. Turner and Ms. Knutson. Mr. Vandervort

claims he would have used the same tone of voice if he had addressed a man under the

same circumstances. He purports to be direct with all employees and claims that on the

rare occasions that he raises his voice, his tone is directed more at men than women.

Chet Harum, executive director of student and support services, and Ms. Turner testified

No. 32540-7-II1

that each has heard Mr. Vandervort raise his voice with both male and female employees.

Exhibit 9 to Ms. Knutson~s deposition is a three-page e-mail string between Ms.

Knutson and Mr. Vandervort~ which begins on April24~ 2009. The school district

presented the content of the e-mail to contradict Ms. Knutson~s claim that a hostile work

environment began in October 2008. In an April 27, 2009, 6:45 a.m. e-mail.Ms.

Knutson wrote to Mr. Vandervort about his visiting a day care program:

"Good morning. I can do any day or time. I'd love for you to come out. It has been a long time and would be fun. Your schedule is probably harder to find time, so just let me know even if last minute the time opens up for you." ... "Should I make a CD for road trip? Hahah."

CP at 188-89.

In June 2009, Mr. Vandervort asked Ms. Knutson to telephone Natalie, a person

who did not work for the school district but who wanted to conduct a summer camp at a

school district facility. Mr. Vandervort directed Ms. Knutson to tell Natalie no. CP at

183. Before calling, Ms. Knutson wanted to speak with the school district licensor to

discuss limitations on outside groups using district facilities. Mr. Vandervort called Ms.

Knutson into his office the following day, upset that she had not yet called Natalie. He

yelled at Ms. Knutson, '" Why the hell haven't you called her or called her back yet?'"

CP at 185. He accused Ms. Knutson of insubordination. According to Mr. Vandervort,

his reaction to her was not the result of her being a woman.

13 No. 32540-7-III

In July or August 2009, Mr. Cole told Ms. Knutson that Mr. Harum would be her

new supervisor. Ms. Knutson stated that Mr. Harum did not create a hostile work

environment toward her. Mr. Vandervort's last performance evaluation of Ms. Knutson

occurred in September 2008, which preceded the alleged hostile work environment.

In September or October 2009, Mr. Vandervort and Ms. Knutson passed on the

stairs in the Wenatchee School District administration building. Ms. Knutson stopped

Mr. Vandervort. She wanted to rebuild the relationship. Although Mr. Vandervort was

no longer her supervisor, Ms. Knutson asked if she had made progress in her work

performance. Mr. Vandervort responded that he had attempted to promote her to a

director but the promotion might not be beneficial. Ms. Knutson asked Mr. Vandervort

to explain. He stated that he was on the way to a cabinet meeting and could not talk then.

Ms. Knutson met with Mr. Harum and Mr. Vandervort in October 2010 to discuss

the budget. Mr. Vandervort raised his voice and stated that he was not getting

information he wanted on the budget. Ms. Knutson mentioned some ideas for the budget

and offered suggestions to charge parents for summer camps. She mentioned missing

money from one of her accounts. Ms. Knutson said that Mr. Vandervort's finance

department failed to provide her information needed for the budget. Mr. Vandervort

snickered and rolled his eyes at her. Mr. Vandervort became angry and expressed

displeasure about Ms. Knutson's handling of the budget process. Ms. Knutson felt

humiliated.

Mr. Vandervort left the meeting, and Ms. Knutson sat alone with Mr. Harum. She

then complained about Mr. Vandervort's behavior. She told Mr. Harum that she had

spoken with Mr. Cole and Ms. Turner and had hoped the hostile work environment would

end with a new supervisor. She was upset that the antagonistic environment continued.

Mr. Harum said that he observed the hostility and that he would speak with Mr.

Vandervort to end the hostility.

Ms. Knutson complains that after her reporting of Mr. Vandervort to Mr. Cole, the

school district, primarily Ms. Turner and Mr. Vandervort, repeatedly wrote negative

comments about her job performance. According to her, the school district also refused

to provide information to her regarding grant money that funded her program, making it

impossible for her to create budget reports. She also believes that the school district

refused to respond to her e-mails expressing concerns over responsibilities and

expectations being placed on her without adequate experience or training. In February

2011, the school district placed Ms. Knutson on a personal improvement plan, a version

of formal discipline.

C. Mr. Vandervort's treatment ofother female employees

In response to the school district's summary judgment motion, three former female

employees-Melissa Campbell, Sandra Mueller, and Trisha Johnson-signed affidavits

critical of Mr. Vandervort and the school district's human resources department. Ms.

Campbell worked at the school district from 2005 to 2010. She first served as the

substitute teacher coordinator in the human resources department. By 2007, Ms.

Campbell worked as substitute teacher coordinatorlhuman resources secretary under the

supervision of Ms. Turner and Mr. Cole.

According to Ms. Campbell, Mr. Vandervort worked in the same office building

as the human resources staff. Thirty to 40 females and 3 males worked in the school

district administration office. According to Ms. Campbell, Mr. Vandervort tried to

dominate the office and disliked being confronted or questioned. According to Ms.

Campbell, Mr. Vandervort responded to unpleasant questions with the "f' word.

CP at 285. Because of his frequent "WTF [what the f***]" looks, Mr. Harum drew a

caricature of him for the 2008 superintendent's cabinet. CP at 285. Mr. Vandervort and

Kevin Bredesen, an earlier human resources director, butted heads and screamed at each

other.

