Marie-caroline Moir v. Seattle Central College

• Court: Court of Appeals of Washington
• Decided: October 21, 2019
• Docket: 78362-9
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

MARIE-CAROLINE MOIR, No. 78362-9-I Appellant, DIVISION ONE V. UNPUBLISHED OPINION SEATTLE CENTRAL COLLEGE, an agency of the State of Washington, FILED: October 21, 2019 Respondent.

APPELWICK, C.J. — Moir appeals the summary judgment dismissal of her

hostile work environment sexual harassment claim. Because no genuine issue of

material fact precluded dismissal of Moir’s claim, we affirm.

FACTS

In 2008, Marie-Caroline Moir began working as a part-time faculty member

in the English Department at Seattle Central College (SCC). Douglas Cole, who

had worked at SCC since 1990, was a full-time tenured faculty member in the

same department.

In August 2012, Cole unexpectedly kissed Moir while the two were in his

office. Moir pushed Cole away because the kiss was unwelcome. Days later, Cole

sent Moir several crude and sexually graphic e-mails. In response, Moir told Cole

that his e-mails were gross. She did not report Cole’s unwanted kiss or his

inappropriate e-mails to SCC at that time. No. 78362-9-112

In October 2012, Cole sent sexually-oriented text messages to Moir’s

mobile phone. Moir responded to Cole by texting, “Stop.”1 Moir did not then inform

anyone at SCC about Cole’s text messages.

In spring 2014, Cole regularly greeted Moir by saying, “Hey, sexy” or “Hi,

gorgeous,” complimented Moir’s appearance and clothing, “visually appraised

[her] from top to bottom,” and once “caressed [her] arm up and down with the back

of his hand several times.” Moir did not notify SCC about Cole’s comments or

behavior at the time of his conduct.

In October 2014, after receiving an unwanted hug from Cole at an off-

campus memorial service, Moir told Phebe Jewell about Cole’s prior inappropriate

behavior.2 On October 27, Jewell informed SCC’s dean of Humanities and Social

Sciences, Bradly Lane, that multiple female faculty in the English department—

who wished to remain anonymous—stated Cole engaged in sexualized workplace

behavior toward them. Moir was the only female faculty member who met with

Lane to discuss specific concerns about Cole.

On October 28, 2014, Lane spoke with Cole “about [Cole’s] allegedly

sexualized behavior, though [Cole] was not aware of the identity of anyone who

had expressed concerns.” Lane instructed Cole to (1) “set clear boundaries

between himself and younger female members of the department,” (2) “redouble

At that point, Cole stopped sending Moir sexually graphic writings. Between January and March 2013, however, Cole sent Moir three non-sexual text messages during faculty meetings. Moir did not report these text messages to anyone at SCC. For the remainder of 2013, Moir had little to no interaction with Cole. 2 Jewell was Chair of the English Department—a position that served an

“organizational,” rather than a managerial or supervisory, role at SCC.

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his efforts to set clear parameters when interacting with colleagues,” and (3)

“remain professional with his colleagues at all times.” Cole then stopped

communicating with Moir in a sexually explicit manner. He also stopped touching

Moir and looking at her appraisingly.

Between October28 and November 13, 2014, Cole glared or stared at Moir

on two occasions without saying anything. Cole also sat across from Moir at a

faculty meeting and spread his legs and pointed his crotch in Moir’s direction.

On November 13, 2014, Moir met with Lane “to make a formal complaint

about Cole.”3 During this meeting, Moir showed Lane the October 2012 text

messages and e-mails Cole sent her and told Lane about Cole’s sexualized

behavior in spring 2014. Moir also told Lane that her ability to work had been

affected because she tried to avoid interacting with Cole. Based on the record,

Moir did not notify Lane of Cole’s then recent instances of glaring and pointing his

crotch at her. Lane told Moir that she should file a formal complaint against Cole.

The record does not contain a formal written complaint from Moir. However, a few

days later, Lane forwarded Moir’s request to file a formal complaint to SCC’s

human resources administrator, Kathryn Woodley.

