FILED COM OF APPEALS DIY 1 STATE OF WASHINGTON
2011 SEP I I MHO:27
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
LOGAN COLES, individually, and No. 75471-8-1 CODY LORD, individually, DIVISION ONE Appellants,
V.
KAM-WAY TRANSPORTATION, a UNPUBLISHED Washington state corporation; KAM SIHOTA, individually and jointly with FILED: September 11, 2017 HARNEET SIHOTA, husband and wife and their marital community; and DORI BINDER, individually and jointly with JOHN DOE BINDER, husband and wife and their marital community,
Respondents.
Cox, J. — Logan Coles and Cody Lord appeal the order granting
summary judgment to Kam-Way Transportation, dismissing their claims of
violations of the Washington Law Against Discrimination. The sole claims before
us in this appeal are the hostile work environment and retaliation claims. We
deem abandoned the other claims asserted below. There are no genuine issues
of material fact for the retaliation claims. But there are genuine issues of material No. 75471-8-1/2
fact for the hostile work environment claims. We affirm in part, reverse in part,
and remand.
This case arises from the employment and eventual termination of
employment of Coles and Lord by Kam-Way Transportation. Coles and Lord are
two men in a committed intimate relationship. They were both employed by
Kam-Way for a few years. Kam-Way terminated their employment within several
days of each other in March 2011. The circumstances surrounding their
departures are disputed.
Coles and Lord commenced this suit against Kam-Way almost three years
after their March 2011 termination. They both asserted several causes of action:
hostile work environment, retaliation, wrongful termination, negligent supervision,
and infliction of emotional distress.
Kam-Way moved for summary judgment on the basis that these claims
were time-barred. The trial court denied this motion. Kam-Way has not
appealed that ruling.
Kam-Way later moved for summary judgment, based on other arguments,
on the claims that are before us on appeal. The trial court granted this motion.
The court also denied the motion for reconsideration of Coles and Lord.
They appeal.
WASHINGTON LAW AGAINST DISCRIMINATION
Coles and Lord argue that the trial court improperly dismissed their
Washington Law Against Discrimination (WLAD)claims on summary judgment.
We agree, in part.
2 No. 75471-8-1/3
Summary judgment is proper "only when there is no genuine issue as to
any material fact and the moving party is entitled to judgment as a matter of
law."1 There is a genuine issue of material fact if reasonable minds could differ
on the facts controlling the litigation outcome.2 We consider "the evidence and
all reasonable inferences from the evidence in the light most favorable to the
nonmoving party."3
We review de novo a trial court's grant of summary judgment.4
In WLAD cases, granting summary judgment to an employer is seldom
appropriate due to the difficulty of proving a discriminatory motivation.5
Hostile Work Environment
Coles and Lord argue that there are genuine issues of material fact
regarding their hostile work environment claims and that Kam-Way is not entitled
to judgment as a matter of law. We agree.
1 Scrivener v. Clark Coll., 181 Wn.2d 439, 444, 334 P.3d 541 (2014); see also CR 56(c).
2Knight v. Dep't of Labor & Indus., 181 Wn. App. 788, 795, 321 P.3d 1275 (2014)(quoting Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008)).
3 Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080(2015).
4 Id.
5 Scrivener, 181 Wn.2d at 445. 3 No. 75471-8-1/4
The WLAD, codified at chapter 49.60 RCW,governs hostile work
environment claims based on discrimination.6 Because chapter 49.60 RCW
substantially parallels Title VII, federal discrimination cases are persuasive.7
RCW 49.60.180(3) provides that an employer may not discriminate
against any person due to the person's sexual orientation. To establish a hostile
work environment claim, a plaintiff must show that "'(1) the harassment was
unwelcome,(2) the harassment was because [plaintiff was a member of a
protected class],(3) the harassment affected the terms and conditions of
employment, and (4) the harassment is imputable to the employer."8
Washington courts permit hostile work environment claims "based on acts
that individually may not be actionable but together constitute part of a unified
whole comprising a hostile work environment."9 For example, an employee
satisfies the third element of a hostile work environment claim if, considering the
totality of the circumstances, the harassment is sufficiently pervasive to alter the
employee's employment conditions and create an abusive working
environment.19
Estevez v. Faculty Club of Univ. of Wash., 129 Wn. App. 774, 790, 120 6 P.3d 579 (2005).