Ms. Campbell testified that Mr. Vandervort was fine to work with and be around

as long as you were on his "good side." CP at 284. If one "got on his bad side," he grew

cold and hostile. CP at 285. Mr. Vandervort enjoyed causing discord between finance

department and human resources department personnel. He initiated marshmallow fights

with marshmallow guns and tossed rubber balls or screaming monkeys across a divider

between the finance and human resource departments. According to Ms. Campbell, a

running joke in the school district office was that one needed to treat Mr. Vandervort like

a weapon and'" point him away from you.'" CP at 285.

In her affidavit, Ms. Campbell related a conversation she had had with Mr.

Vandervort in which he spoke about a finance department employee, Trisha Johnson. i The school district had terminated Ms. Johnson's employment purportedly because of ! I budget constraints. Mr. Vandervort told Ms. Campbell that he would wait a few months I, ! I

and then re-post the job with different qualifications so that Ms. Johnson would lack the i qualifications and Linda Honeywell, another employee, would fill the opening. 1!

According to Ms. Campbell, Mr. Vandervort performed Ms. Knutson's budget ,l r tasks for the day care program. After Ms. Knutson began to date Mr. Waterman, Mr. ! f; I Vandervort ended this assistance. One year, Ms. Campbell wore a "Kiss Me I'm Irish" l ,j. ~,

I shirt on St. Patrick's Day. On that day, without warning, Mr. Vandervort kissed Ms. f Campbell full on the lips in front of other staff members. Ms. Campbell spoke to Mr. i f Cole about the kiss in the presence of Ms. Turner. Mr. Cole appeared shocked, grew 1, f J pale, and asked Ms. Campbell ifshe wanted him to speak with Mr. Vandervort. Ms.

Campbell said no. CP at 286. Ms. Turner laughed. Ms. Campbell wore her shirt again

the next St. Patrick's Day, and Mr. Vandervort kissed her again. She never wore the shirt I t IJ ,

again.

17 No. 32540-7-II1 Knutson v. Wenatchee Sch. Dist.

The second female former employee who signed an affidavit, Ms. Mueller,

worked at the school district in the human resources department from 2004 until 2012.

She described Mr. Vandervort as unprofessional and disrespectful to staff, including Ms.

Knutson. According to Ms. Mueller, Mr. Vandervort threw personnel requisitions in the

trash as people submitted them. On one occasion around 2010, Mr. Vandervort

confronted Ms. Mueller and asked why she limited interaction with him. Ms. Mueller

stated she did not like how he treated others. Mr. Vandervort asked her if she referred to

his treatment of Ms. Knutson. The queries led to a one-hour conversation about Mr.

Vandervort's disruption of others' work. Ms. Mueller told Mr. Vandervort that she had

issues with how he treated Ms. Knutson but that he also mistreated others. After this

conversation, Ms. Mueller's performance evaluations lowered. Ms. Mueller complained

to Ms. Turner about this and said, '''You are documenting me out ofthisjob[,] aren't

you.'" CP at 292. Ms. Turner replied, '" No, maybe you are no longer suited for this

position.'" CP at 292. Ms. Turner told her that maybe she should start looking for a new

job. Shortly thereafter, Ms. Mueller found a new job outside the school district.

The third female former employee who signed an affidavit was Trisha Johnson,

who worked at the school district from March 2004 to February 2006 as Mr.

Vandervort's assistant and as an assistant accountant. According to Ms. Johnson, the

atmosphere in the school district office was cliquish. Mr. Vandervort was initially

friendly to Ms. Johnson but eventually excluded her from office activities. Mr.

Vandervort criticized her job performance but was vague in his criticism. Ms. Johnson

noticed Mr. Vandervort giving female employees back rubs and receiving back rubs from

the female employees.

In February 2006, the school district terminated Ms. Johnson's employment. Mr.

Vandervort told Ms. Johnson that the school district had to eliminate the finance assistant

position that another employee occupied due to budget cuts and because there was not

enough work. Because the other employee had seniority, that employee received Ms.

Johnson's job. One year later, the employee who took Ms. Johnson's job as assistant

accountant left and the position was posted. Ms. Johnson submitted an application for the

position but received no call for an interview.

D. The disputed budget shortfall 0/2010-2011

1. The district's claims

According to Mr. Vandervort and school district Superintendent Brian PIones, as a

result of the 2008 national recession and decreased state funding, the school district

initiated cost saving measures. During the 2009-20 I 0 school year, the school district did

not replace 20 retired certified staff positions. During that year, the school district

terminated the employment of and eliminated the positions of assistant director of

maintenance and the school age care billing clerk.

Even after the cuts of2009-2010, the programs lost money. By the spring of

2011, state funding for the Wenatchee School District had decreased in the sum of

$3 million and further decreases were anticipated. In March 2011, the school district

contemplated further reductions in staff and cuts in the day care program. The school

district board of directors directed the school district's administrative cabinet to consider

cuts to self-sufficient programs that incurred losses. The school age care program was

such a program.

The administrative cabinet consisted of Mr. Flones and several high-ranking

administrators, presumably including Mr. Vandervort. Mr. Vandervort provided budget

information to assist the cabinet and the board. The cabinet recommended elimination of

Ms. Knutson's position, in addition to other budget cuts, including not replacing 10

certified staff, a reduction in force of 33 1 classified staff, and the elimination of a part of

the school age care program. The board accepted the cabinet's recommendation and

terminated Ms. Knutson's position along with the others described above. The district

states that the decision to terminate Ms. Knutson was budget driven and had nothing to

do with her complaints concerning Mr. Vandervort.