SCC then commenced a lengthy investigation of Cole’s conduct that

concluded in July 2015.~ In June 2015, an external investigator found, by “clear

~ Moir called JewelI’s October 27, 2014 discussion with Lane an “informal complaint” but referenced her November 13, 2014 meeting with Lane as a “formal complaint.” ~ Moirgrewfrustrated about the length of SCC’s investigation and, in March 2015, “filed an official union grievance” against Cole. Moir’s grievance was heard later that month. During the hearing, Moir was informed that SCC “fully embrace[dJ and ha[d] already implemented the remedies sought by the grievance including:

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and convincing evidence,” that Cole engaged in sexually explicit communications,

and inappropriate, unwelcome touching and attention toward Moir and other faculty

members.

In July 2015, Charles Sims, the Seattle College District’s chief human

resources officer, after meeting with Moir and Cole, agreed with the investigator’s

“conclusions that ‘the evidence clearly and convincingly supported all of the

allegations of inappropriate and sexualized behavior by Cole toward Moir. . . and

others.” Despite this conclusion, Sims noted that “Cole is shielded from formal

disciplinary action by a provision in the faculty collective bargaining agreement,

with which management admittedly failed to comply in providing Mr. Cole with a

timely notification of the complaint filed by Ms. Moir in November of 2014.”~ Sims

then formally closed Moir’s complaint by ordering “remedies that were put in place

during the investigation [to] be continued on a permanent basis,” including, among

others, the following:

Mr. Cole will remain under the “no contact” order regarding Ms. [Moir]. Anything beyond essential communications that are job related, without consent by Ms. Cole, will be considered a violation

Updating Ms. Moir on the current status of her complaint of sexual harassment by a faculty, [and] assuring her that the complaint is being fully investigated by an external investigator retained by the college.” ~ Sims also noted that”[r]egardless of the College’s ability to impose formal discipline on Mr. Cole at this time, . .[t]he hurt, fear and anxiety, emotional .

distress, and general disrespect that he has inflicted on his colleagues cannot simply be ignored and dismissed.” Given Cole’s past behavior, Sims determined that if Cole “commits any future violations of the rights of his colleagues or of students to teach and learn without fear of harassment or any form of threat or retaliation by him, his career as a tenured faculty with the district will be over.”

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of the no contact condition, and will result in immediate corrective action up to and including termination.~61 In spring 2016, while exiting a bathroom, Cole smiled at Moir, raised an

eyebrow and wagged his head at Moir, as she walked down a hallway. On another

occasion he called out to Moir as she walked by the mailroom and offered her a

1970’s social science textbook, commenting that he thought she could use it for

one of her classes. On March 17, 2016, Moir e-mailed Lane and other SCC

administrators to report Cole’s violation of the “no contact” order.7 Less than an

hour later, Lane responded and offered to meet Moir to “address [her] concerns”

with Cole. Moir and Lane met on March 21, 2016. Afterward, Moir e-mailed a

colleague and expressed that her meeting with Lane “went VERY well” and said,

“[Lane] seems super-committed to addressing the [Cole] issues, and FINALLY a

note will appear in his file. If he does anything else, he will be terminated. :)“8

In November 2016, Moir filed a sex discrimination suit against SCC, alleging

she was subjected to hostile work environment sexual harassment by Cole, in

violation of the Washington Law Against Discrimination (WLAD), chapter 49.60

RCW. SCC moved for summary judgment, arguing that it was not vicariously liable

for Cole’s misconduct. Concluding that SCC’s response to Cole’s misconduct was

6 To the extent SCC put in place a temporary “no contact” order prior to Sims making such order permanent, the effective date of that temporary order is not reflected in the record. Nor does the record contain any allegations from Moir that Cole violated a temporary no contact order. ~ At this point, Lane had been promoted to Executive Dean for Academic Affairs at SCC. 8 Moir’s e-mail also contained a smiley face emoji. An “emoji” is a symbol or image used in electronic communication to convey information about the writer’s emotions.

5 No. 78362-9-116

adequate as a matter of law, the trial court granted SCC’s motion and dismissed

Moir’s lawsuit.

Moir appeals.

DISCUSSION

Moir assigns error to the trial court’s summary judgment dismissal of her

hostile work environment sexual harassment claim.