7 Antonius v. King County, 153 Wn.2d 256, 266, 103 P.3d 729 (2004).
8 Loeffelholz v. Univ. of Wash., 175 Wn.2d 264, 275, 285 P.3d 854(2012) (alteration in original)(quoting Antonius, 153 Wn.2d at 261).
9 Antonius, 153 Wn.2d at 268.
10 Loeffelholz, 175 Wn.2d at 275. 4 No. 75471-8-1/5
Unwelcome Harassment
Coles and Lord argue that they established this element of their hostile
work environment claims. We agree.
Harassment is conduct an employee finds offensive.11 Discriminatory or
derogatory comments, mockery, or insults towards the employee generally
constitute harassment.12 Asserting subjective offense to innocuous comments,
without acknowledging how the comment was discriminatory, is not sufficient to
prevent summary judgment dismissa1.13
"[I]f. . . hostility [towards an employee's sexual orientation] pervades a
workplace, a plaintiff may establish a violation of Title VII, even if such hostility
was not directly targeted at the plaintiff."14
Here, Coles testified at deposition to the treatment that he considered
harassing. His claims primarily focus on the actions and comments by Dori
Binder, Kam-Way's CFO. Specifically, he testified that soon after she arrived
and began supervising him, he and Lord jointly called to her attention a work
11 Glasgow v. Georgia-Pac. Corp., 103 Wn.2d 401,406,693 P.2d 708 (1985).
12 See, e.g., Loeffelholz, 175 Wn.2d at 275; Antonius, 153 Wn.2d at 259; Alonso v. Qwest Commc'ns Co., LLC, 178 Wn. App. 734, 740, 315 P.3d 610 (2013); Davis v. Fred's Appliance, Inc., 171 Wn. App. 348, 362, 287 P.3d 51 (2012); Davis v. W. One Auto. Grp., 140 Wn. App. 449, 453,457, 166 P.3d 807 (2007).
13 SeeCrownover v. Dep't of Transp., 165 Wn. App. 131, 144-45, 265 P.3d 971 (2011).
14 See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1117(9th Cir. 2004).
5 No. 75471-8-1/6
matter. Coles stated that she exhibited a "very aggressive tone" with them.15
Lord also described Binder's reaction as rude and crass, which made him feel
that he was being treated differently than other employees.16 Although they did
not believe at the time that this treatment was due to their sexual orientation, they
later concluded that this and other harassing treatment by her were due to their
sexual orientation.17
Another example of her allegedly harassing behavior involved an incident
where she "called out" Coles and Lord for taking morning rest breaks from work.
This incident occurred during a "pillar meeting" involving Binder, Coles, Lord, and
others in the management group. The "pillar" group was comprised of a few
employees tasked to create ideas for Kam-Way's growth and development. Lord
testified that this treatment was directed at him and Coles due to their sexual
orientation because other employees, who took similar breaks, were not
challenged.18
A further example involving Binder occurred when Kam-Way's CEO,
Kamaljit Sihota, terminated Lord's employment in March 2011 during a meeting
with Lord and Binder. Lord attributed the firing to Binder's homophobic
sentiment.18
15 Clerk's Papers at 236.
16 Id. at 180, 261-62.
17 Id. at 181.
18 Id.
19 Id. at 188-89. 6 No. 75471-8-1/7
Lord also testified to discriminatory acts and comments by others at Kam-
Way. Specifically, KamaIjit forwarded an e-mail to a group of employees,
including Lord, in 2010. The e-mail contained a derogatory phrase regarding
homosexuals.