2. Ms. Knutson's claims

I This number is 34 in one administrator's declaration but 33 in the district's interrogatory answer.

20 No. 32540-7-111

School district financial records show that the district finished the 2008-2009

fiscal year with $2,199,024.81 in excess revenue. The school district finished the 2009­

2010 fiscal year with $1,281,589.17 in excess revenue, finished the 2010-2011 fiscal year

with $826,782.93 in excess revenue, and finished the 2011-2012 fiscal year with

$1,046,705.03 in excess revenue. During those years, the school district increased

expenditures.

Of the 33 classified staffthat the school district laid off in 2011, the school district

rehired 24. Of the 9 not rehired, 4 retired or quit.

Similar to the 24 who were rehired, Ms. Knutson also attempted to become re­

employed with the school district. On October 7, 2011, the school district posted an open

position for an early learning coordinator at the Westside Early Learning Center. Ms.

Knutson applied for the job but was not afforded an interview. According to Ms. Turner,

no one was granted an interview or hired for the position. The school district mistakenly

believed it needed a licensed early learning supervisor to lead the preschool care

program, but later discovered otherwise.

E. Procedure

Ms. Knutson ultimately ftled a lawsuit against the Wenatchee School District on

October 30, 2012, alleging she was subject to a hostile work environment and terminated

from employment because of her gender in violation ofRCW 49.60.180. She claimed

that the school district retaliated against her after she engaged in statutorily protected

activity in violation ofRCW 49.60.210 and that the school district violated her

constitutional due process rights when firing her.

The school district filed a motion for summary judgment to dismiss all three

claims. The trial court granted the motion and dismissed all claims. The trial court

dismissed Ms. Knutson's hostile work environment claim by excluding from

consideration events occurring prior to the statute of limitations running and by finding

the conduct occurring before and after the statute of limitations to be "not the same

course of behavior." CP at 356. The trial court concluded that Ms. Knutson failed to

support her retaliation claim since there was no question of fact as to a causal link

between Mr. Vandervort's behavior and the elimination of Ms. Knutson's position.

ANALYSIS

A. Whether Mr. Vandervort's conduct that occurred outside the statute oflimitations period may be considered when assessing Ms. Knutson's claim for a hostile work environment

Initially, we must address what acts this court may consider when determining

whether the trial court correctly granted summary judgment to the school district on Ms.

Knutson's claim of a hostile work environment. The school district argues that the

purported sexually motivated remarks and conduct ofMr. Vandervort that occurred

before the relationship between Mr. Vandervort and Ms. Knutson changed in October

2008 cannot be considered because the comments and behavior occurred outside the

statute of limitations. Ms. Knutson argues that Mr. Vandervort's remarks and actions

before October 2008 may be considered because the comments and behavior were part of

a pattern of discrimination that constituted a hostile work environment.

The trial court determined as a matter of law that the relevant acts that could be

considered in Ms. Knutson's hostile work environment claim were only those that

occurred within the statute of limitations period. Since Ms. Knutson filed suit on

October 30,2012, acts occurring before October 30,2009 were outside the statute of

limitations. As detailed above, Ms. Knutson claimed that she was subject to flirtatious

conduct or unwelcome advances until the Waterman conversation of October 2008.

After that date, her relationship with Mr. Vandervort changed and Mr. Vandervort never

again communicated with her in a flirtatious manner. After October 2008, he grew cold

and aloof and yelled at Ms. Knutson for her job performance. The trial court excluded

actions that occurred outside the statute of limitations since they were of a different

character than those inside the statute of limitations.

Washington's Law Against Discrimination (WLAD), chapter 49.60 RCW,

prohibits employment discrimination based on sex. RCW 49.60.010, .030, .180.

RCW 49.60.l80(3) makes it an unfair practice for an employer "[t]o discriminate against

any person in compensation or in other terms or conditions of employment because of ...

sex." RCW 49.60.030(2) authorizes a person discriminated against in violation of

WLAD to bring a civil action. Two types of sex discrimination claims are recognized-

the quid pro quo sexual harassment claim, where the employer requires sexual

consideration from the employee for job benefits, and the hostile work environment

claim. Antonius v. King County, 153 Wn.2d 256,261, 103 P.3d 729 (2004). Ms.

Knutson asserts a hostile work environment. The four elements of a prima facie hostile

work environment claim are (1) the harassment was unwelcome, (2) the harassment was

because of sex, (3) the harassment affected the terms and conditions of employment, and

(4) the harassment is imputable to the employer. Glasgow v. Ga.-Pac. Corp., 103 Wn.2d

401,406-07,693 P.2d 708 (1985).

The WLAD does not contain its own limitations period. Discrimination claims

must be brought within three years under the general three-year statute of limitations for

personal injury actions. RCW 4.16.080(2); Antonius, 153 Wn.2d at 261-62. An issue

that arises in these cases is whether discriminatory or hostile conduct of the defendant or

the defendant's employee that occurs outside the limitation period may be included in the

calculus of a hostile work environment if some impermissible conduct occurs inside the

limitation period.

For example, in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122

S. Ct. 2061, 153 L. Ed. 2d 106 (2002), the United States Supreme Court addressed this

issue in the context of a charge of discrimination and retaliation with the Equal

Employment Opportunity Commission under federal law. The plaintiff claimed, among

other things, a racially hostile work environment during his employment. Id. at 104-05.