We review summary judgment orders de novo and engage in the same

inquiry as the trial court. See Youngblood v. Schireman, 53 Wn. App. 95, 99, 765

P.2d 1312 (1988). Summary judgment is appropriate ‘when there are no genuine

issues of material fact and the moving party is entitled to judgment as a matter of

law.”9 Camicia v. Howard S. Wright Constr. Co., 179 Wn.2d 684, 693, 317 P.3d

987 (2014); CR 56(c). On review, we look at the facts in the light most favorable

to the nonmoving party. Camicia, 179 Wn.2d at 693 n.4.

I. Sexual Harassment Claim

Under the WLAD, Washington courts recognize two types of sex

discrimination claims: the quid pro quo sexual harassment claim and the hostile

work environment claim. Antonius v. King County, 153 Wn.2d 256, 261, 103 P.3d

729 (2004). Here, Moir asserts a hostile work environment claim, an action in

which the employee seeks to hold the employer responsible for a hostile work

environment caused by a supervisor or co-worker’s sexual harassment of the

~ A material fact is one upon which the outcome of the litigation depends. Greater Harbor 2000 v. City of Seattle, 132 Wn.2d 267, 279, 937 P.2d 1082 (1997).

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employee. Glasgow v. Georgia-Pac. Corp., 103 Wn.2d 401, 405, 693 P.2d 708

(1985).

To establish a hostile work environment claim, Moir must present evidence

that the harassment (1) was offensive and unwelcome; (2) was because of sex or

gender; (3) affected the terms or conditions of employment; and (4) is imputed to

the employer. Washington v. Boeing Co., 105 Wn. App. 1, 10, 19 P.3d 1041

(2000). The failure to provide competent evidence of any one of the mandatory

elements of a prima facie case is fatal to a workplace discrimination suit. See

Sangster v. Albertson’s, Inc., 99 Wn. App. 156, 160, 991 P.2d 674 (2000).

Moir alleges she suffered sexual harassment three times in the weeks

following her October2014 “reporting of events” to Jewell. She argues, during this

time, Cole stared or glared at her twice and sat across from her in a department

meeting with his legs spread and pointing his crotch at her. Moir also claims Cole

harassed her twice in spring 2016, when he offered her a book and “when smiling

and raising his eyebrows and wagging his head at her from the bathroom door.”

Agreeing for purposes of summary judgment that Moir could establish

issues of material fact regarding the first three elements, the parties focus their

arguments on the fourth element: imputation—i.e., whether Cole’s conduct may be

imputed to SCC. Washington courts recognize two ways to impute harassment to

an employer. Boeing, 105 Wn. App. at 11. First, a manager or owner may

personally participate in the harassment. j~ Second, if the harasser is not in

management, the harassment is imputable only if “the employer (1) authorized,

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knew, or should have known of the harassment and (2) failed to take reasonably

prompt and adequate corrective action.”

A. Imputation: Adequacy of Employer’s Corrective Action

Here, Moir contends that Cole’s conduct is imputable to SCC because SCC

was aware of the harassment and “failed to take prompt and adequate action.”

Based on the evidence set forth in the record, we disagree.

There is no evidence in the record to indicate that SCC was contemporaneously aware of (1) the sexually graphic e-mails and text messages

Cole sent Moir in 2012, (2) Cole’s spring 2014 sexualized comments and behavior,

or (3) Cole’s unwelcomed hugging of Moir in October 2014. Rather, the facts show

that SCC only became aware of Cole’s inappropriate sexualized conduct on

October 27, 2014. The next day, on October 28, 2014, SCC admonished Cole for

his sexualized behavior toward other staff members. Thereafter, the evidence

shows that Cole did not send Moir any more sexually explicit writings, make

inappropriate sexualized comments toward her, or touch her again. As to Cole’s

sexually explicit conduct, we conclude SCC’s response was adequate.