Lord also testified that KamaIjit inappropriately discussed with him his
sexual exploits with women.
Coles also testified at deposition to harassment based on sexual
orientation. He likewise testified to the incident at the "pillar group" meeting in
which Binder "called [them] out" for taking morning breaks when others were not
similarly called out for taking breaks. These and other incidents involving Binder
led him to believe that her actions were directed to him as "a direct reflection of
[him] being gay."2°
Coles also saw the e-mail to which Lord testified where a derogatory term
for homosexuals was used.21
Additionally, Kam-Way COO, Herman Sihota, referred to Coles by a
derogatory name outside his presence after his interview. Herman also made
derogatory remarks or jokes in his presence stating, for example,"don't be gay."
There is also other evidence in this record regarding this element of the
hostile work environment claims. Sherrie Determan, a former employee of Kam-
Way, testified that:
2° Id. at 240.
21 Id. at 240-41.
7 No. 75471-8-1/8
Binder would constantly target Coles, nit-picking every detail of his work, calling him out in front of other employees for alleged mistakes. Based on Binder's treatment of Coles, it was clear to me that Binder had an issue with Coles. Binder did not target other heterosexual employees in the same manner.122]
Overall, the conduct we just discussed constitutes unwelcome harassment
because Coles and Lord each found it to be offensive and on the basis of their
sexual orientation. Thus, they established this element of their hostile work
environment claims. Notably, Kam-Way does not dispute this in its briefing.
Harassment of Protected Class
Coles and Lord also argue that they established this element of their
hostile work environment claim. We again agree.
To establish this element, an employee must produce evidence supporting
a reasonable inference that his or her protected class status was the motivating
factor for the harassing conduct.23 The employee "must prove the conduct would
not have occurred had the employee been [outside of the protected class]."24 A
jury could reasonably conclude that subjecting an employee to "derogatory
[sexual orientation] name-calling [i]s motivated by [discriminatory] reasons."25
22 Id. at 432, ¶14.
23 Alonso, 178 Wn. App. at 749.
24 Crownover, 165 Wn. App. at 146.
25 Alonso, 178 Wn. App. at 750.
8 No. 75471-8-1/9
A work environment may be considered hostile even if offensive
comments are not made directly to the employee.26 "[VV]hen evidence
establishes the employer's animus toward the class to which the plaintiff belongs,
the inference to the fact of discrimination against the plaintiff is sufficiently small .
"27 Additionally, "[i]f[sexual orientation] animus motivates a harasser to make
provocative comments in the presence of an individual in order to anger and
harass him, such comments are highly relevant. . . , regardless of the identity of
the person to whom the comments were superficially directed."28 Thus, a
reasonable juror could infer that an employee's protected class status motivated
an employer's harassing comment to a group of employees if the employer
"conceivably intended it to have special meaning" for that employee within the
group.29
Here, Coles and Lord produced evidence supporting a reasonable
inference that their sexual orientation motivated some of the harassing conduct.
First, both Coles and Lord testified at deposition regarding interactions
with Binder and why they believed they were discriminatory on the basis of their
sexual orientation. In Binder's deposition, she testified either to not recalling
26 See Equal Emp't Opportunity Comm'n v. Swissport Fueling, Inc., 916 F. Supp. 2d 1005, 1023(D. Ariz. 2013).
27 Coqhlan v. Am. Seafoods Co. LLC., 413 F.3d 1090, 1095 n.6 (9th Cir. 2005).
28 McGinest, 360 F.3d at 1118.
29 See Loeffelholz, 175 Wn.2d at 276.
9 No. 75471-8-1/10
certain incidents or that they were not based on discrimination. This conflict in
evidence is to be resolved by a trial, not by summary judgment.