The employer argued that it was entitled to partial summary judgment as to acts occurring

before the relevant 300-day limitations period for filing such charges under Title VII of

the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e to 2000e-17, that precludes employment

discrimination on account of sex. Morgan, 536 U.S. at 106. The Court distinguished

those cases involving discrete retaliatory or discriminatory acts, such as termination,

failure to promote, denial of transfer, or refusal to hire, from cases involving claims of a

hostile work environment. For discrete acts, the Court noted that the limitations period

runs from the act itself, and if the limitations period has run, a discrete act is not

actionable even ifit relates to acts alleged in timely filed charges. Id. at 113. However,

the Court concluded that "[h]ostile work environment claims are different in kind from

discrete acts[ and t]heir very nature involves repeated conduct." Id. at 115.

The Court stated that an '" unlawful employment practice' therefore cannot be

said to occur on any particular day. It occurs over a series of days or perhaps years and,

in direct contrast to discrete acts, a single act of harassment may not be actionable on its

own. Such claims are based on the cumulative effect of individual acts." Id. (citation

omitted). The Court explained that a hostile work environment claim is composed of a

series of separate acts that collectively constitute one'" unlawful employment practice.'"

Id. at 117 (quoting 42 U.S.C. § 2000e-5(e)(l)).

Because Title VII's filing provision requires only that the charge be filed within a

certain period after the unlawful practice occurred, the Court reasoned it does not matter,

for purposes of the statute, that some of the component acts of the hostile work

environment fall outside the statutory time period. Id. The Court held that "[p ]rovided

that an act contributing to the claim occurs within the filing period, the entire time period

of the hostile environment may be considered by a court for the purposes of determining

liability." Id. Nevertheless, the acts about which an employee complains must be part of

the "same actionable hostile work environment practice." Id. at 120.

The Morgan Court rejected the rule applied by several of the federal circuits that a

plaintiff could not base a suit on acts occurring outside the statute of limitations period

unless it would have been unreasonable to expect the plaintiff to sue before the statute

ran. It did so precisely because the entire hostile work environment claim encompasses a

single unlawful employment practice. Id. at 117. Thus, it does not matter that a plaintiff

knows or should know at the time discriminatory acts occur outside the statute of

limitations period that the acts are actionable. Id. at 118. The Court explained that its

holding did not leave employers defenseless because if an employee unduly delayed suit

an employer could assert equitable defenses such as waiver and unreasonable delay, as

well as laches if the employer could establish lack of diligence on plaintiffs part and

prejudice to the employer as a result of the delay. Id. at 121.

Thus, under Morgan, a court's task is to determine whether the acts about which

an employee complains are part of the "same actionable hostile work environment

practice" and, if so, whether any act falls within the statutory time period. Id. at 120.

The acts must have some relationship to each other to constitute part of the same hostile

work environment claim, and if there is no relation, or if "for some other reason, such as

certain intervening action by the employer," the act is "no longer part of the same hostile

environment claim, then the employee cannot recover for the previous acts" as part of

one hostile work environment claim. Id. at 118.

In Antonius, the Washington Supreme Court adopted the Morgan analysis for

purposes of suits under chapter 49.60 RCW. There, Rose Antonius began working for

King County's Department of Adult and Juvenile Detention as a bookkeeper in 1983.

Antonius, 153 Wn.2d at 259. In 1985, she was promoted to a position as a corrections

officer and worked at the Seattle jail, where she supervised male inmates. She alleged

that until she was transferred to an all-female corrections facility in February 1996, she

was frequently subjected to sexually derogatory comments by inmates, coworkers, and

supervisors, and was exposed to sexually explicit inmate conduct. Id. at 259-60. She

often encountered pornographic materials, including magazines and videos, in inmate

areas, as well as pornographic materials left at correctional officers' workstations. At the

all-female facility, she did not encounter this discriminatory conduct.

In December 1996, Ms. Antonius was promoted to sergeant and reassigned to the

Seattle jail. In March 1997, she was transferred to the newly opened Regional Justice

Center correctional facility in Kent. Id. at 259. With her return to the Seattle jail and

continuing in her assignment in Kent, Ms. Antonius saw pornographic materials in

inmates' residential areas and at workstations, and was exposed to sexually explicit

videos. She also was subjected to derogatory comments toward herself and other

females. She did not complain, believing that it would not be productive and that it would

subject her to ridicule and possible reprisal. Id.

Ms. Antonius filed suit against King County on December 22, 2000, alleging the

county violated chapter 49.60 RCW by fostering and maintaining a sex-based hostile

work environment. The county moved for summary judgment on statute of limitations

grounds. The county maintained that Ms. Antonius's suit was untimely as to events

occurring more than three years before the suit was filed and that she did not face sex-

based discrimination during the limitations period itself. Id. at 260. Ms. Antonius

countered by arguing that the hostile work environment was a continuing violation giving

rise to an equitable exception to the statute of limitations and that she encountered

discriminatory conduct during the limitations period. The trial court granted partial

summary judgment in favor of the county as to acts occurring more than three years

before Ms. Antonius brought suit. The trial court reasoned that the hiatus in events

occurring while Ms. Antonius was assigned to the all-female facility precluded

application of a continuing violation exception to the statute of limitations. Id.