Next, regarding Cole’s glaring and crotch-pointing at Moir1° between

October 28 and November 13, 2014, the evidence on record does not show that

10 Moir cites Perry v. Costco Wholesale, Inc., 123 Wn. App. 783, 98 P.3d 1264 (2004), to argue that Cole’s glaring at her and sitting with his legs apart during a meeting was a continuation of his sexual harassment. We need not analyze this argument because, for purposes of summary judgment and viewing the facts in the light most favorable to Moir, we assume Moir would be able to establish Cole’s conduct as sexual harassment. Additionally, this position is consistent with the parties’ arguments and concessions below that the first three elements of Moir’s hostile work environment claim could be met.

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Moir reported such conduct as ongoing harassment to SCC. Absent such notice,

Cole’s conduct cannot be imputed to SCC and SCC was under no obligation to

take any action. Perry v. Costco Wholesale, Inc., 123 Wn. App. 783, 793, 98 P.3d

1264 (2004) (employer’s obligation to take corrective action is triggered upon the

employer having ‘actual knowledge through higher managerial or supervisory

personnel of a complaint of sexual harassment”).

Even assuming arguendo that Moir disclosed Cole’s act of glaring and

crotch-pointing at her to SCC, the evidence establishes that SCC took adequate

corrective action to quell any additional similar conduct. The record indicates that

Moir did not complain about any further contact from Cole during the pendency of

SCC’s investigation. Then, at the conclusion of SCC’s investigation in July 2015,

SCC imposed a permanent order that Cole have no contact with Moir under the

threat of corrective action by SCC. We conclude that SCC’s corrective action was

adequate to address Cole’s conduct to that point.

Lastly, Moir does not offer any argument or authority to support the notion

that Cole’s spring 2016 acts of wagging his head at her and offering her a book

should be imputed to SCC. But, even if she had done so, the record indicates

SCC responded appropriately to Cole’s violations of the no contact order. Less

than an hour after Moir informed SCC about being contacted by Cole, Lane

arranged a meeting with her to discuss it further. After meeting with Lane, Moir

appeared to be satisfied upon learning that “FINALLY a note will appear in [Cole’s

personnel] file” and that “[i]f he does anything else, he will be terminated. :)“

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(Emphasis added.) Based on this record, we conclude that SOC’s response to

Cole’s March 2016 violations of the no contact order was adequate.

B. Delay of Investigation and Severity of Discipline

Moir also contends that “SCC’s egregious delay in investigating, which

ultimately in [sic] Cole’s receiving no discipline, does not represent a reasonable

response by SOC.” We disagree. Moir’s dissatisfaction with SOC’s inability to

formally discipline Cole “is not evidence [that SCO’s] response was unreasonable.”

Francom v. Costco Wholesale Corp., 98Wn. App. 845, 857, 991 P.2d 1182(2000).

Sims noted that the failure to give Cole notice limited formal disciplinary action

under the “faculty collective bargaining agreement.” These collective bargaining

provisions are not enumerated in the record. However., the record is clear that the

failure to provide the initial notice to Cole did not preclude all discipline or preclude

SCC from taking action to stop the conduct.

SCC “was required only to take whatever action was reasonably likely to

prevent further harassment.” ki. Here, the evidence shows that SCC’s actions did

so. After SCC admonished Cole in October 2014, Moir was not subjected to any

additional sexually graphic communications, appraising looks, or unwelcomed

touches. After SCC imposed a “no contact” order in 2015, Moir reported in March

2016 a nonverbal facial movement while passing in the hall and a verbal contact

about a textbook. SCC promptly reprimanded Cole for contacting Moir and Moir

was not contacted by Cole again. The fact that the inappropriate conduct stopped

is proof that SCC’s response was reasonable and adequate as a matter of law.

II. Attorney Fees on Appeal

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SCC asks this court for an award of attorney fees and costs on appeal

pursuant to RAP 18.1. Because SCC provides no meaningful argument or citation

to authority showing that it is entitled to attorney fees, SCC fails to comply with the

requirements of RAP 18.1. We decline SCC’s request.

CONCLUSION

Moir demonstrated no genuine issue of material fact to support imputing her

hostile work environment claim to her employer. The trial court properly dismissed

her complaint on summary judgment.

Accordingly, we affirm.

/ /‘ / , I WE CONCUR:

p.