Furthermore, the e-mail that Kamaljit forwarded to a group of employees,
including Lord, contained a derogatory phrase about homosexuals. Kamaljit
explained that he sent the e-mail because it contained a photograph that he
wanted the employees to see. He later sent an e-mail to the employees to
"disregard" it when he "realized" that the e-mail contained the derogatory phrase.
That Kamaljit may have inadvertently sent an e-mail that was derogatory
to homosexuals does not obviate his doing so in the first place. Lord received
the e-mail and showed it to Coles. The harm was done. A jury could reasonably
conclude that it subjected them to derogatory name-calling specific to
homosexuals, the protected class to which they belong. A jury could also
reasonably infer that Kamaljit "conceivably intended it to have special meaning"
to Lord.3°
Lastly, a reasonable inference can also be made that Coles's sexual
orientation motivated Herman's harassing conduct. Coles and Lord presented
evidence that Herman specifically referred to Coles by a derogatory name
outside his presence. Herman also made derogatory remarks in his presence
stating, for example,"don't be gay."
Thus, on this record, Coles and Lord presented sufficient evidence to raise
a genuine issue of material fact on this element of their claims.
30 id.
10 No. 75471-8-1/11
Kam-Way argues that Herman's conduct is "irrelevant" because Coles
was not present at the time it occurred. This argument is unpersuasive.
Coles and Lord presented evidence that Herman made derogatory jokes
or remarks in Coles's presence. As for the comment made outside Coles's
presence, an employee's second-hand knowledge of a derogatory comment or
joke can impact the work environnient.31 "[A]n employee who knows that [his]
boss is saying things of this sort behind [his] back may reasonably find [his]
working environment hostile."32 Further, whether Coles became aware of this
comment during his employment is a factual issue that should be resolved by a
trier of fact.33 More significantly, whether the incidents that Coles "experienced
more directly 'would reasonably be perceived, and [were] perceived, as hostile or
abusive," in light of this comment, are factual issues that should be resolved by a
trier of fact.34
Harassment Affecting Employment Conditions
Coles and Lord also argue that they established this element of their
hostile work environment claim. We agree.
31 See Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997).
32 Torres v. Pisano, 116 F.3d 625,633(2d Cir. 1997).
Schwapp, 118 F.3d at 112.
Id. (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 22, 114 S. Ct. 367, 34 126 L. Ed. 2d 295 (1993)).
11 No. 75471-8-1/12
A hostile work environment occurs over time and is "'based on the
cumulative effect of individual acts.'"35 "Casual, isolatedbi 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."36
An employee satisfies this element if, considering the totality of the
circumstances, the harassment is sufficiently pervasive to alter the employee's
employment conditions and create an abusive working environment.37 The
conduct must be "objectively abusive" and subjectively perceived as abusive or
offensive by the employee.38 In evaluating the objective hostility of a work
environment, courts consider the "frequency and severity of harassing conduct,
whether it was physically threatening or humiliating, or merely an offensive
utterance, and whether it unreasonably interfered with the employee's work
performance."38 "[S]imple teasing, offhand comments, and isolated incidents
(unless extremely serious) will not amount to discriminatory changes in the terms
and conditions of employment.'"40
Loeffelholz, 175 Wn.2d at 273 (internal quotation marks omitted) (quoting Antonius, 153 Wn.2d at 264).
36 Glasgow, 103 Wn.2d at 406.
37 Loeffelholz, 175 Wn.2d at 275.
38 Clarke v. Att'y Gen. Office, 133 Wn. App. 767, 787, 138 P.3d 144 (2006).
39 Alonso, 178 Wn. App. at 751. 40 Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 872(9th Cir. 2001) (alteration in original)(quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 141 L. Ed. 2d 662(1998)). 12 No. 75471-8-1/13
Additionally, the conduct's level of severity or seriousness varies inversely
with the conduct's pervasiveness or frequency.41 For example,'mere utterance
of an . .. epithet which engenders offensive feelings in an employee,'... does
not sufficiently affect the conditions of employment to implicate Title VII."42 Use
of a slur towards an employee "on three separate occasions does not, as a
matter of law, reach the level of severity sufficient to create an issue of fact as to
whether a hostile work environment existed."43 But a "sustained campaign of
taunts, directed at[the employee] and designed to humiliate and anger him" is
sufficiently severe and pervasive to alter his employment conditions."