The court applied the Morgan analysis to determine whether the trial court

properly granted summary jUdgment to the county as to any acts allegedly occurring

more than three years before suit was filed. Id. at 270. The trial court had reasoned that

Ms. Antonius failed to demonstrate sufficient facts to show a systemic continuing

violation and that she could not show that acts occurring more than three years before suit

were part of a serial continuing violation because of the hiatus in events while she was at

the Alder Street facility for female inmates. The Court of Appeals, applying Morgan,

held that the county was not entitled to summary judgment because Ms. Antonius alleged

sufficient facts to show an act contributing to the hostile work environment occurred

within the limitations period. Id. at 265. The county maintained, however, that even

under Morgan partial summary judgment was proper. Id.

The Supreme Court remanded the case to the trial court to determine whether

summary judgment was appropriate under Morgan. Id. at 271. For purposes of remand,

the Antonius court rejected the county's argument that a gap in the events precluded a

court, as a matter of law, from considering previous acts to be sufficiently related to any

acts occurring within the statute of limitations period to constitute a single hostile work

environment. Id. at 271-72.

The question before us is whether Mr. Vandervort's conduct before Ms. Knutson's

relationship with Mr. Waterman constitutes the "same actionable hostile work

environment practice" as Mr. Vandervort's conduct after knowledge of Ms. Knutson's

relationship with Mr. Waterman. Morgan, 536 U.S. at 120. The acts must have some

relationship to each other to constitute part of the same hostile work environment claim.

An intervening action by the employer could preclude the acts from being part of the

same hostile environment claim.

Burkhart v. American Railcar Industries, Inc., 603 F.3d 472 (8th Cir. 2010) is

helpful. There, the plaintiff complained about sexual e-mails and comments from her

supervisor that occurred outside the statute of limitations and complained about being

shunned, suspended, and terminated within the statute of limitations. Id. at 474-75. Her

male supervisor was suspended for five days as a result of sending the sexually charged

e-mails. After the supervisor's suspension, the plaintiff received no further nonwork e-

mail or offensive comments from her supervisor. Id. at 475. She alleged, however, that

she was'" ostracized'" because of her complaint, that other employees exhibited a

.. , standoff attitude'" toward her, and that the plant manager no longer called her by a

nickname. Id. The plaintiff sought to claim that all of the conduct was part of one hostile

work environment claim, including the sexual e-mails and comments and the alleged

retaliatory actions. Id. The court rejected this argument because there was no evidence

that the sexually explicit e-mailsorcommentscontinued.ld. The alleged retaliatory acts

could not be considered sexual harassment. Id. at 476. Thus, the plaintiffs sexual

harassment claim was time barred. Id.

Similarly, the conduct of Mr. Vandervort before October 2008 is significantly

different from the conduct thereafter. Mr. Vandervort was no longer engaged in sexual

banter or flirtations. According to Ms. Knutson, the relationship between her and Mr.

Vandervort changed 100 percent. Ms. Knutson does not even characterize Mr.

Vandervort's conduct before October 2008 as hostile. His aloofness may have been

motivated by an unrequited affection engendered before October 2008, but his conduct

changed after October 2008. The conduct after October 2008 is retaliatory in nature,

which Burkhart considers different in nature than the sexual misconduct. Id. We

conclude that the trial court correctly applied the statute of limitations.

B. Whether Ms. Knutson presented prima facie evidence ofa hostile work environment

We review a decision to grant summary judgment de novo. Campbell v. State,

129 Wn. App. 10, 18, 118 P.3d 888 (2005). We will affirm the summary judgment only

if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence

of any genuine issues of material fact, entitling the moving party to judgment as matter of

law. CR 56(c). The court should consider all facts and all reasonable inferences from

them in the light most favorable to the nonmoving party. Qwest Corp. v. City of

Bellevue, 161 Wn.2d 353,358, 166 P.3d 667 (2007).

As noted above, the four elements of a prima facie hostile work environment claim

are (1) the harassment was unwelcome, (2) the harassment was because of sex, (3) the

harassment affected the terms and conditions of employment, and (4) the harassment is

imputable to the employer. Glasgow, 103 Wn.2d at 406-07. The school district does not

contest the first and fourth elements. We, therefore, limit our inquiry to the second and

third elements. We also limit our inquiry to alleged hostile acts occurring after October

2008 because of application of the limitation period.

1. Because ofsex

In determining whether harassment occurs "because of sex," the appropriate

question is, "would the employee have been singled out and caused to suffer the

harassment if the employee had been ofa different sex?" Id. Under Glasgow, gender

must be the "motivating factor" for the unlawful discrimination. Id.; Payne v. Children's

Home Soc 'y, 77 Wn. App. 507, 514, 892 P.2d 1102 (1995). "Sex" in this context refers

to gender, not activity of a sexual nature generally. John Doe v. Dep 't ofTransp. , 85 Wn.

App. 143, 149,931 P.2d 196 (1997).

32 No. 32540-7-III Knutson v. Wenatchee Sch. Dist.

To establish that offensive conduct constituted sex discrimination, the employee

must show that the conduct was (a) directed at women and (b) motivated by animus

against them as women. It is not sufficient to show that the employee suffered

embarrassment, humiliation, or mental anguish arising from nondiscriminatory

harassment. Payne, 77 Wn. App. at 514. The dispositive question is whether the

employee would have been subjected to harassment if she had been a man. Id. at 515.

Adams v. Able Building Supply, Inc., 114 Wn. App. 291, 57 P.3d 280 (2002) is

instructive. In Adams, the plaintiffs boss was a "rude, boorish, thoroughly obnoxious

supervisor prone to outrageous temper tantrums." Id. at 293. We evaluated whether his

frequent vocal and physical outbursts constituted a hostile work environment based on

Ms. Adams's gender. Id. at 295-96. We upheld the summary judgment dismissal of the

employee's harassment claim, concluding that the conduct was not sufficiently gender

specific to support a claim of gender-based harassment. Id. at 297-98.

In Payne, a female employee sued, claiming that her boss was abusive. She

alleged that when the boss talked while upset, he would get red in the face. He paced on

the floor and used a demeaning tone of voice. His means of dealing with most women in

the office were anger and outbursts. The plaintiff declared, '" It was like you should have

known what he needed and wanted before he did.'" Payne, 77 Wn. App. at 509. The

plaintiff claimed that his behavior toward her was unlike his behavior toward men. Id. at

514. However, there was also testimony that the employer had angry outbursts toward

male employees and the plaintiff failed to present any affidavits from other employees

that would show that the boss's behavior was abusive because of sex. ld. at 515. The

Payne court upheld the summary judgment of dismissal concluding that the employee did

not come forward with sufficient evidence to establish that her supervisor's conduct was

directed at her because of her gender. ld.

Ms. Knutson complains that after Mr. Vandervort learned of her relationship with

Mr. Waterman, Mr. Vandervort became aloof, stopped sitting with her at monthly

leadership meetings, and blamed Ms. Knutson for failing to attend leadership meetings.

She contends that Mr. Vandervort also blamed Ms. Knutson for failing to properly

prepare a budget for the day care programs when Mr. Vandervort and his finance office

were to blame. Ms. Knutson also cites that Mr. Vandervort yelled at her during meetings,

ignored her in the hallway, and greeted others in the workroom but ignored her. During a

meeting, Mr. Vandervort snickered and rolled his eyes at Ms. Knutson.

Mr. Vandervort's acts after October 2008 are gender neutral because the record

shows that Mr. Vandervort also treated male employees in the same rude and aloof

manner he treated Ms. Knutson. Ms. Turner and Mr. Harum testified that Mr.

Vandervort yelled at both male and female employees. Ms. Knutson testified that Mr.

Vandervort ignored her in the workroom but he greeted other women, illustrating a lack

of animus toward women. Affidavits submitted by Ms. Knutson from other female

employees undermine Ms. Knutson's hostile work environment claim. According to Ms.

Campbell, Mr. Vandervort sought to dominate the office and disliked being confronted or

questioned. Because of his frequent "WTF" look, Mr. Harum drew a caricature of him.

Mr. Vandervort and Mr. Bredesen butted heads and screamed at each other. According

to Ms. Campbell, a running joke in the school district office was that one needed to treat

Mr. Vandervort like a weapon and "point him away from you." Ms. Campbell did not

claim that Mr. Vandervort singled out only females for this hostile conduct, but gave the

example of Mr. Vandervort yelling at another male employee. Ms. Mueller testified that

she avoided Mr. Vandervort because of his boorish behavior toward Ms. Knutson and

others. She did not testify that Mr. Vandervort engaged in this boorish behavior only

toward women.

Ms. Knutson argues that although Mr. Vandervort may have also treated others

rudely, Mr. Vandervort's rude treatment of her was motivated by a spumed love and thus

should be considered the result "of sex." According to Ms. Knutson, Mr. Vandervort

treated her poorly because she violated the implied condition of employment to submit to

his flirtations. The record however reflects that Mr. Vandervort voluntarily ended the

flirtations when he learned Ms. Knutson had a boyfriend.

2. Pervasiveness

35 No. 32540-7-111

The third element of a hostile work environment requires a pervasive

discriminatory atmosphere. In deciding whether the relevant conduct was severe or

pervasive enough to affect the terms and conditions of employment, the court must look

at the totality of the circumstances, including the frequency and severity of the conduct,

whether it was physically threatening or humiliating or merely an offensive utterance,

and whether it unreasonably interfered with the employee's work performance.

Washington v. Boeing Co., 105 Wn. App. 1, 10, 19 P.3d 1041 (2000). "Casual, isolated

or trivial manifestations of a discriminatory environment do not affect the terms or

conditions of employment to a sufficiently significant degree to violate the law." Id. In

addition, the conduct must be objectively and subjectively abusive. Adams, 114 Wn.

App. at 297. In order to adversely affect employment, the harassing conduct must

"amount to a change in the terms and conditions of employment." Id.

As the United States Supreme Court noted in Faragher v. City ofBoca Raton:

These standards for judging hostility are sufficiently demanding to ensure that Title VII does not become a "general civility code." Properly applied, they will filter out complaints attacking "the ordinary tribulations of the workplace, such as the sporadic use of abusive language, gender­ related jokes, and occasional teasing." We have made it clear that conduct must be extreme to amount to a change in the terms and conditions of employment.

524 U.S. 775, 788,118 S. Ct. 2275,141 L. Ed. 2d 662 (1998) (citations omitted) (quoting

Oncale v. Sundowner Offihore Servs., Inc., 523 U.S. 75, 80, 118 S. Ct. 998, 140 L. Ed.

2d 201 (1998); BARBARA LINDEMANN & DA VID D. KADUE, SEXUAL HARASSMENT IN

EMPLOYMENT LAW 175 (1992)).