Further, a work environment may be hostile even if offensive comments
are not made directly to the employee.45 But an employee's overhearing of
sporadic, offensive remarks directed at others in the same protected class is not
enough.46
41 McGinest, 360 F.3d at 1113.
Harris, 510 U.S. at 21(1993)(citation omitted)(quoting Mentor Say. 42 Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399, 91 L. Ed. 2d 49(1986)).
43 Equal Emp't Opportunity Comm'n,916 F. Supp. 2d at 1022; see also Fred's Appliance, Inc., 171 Wn. App. at 362.
44 Nichols, 256 F.3d at 873.
45 Equal Emp't Opportunity Comm'n, 916 F. Supp. 2d at 1023.
46 See Bainbridge v. Loffredo Gardens, Inc., 378 F.3d 756, 760 (8th Cir. 2004).
13 No. 75471-8-1/14
Whether offensive comments affect employment conditions is a factual
question.47 Humiliation, emotional distress, absence from work, or "friction" with
other employees are sufficient to create an "inference" that such reactions
resulted from a hostile work environment."
The employee need not prove that the harassment impaired his or her
"tangible productivity. .. .' It suffices to prove that a reasonable person
subjected to the discriminatory conduct would find. . . that the harassment so
altered working conditions as to `ma[k]e it more difficult to do the job.'"49
Here, Coles and Lord presented sufficient evidence to raise a genuine
issue of material fact on this element of their claims.
As to Binder, a rational jury could reasonably find that her actions and
comments were sufficiently pervasive to alter their employment conditions and
create an abusive working environment. Coles and Lord testified in deposition
that they left the "pillar" group due to a conflict with Binder on the day she joined
the group. Lord explained that during the pillar meeting, Binder "called [them]
out" about their breaks and "made it very obvious [that] she didn't want[them] to
be involved . . . any longer." Coles similarly testified that Binder "singled [them]
47 Alonso, 178 Wn. App. at 751.
48 See W. One Auto. Grp., 140 Wn. App. at 458; see also Glasgow, 103 Wn.2d at 403; Alonso, 178 Wn. App. at 752.
49 Harris, 510 U.S. at 25(Ginsburg, J. concurring)(some alterations in original) (citation omitted)(quoting Davis v. Monsanto Chem. Co., 858 F.2d 345, 349 (6th Cir. 1988)).
14 No. 75471-8-1/15
out for taking inappropriate breaks" and that they felt uncomfortable in the group.
He also testified that "[t]here was a definite clash" with Binder.
Both Coles and Lord testified to their beliefs that Binder targeted them
during this meeting due to their sexual orientation. And despite Kamaljit's
testimony that he terminated Coles's and Lord's employment, Coles and Lord
testified to their beliefs that Binder was involved in that termination due to their
sexual orientation.
Additionally, a rational jury could reasonably find that Herman's derogatory
jokes or remarks in and outside Coles's presence were pervasive enough to alter
his employment conditions. The record shows that Herman made a single
reference to Coles by a derogatory name outside his presence. The record does
not show the dates or frequency of Herman's other derogatory jokes or remarks.
But an employee testified by declaration that Herman "constantly" made
homosexual jokes or callous remarks in Coles's presence.
The record does not show that Coles alleged such remarks below, and it
does not show whether he heard them or obtained second-hand knowledge of
them. But as we previously stated, whether Coles became aware of Herman's
derogatory jokes or remarks during his employment is a factual issue that should
be resolved by a trier of fact.5° More significantly, whether the incidents Coles
"experienced more directly 'would reasonably be perceived, and [were]
perceived, as hostile or abusive," in light of these derogatory jokes or remarks,
50 Schwapp, 118 F.3d at 112.
15 No. 75471-8-1/16
are factual issues that should be resolved by a trier of fact.51 A rational jury could
reasonably find that these "constant" discriminatory comments were pervasive
enough to alter Coles's employment conditions.
Lastly, although the e-mail that KamaIX forwarded may not have
sufficiently affected Coles's and Lord's employment conditions, a rational jury
could reasonably find that all of these incidents, taken together, "affect[ed] the
terms or conditions of [their] employment to a sufficiently significant degree to
violate the law."52
Viewing this evidence in the light most favorable to Coles and Lord and
considering the totality of the circumstances that we have discussed, we
conclude that the trial court improperly granted summary judgment on their
hostile work environment claims. We specifically conclude that Coles and Lord
established genuine issues of material fact whether Herman's derogatory jokes
or remarks, combined with the actions of Binder and others at Kam-Way, were
sufficiently pervasive to alter Coles's and Lord's employment conditions.
Kam-Way argues that Coles and Lord failed to satisfy this element
because they experienced "minor" and "sporadic" incidents of discriminatory
conduct.53 It correctly argues that either "hostile" or "inappropriate" conduct is
51 j.çj.(quoting Harris, 510 U.S. at 22).
52 Glasgow, 103 Wn.2d at 406.
53 Brief of Respondents at 29-33.
16 No. 75471-8-1/17
immaterial without evidence that such conduct is motivated by, in this case,
homophobic animus.54
Whether there is proof of homophobic animus is the question. The trial
court's letter ruling on Coles's hostile work environment claim concludes that he
failed to show any genuine issues of material fact for the third element of his
hostile work environment claim.55 The narrow question for this element is
whether the discriminatory conduct is sufficiently pervasive that it alters the
conditions of employment and creates a hostile working environment. In its
analysis, the trial court cited portions of Coles's deposition testimony.56
While these cited excerpts are, admittedly, vague whether Binder's actions
were illegally discriminatory, they do not paint a complete picture of this record.
A close and fuller examination of the whole record regarding her activities—
which we discussed previously in this opinion—shows there are genuine issues
of material fact for trial.
The letter ruling that addresses Lord's hostile work environment claim also
cites his deposition testimony. But a close and fuller reading of the record—
which we also discussed previously in this opinion—shows there are also
genuine issues of material fact for trial.
54 Id. at 24-27.
55 Clerk's Papers at 501.
56 Id. at 502-03.
17 No. 75471-8-1/18
In sum, we read this record differently than the trial court did when
granting summary judgment of dismissal of this case.
At oral argument of this case, Kam-Way stressed the importance of
MacDonald v. Korum Ford.57 Having closely reviewed that case, we conclude
that it does not require a different result than what we reach here.
There, the main focus of that Division Two case was whether the trial
court had properly sanctioned an attorney under CR 11 for pursuing a WLAD
claim after the deposition testimony of the attorney's client.58 The facts of that
case are unlike those here. Thus, Kam-Way does not appear to argue that the
case is important for that reason. Rather, it argues that Division Two of this court
cited a number of cases for the purpose of comparing whether the facts of the
case before it were sufficiently similar to the cited cases to show that the client's
claim was proper. Division Two of this court concluded that the case before it
was unlike the cited cases.
MacDonald is not helpful. While the cases cited there speak for
themselves, each discrimination case is factually different. So we conclude that
a comparison of the cases cited there to this one, something Kam-Way has not
done in its briefing, is not helpful to our analysis.
57 80 Wn. App. 877, 912 P.2d 1052(1996).
58 Id. at 884-85.
18 No. 75471-8-1/19
Imputing Harassment to Employer
Coles and Lord argue that harassing conduct is imputable to Kam-Way.
We agree.