The conduct of Mr. Vandervort before October 2008 falls short of creating a

pervasive discriminatory atmosphere. Ms. Knutson did not find any of the conduct

offensive, and Ms. Knutson does not assert that the remarks and behavior impacted her

job performance. However, whether the conduct after October 2008 created a pervasive

hostile environment is a closer call.

Ms. Knutson relies on Campbell, 129 Wn. App. at 19, to support her argument that

she created an issue of fact as to harassment that affected the terms and conditions of her

employment. She contends Campbell is on point because the plaintiff was mocked and

yelled at by her superior. But there is much more discriminatory behavior in the

Campbell case. There, Meredith Campbell worked as the secretary for Eastern

Washington University's Military Science Department. Id. at 14. Major Leaf Rich and

Lieutenant Colonel Charles Green had faculty status in the department. Lieutenant

Colonel Green was the department chair. Id. at 15. Shortly after she began work, Ms.

Campbell heard Major Rich make derogatory comments about women and the major told

her to be more subdued and not so direct. Id.

Lieutenant Green reprimanded Ms. Campbell for asking work study students not

to remove items from her desk and told her that her'" desk will be raped on a daily basis

No. 32540-7-111 Knutson v. Wenatchee Sch. Dist.

whether you like it or not.'" Id. at 16 (internal quotation marks omitted). He also told

her that women should not work, men are the leaders of the family, and women should

obey them. Ms. Campbell found this behavior offensive. Major Rich commented to Ms.

Campbell that she caught people off guard by walking up and talking to them because she

was so small and fragile looking. He further told her other women on campus would be

jealous of her because she was petite and had a good body. The major said she would

wear out her boyfriend unless she straightened out her personality.

Major Rich sent an e-mail entitled "Don't Bother Me Button" to Ms. Campbell

and other members of the department. Id. The e-mail had a video attachment showing a

log swinging from one side of the screen directly into a woman and forcibly removing

her. In the body of the e-mail, the major said it was '''time to have a little fun with

Meredith.'" Id. He also said their superiors had authorized him to outfit their computers

with this device just for Ms. Campbell. Lieutenant Colonel Green sent an e-mail entitled

"Our Work Environment" to Ms. Campbell and others in the department. The message

was in response to the major's earlier e-mail to the department that explained why

alcohol should be served at work and also contained sexual references. The major sent an

e-mail entitled "Men and Women Switchboard" toMs. Campbell and others. It implied

women were impossible to figure out. Ms. Campbell was the only female recipient. Id.

In a performance evaluation of Ms. Campbell, Major Rich wrote that she was

No. 32540· 7~III Knutson v. Wenatchee Sch. Dist.

expected to clean up the kitchen and common areas. When she obj ected that these duties

were not part of her job, Major Rich informed her that these types of chores were

'" women's work.'" Jd. at 17 (internal quotation marks omitted). Other incidents made

Ms. Campbell uncomfortable, including being yelled at, mocked, and ignored. On one

occasion, Ms. Campbell was leaving work when Major Rich blocked her from leaving.

All of these events occurred during a three·month period. Jd. at 16-17.

The facts here are not nearly as egregious as those in Campbell. Mr. Vandervort's

aloofness, rudeness, and occasional yelling at Ms. Knutson undoubtedly caused her

discomfort, but are more akin to the ordinary tribulations of the workplace rather than

extreme conduct that is actionable. Ms. Knutson's evidence falls short of showing a

pervasive hostile work environment that affected the terms and conditions of her

employment.

In conclusion, Ms. Knutson fails to raise genuine issues of material fact to

establish two of the four elements of her hostile work environment claim. The trial court

properly granted the school district's motion for summary judgment dismissal of Ms.

Knutson's hostile work environment claim.

C. Whether Ms. Knutson's retaliation claim survives summary judgment

Finally, Ms. Knutson claims that her termination from employment constitutes

retaliation in violation ofWLAD. RCW 49.60.210(1) reads:

It is an unfair practice for any employer, employment agency, labor union, or other person 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 violation ofRCW 49.60.210 for retaliatory discharge, an employee

must show (1) she or he engaged in a statutorily protected opposition activity, (2) an

adverse employment action was taken, and (3) a causal link between the former and the

latter. Delahunty v. Cahoon, 66 Wn. App. 829,839,832 P.2d 1378 (1992). If the

employee fails to establish a prima facie case, then the defendant employer is entitled to

summary judgment as a matter of law. Hill v. BCTI Income Fund-1, 144 Wn.2d 172,

181,23 P.3d 440 (2001), overruled on other grounds by McClarty v. Totem Elec., 157

Wn.2d 214, 137 P.3d 844 (2006). If the employee succeeds in establishing a prima facie

case, the burden shifts to the employer to produce admissible evidence of a legitimate,

nonretaliatory reason for its adverse employment action. Renz v. Spokane Eye Clinic, PS,

114 Wn. App. 611, 618, 60 P.3d 106 (2002).

1. Primafacie case

In December 2008, Ms. Knutson reported a hostile work environment to the

Wenatchee School District's human resources department. She need not prove that her

complaint of discrimination was valid, only that she reported discrimination. Id. at 619.

An employee who opposes employment practices reasonably believed to be

40 No. 32540-7-III Knutson v. Wenatchee Sch. Dist.

discriminatory is protected by the "opposition clause" whether or not the practice is

actually discriminatory. Graves v. Dep 't ofGame, 76 Wn. App. 705, 712, 887 P.2d 424

(1994). Because Ms. Knutson engaged in protected activity, she has satisfied the first

element of her prima facie retaliation case.