Harassment may be imputed to the employer in one of two ways.59 First,
the harassment may be automatically imputed if a manager participated in the
harassment.69 In this situation, "the manager's rank in the company's hierarchy
must be high enough that the manager is the employer's alter ego."61 For
summary judgment purposes, employees with authority to affect employee hours,
wages, and working conditions qualify as managers.62 "[A] manager is
something more than a supervisor."63
Harassment may also be imputed to the employer if the harasser is the
employee's supervisor and the employer "authorized, knew, or should have
known of the harassment and.. . failed to take reasonably prompt and adequate
corrective action.'"64 A supervisor can hire, fire, and promote an employee.65
59 Fred's Appliance, Inc., 171 Wn. App. at 362.
60 See id.
61 Id. at 363.
62 Alonso, 178 Wn. App. at 752.
63 Hennindsen v. Worldcom, Inc., 102 Wn. App. 828, 838, 9 P.3d 948 (2000).
64Fred's Appliance, Inc., 171 Wn. App. at 362(alteration in original) (quoting Glasgow, 103 Wn.2d at 407).
65 Vance v. Ball State Univ., 133 S. Ct. 2434, 2443, 186 L. Ed. 2d 565 (2013).
19 No. 75471-8-1/20
Here, Kam-Way does not dispute that Coles and Lord satisfied this
element. Kam-Way is a family business,founded by KamaIjit and his wife.
KamaIA is the CEO and terminated Coles's and Lord's employment. KamaIjit's
brother, Herman, worked as the COO and trained Coles. Binder supervised
Coles, worked as the CFO, and helped Herman develop human resources
policies and procedures. She and Herman also rated Coles's work performance.
KamaIA, Herman, and Binder rank high enough in the Kam-Way hierarchy
to constitute Kam-Way's "alter ego."66 Thus, their conduct can be automatically
imputed to Kam-Way. Kam-Way does not argue otherwise.
Overall, Coles and Lord established genuine issues of material fact for all
four elements of their hostile work environment claims. Accordingly, the trial
court improperly granted summary judgment on these claims.
Retaliation
Coles and Lord also argue that the trial court erroneously dismissed their
retaliation claims. We disagree.
RCW 49.60.210(1) prohibits discrimination against an employee "because
he or she has opposed any practices forbidden by this chapter, or because he or
she has filed a charge. . . under [the WLAD]."
66 Fred's Appliance, Inc., 171 Wn. App. at 363. 20 No. 75471-8-1/21
The McDonnell Douglas Corp. v. Green67 burden-shifting framework
applies to retaliation claims.68 Under this framework, the plaintiff must initially
establish a prima facie case of discrimination to survive summary judgment.69
To establish a prima facie case for retaliation, "an employee must show
that(1) he engaged in a statutorily protected activity,(2) the employer took an
adverse employment action against the employee, and (3) there is a causal
connection between the employee's activity and the employer's adverse
action."7°
The absence of a genuine issue of material fact for a necessary element
of a claim makes factual disputes over other elements immaterial for summary
judgment purposes.71
Here, Coles and Lord fail to establish a prima facie case. The trial court
properly granted summary judgment.
Statutorily Protected Opposition Activity
Coles and Lord argue that they engaged in protected activity. We
disagree.
67 411 U.S. 792,93 S. Ct. 1817,36 L. Ed. 2d 668 (1973).
68 See Hollenback v. Shriners Hosps. for Children, 149 Wn. App. 810, 823, 206 P.3d 337(2009).
69 See Scrivener, 181 VVn.2d at 446. 70 Boyd v. Dep't of Soc. & Health Servs., 187 Wn. App. 1, 11-12, 349 P.3d 864 (2015).
71 See Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).
21 No. 75471-8-1/22
"An employee engages in WLAD-protected activity when he opposes
employment practices forbidden by antidiscrimination law or other practices that
he reasonably believed to be discriminatory."72 "A general complaint about an
employer's unfair conduct does not rise to the level of protected activity in a
discrimination action under WLAD absent some reference to the plaintiffs
protected status."73
Here, Coles and Lord argue that they engaged in protected activity by
raising concerns about Binder's conduct. They claim that they specifically raised
concerns about Binder's harassment and her "targeting of Coles."
But this record does not show that they complained about discrimination
based on their sexual orientation. Although they testified to their beliefs that
Binder discriminated against them due to their sexual orientation, the record does
not show that they mentioned discrimination or their sexual orientation in these
discussions. Thus, Coles and Lord fail to show that they engaged in WLAD-
protected activities.
Their reply brief contains a list of complaints made together with citations
to the record. Noticeably absent from this is any mention of sexual orientation
discrimination. This is fatal to their claims of retaliation because an employee
must demonstrate his or her reasonable belief that the employment practice is
actually discriminatory towards their protected status.74 They fail to do so.
72 Alonso, 178 Wn. App. at 754.
73 Id.
74 See id. 22 No. 75471-8-1/23
Because they fail to establish a genuine issue of material fact for the first
necessary element of their retaliation claims, we need not address the other
two.75
STATUTE OF LIMITATATIONS
Kam-Way argues that the statute of limitations bars the hostile work
environment claims. We do not reach this issue.
First, the record reflects that the trial court denied summary judgment to
Kam-Way on this issue. Kam-Way did not cross-appeal that adverse ruling.
Thus, the propriety of that order is not before us.
Second, we reject Kam-Way's alternative argument: that we may affirm
the grant of summary judgment of dismissal on the order that is properly before
us on the alternative ground that the statute of limitations bars these claims. The
principle that we may affirm on any ground supported by the record does not
apply here. We cannot be certain what the record contained at the time of denial
of summary judgment based on the statute of limitations.
MOTION FOR RECONSIDERATION
Coles and Lord also argue that the trial court abused its discretion in
denying their CR 59 motion and striking certain evidence in support of that
motion. Because we reverse and remand for further proceedings on the hostile
work environment claims, we need not address this argument.
75 Id. 23 No. 75471-8-1/24
ABANDONED CLAIMS
Coles and Lord assign error to the trial court's dismissal of their other
claims: wrongful termination, respondeat superior, negligent supervision, and
emotional distress. Because they do not sufficiently discuss these claims in their
briefing in this appeal, we deem these claims abandoned.78
ATTORNEY FEES ON APPEAL
Coles and Lord seek an award of attorney fees on appeal pursuant to
RCW 49.60.030(2). We deny this request, without prejudice, because it is
premature.
RCW 49.60.030(2) provides that a WLAD claimant can "recover the actual
damages sustained," together with the suit costs, including reasonable attorney •
fees.
A party must prevail on his or her claim to receive attorney fees.77 "Where
a party has succeeded on appeal but has not yet prevailed on the merits, the
court should defer to the trial court to award attorney fees."78
Here, Coles and Lord have not yet prevailed because there has been no
trial. They are "not yet entitled to attorney fees under RCW 49.60.030(2), if at all
. ..[because]this case has not yet been tried on the merits."78 Accordingly, we
Podbielancik v. LPP Mortg. Ltd., 191 Wn. App. 662, 668, 362 P.3d 78 See 1287 (2015); RAP 10.3(a)(6).
77 RAP 14.2.
78 Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 153, 94 P.3d 930 (2004). .
79 Dowler v. Clover Park Sch. Dist., 172 Wn.2d 471,486, 258 P.3d 676 (2011). 24 No. 75471-8-1/25
deny this request, without prejudice, as premature. The trial court will decide
whether such fees should be awarded following trial.
We affirm the trial court's grant of summary judgment on the retaliation
claims. We reverse the trial court's dismissal of the hostile work environment
claims and remand for further proceedings. We deny, without prejudice, the
request for attorney fees on appeal as premature.
WE CONCUR:
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