Ms. Knutson was terminated on June 30, 2011. Ms. Knutson, therefore, has

satisfied the second element of her prima facie retaliation claim.

Finally, Ms. Knutson must establish a causal link between Ms. Knutson's

reporting Mr. Vandervort's conduct and her termination from employment. The school

district argues that Ms. Knutson cannot make out a prima facie case on this element. In a

recent decision, the United States Supreme Court held that in a Title VII retaliation suit,

the plaintiff must show that "but for" her protected action, there would have been no

adverse employment action. Univ. ofTex. Sw. Med. Ctr. v. Nassar, _U.S._, 133 S.

Ct. 2517, 2533,1861. Ed. 2d 503 (2013). Washington law imposes a looser standard,

evaluating whether retaliation was a "substantial factor" motivating the discharge.

Allison v. Hous. Auth., 118 Wn.2d 79, 95-96,821 P.2d 34 (1991).

Proximity in time between the protected activity and adverse employment action,

along with evidence of satisfactory work performance, suggests an improper motive.

Kahn v. Salerno, 90 Wn. App. 110, 130-31,951 P.2d 321 (1998). Ms. Knutson

complained repeatedly of Mr. Vandervort's aloofness and shouting at her from October

2008 until at least October 2010. The school district disciplined Ms. Knutson in February

2011 and terminated her in June 2011. Issues of material fact exist as to satisfactory

work performance. Ms. Knutson claims that her inability to provide a budget was due to

the district's refusal to provide her information and adequate training. Because there is

close proximity in time between her complaints and the adverse employment action, and

because there are disputed issues of material fact concerning satisfactory job

performance, Ms. Knutson has set forth a prima facie case of retaliation.

2. Pretext

This court must next apply the McDonnell Douglas burden-shifting scheme to

determine the question of pretext. Hill, 144 Wn.2d at 182 (citing McDonnell Douglas

Corp. v. Green, 411 U.S. 792,93 S. Ct. 1817,36 L. Ed. 2d 668 (1973)). The school

district argues that Ms. Knutson failed to provide a prima facie case but, even if she did,

it had legitimate grounds for the elimination of the director of day care programs due to

the budget crisis and the program's lack of self-sufficiency.

As noted above, the school district board of directors asked the administration to

review all "self-sufficient" programs that were operating at a deficit to determine if they

could be eliminated to help balance the budget. As early as April or May 2011, Mr.

Harum advised Ms. Knutson that her program was being scrutinized because it was

losing money every year. Mr. Harum indicated that the program could no longer justifY

the position of director. The administrative cabinet made several budget cutting

recommendations to the board, including the elimination of 33 staff positions, which

included Ms. Knutson's director of school age care position.

Once the employer provides evidence of a legitimate nonretaliatory reason for

eliminating the former employee's position, then the burden shifts back to the former

employee to show that the employer's reason is actually a pretext for what, in fact, was a

retaliatory purpose for its adverse employment action. Grimwood v. Univ. ofPuget

Sound, Inc., 110 Wn.2d 355,364, 753 P.2d 517 (1988); Renz, 114 Wn. App. at 618-19.

If the former employee fails to make this showing, the employer is entitled to judgment

as a matter oflaw. Renz, 114 Wn. App. at 619.

To prove pretext, the employee must produce substantial evidence that the

justification forwarded by the employer is unworthy of belief. Kuyper v. State, 79 Wn.

App. 732, 738, 904 P.2d 793 (1995). '" Speculation and belief are insufficient to create a

fact issue as to pretext. Nor can pretext be established by mere conclusory statements of

a plaintiff who feels that he has been discriminated against.'" Hines v. Todd Pac.

Shipyards Corp., 127 Wn. App. 356,372, 112 P.3d 522 (2005) (quoting McKey v.

Occidental Chern. Corp., 956 F. Supp. 1313, 1319 (S.D. Tex. 1997)). The former

employee must demonstrate pretext by showing that the employer's articulated reason for

elimination of her position had no basis in fact or was not the real motivating factor for

its adverse employment decision. Kuyper, 79 Wn. App. at 738.

Ms. Knutson attempts to establish that the school district's justification is

unworthy of belief by showing that the district's revenues exceeded its costs in every

year, including the year when the district terminated her employment. But for Ms.

Knutson to actually establish pretext, she must establish that someone in the

administrative cabinet who knew she had reported suspected retaliation created a false

budget emergency that caused the elimination of 33 positions, including Ms. Knutson's

own. The trial court found this incredulous. So do we. The fact that the administrative

cabinet recommended the elimination of 33 employees is overwhelming evidence that it

had a bona fide belief that the district faced a budget emergency. Because a reasonable

trier of fact cannot find the employer's budget emergency justification unworthy of

belief, summary judgment was appropriate.

CONCLUSION

We do not countenance Mr. Vandervort's alleged behavior. However, viewing the

facts in the light most favorable to Ms. Knutson; Mr. Vandervort's post-October 2008

actions toward her were not because of sex, nor did those actions sufficiently affect the

terms or conditions of her employment. Further, despite establishing a prima facie case

of retaliation, she cannot establish that the school district's justification was pretextual.

Although one might reasonably conclude that Ms. Knutson was treated unfairly or even

harshly, under the law her claims are not actionable. We deny any award of costs to the

school district.

Affirm.

A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.

WE CONCUR:

Fearing, J.