Opinion
No. 51962-0-I.
Filed: May 3, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 01-2-26889-9. Judgment or order under review. Date filed: 02/07/2003. Judge signing: Hon. Linda Lau.
Counsel for Appellant(s), Jay Kinney, Attorney at Law, Ste 1928 One Union Sq, 600 University St, Seattle, WA 98101-1176.
Donna L MacK, Grutz Scott Kinney Fjelstad, 600 University St. Ste 1928, Seattle, WA 98101-4115.
Counsel for Respondent(s), Scott W. Campbell, Chism Thiel McCafferty Campbell PLLC, 2001 Western Ave Ste 430, Seattle, WA 98121-3132.
Tanisha Barker appeals a decision dismissing her claim of a hostile work environment based upon gender and race and granting summary judgment in favor of respondent W.A. Botting. Finding no evidence in the record that would justify a trial, we affirm.
Review of an order granting summary judgment is de novo and the reviewing court engages in the same inquiry as the trial court. DeWater v. State, 130 Wn.2d 128, 133, 921 P.2d 1059 (1996). All facts and reasonable inferences are considered in the light most favorable to the non-moving party. Washington v. Boeing Company, 105 Wn. App. 1, 7, 19 P.3d 1041 (2001).
W.A. Botting is a mechanical contracting business that provides plumbing, pipefitting, refrigeration and related services to businesses and institutions throughout the greater Seattle area. In August 1998, Botting contacted the Joint Apprenticeship Training Committee to request a plumber's helper for the Starwood Hotel Project. The Joint Committee, a cooperative effort of labor and management, runs a 5-year apprentice program to train journeyman plumbers.
Tanisha Barker applied for admission into the apprentice program. While her application was pending, the Joint Committee dispatched her to work as a plumber's helper at Botting's Starwood Hotel site. Barker is an African-American woman. There were few, if any, other women in her work environment, and few women of color on the entire project.
Before Barker began her employment, Botting provided her with the company's safety and work rules, including an anti-discrimination policy. Barker read and signed a written copy. The rules clearly state `Sexual harassment will not be tolerated.' They contain an assurance `of our continuous commitment to equal opportunity and fair employment practices', and provide for progressive discipline for violations:
FIRST VIOLATION — Employee will be given written Notice of Violation, with a copy to the Company Safety Director. The site Supervisor will thoroughly explain the infraction to the employee in the presence of the Job Steward, and assist the employee to prevent recurrence.
SECOND VIOLATION — Employee will be given written Notice of Violation, with a copy to the Company Safety Director. The site Supervisor will thoroughly explain the infraction to the employee in the presence of the Job Steward, and again assist the employee in any way possible to prevent recurrence.
THIRD VIOLATION — Will result in termination of employment, with a copy going to the Company Safety Director and appropriate Union personnel.
Clerk's Papers at 13.
Rolan Jeans was the foreperson of the eight-person crew that Barker joined at the Starwood Hotel project. Barker testified that in the dryshack where the workers would take their breaks, Jeans and others made many degrading comments about women. Barker said that Jeans directed many of these comments to black women in particular.
After Barker had been on the job about a month, apprentice Joe Marks slapped her on the buttocks and commented that it felt good. On other occasions Marks touched her buttocks with pipes. Barker reported the slapping incident to Jeans, who took the matter up with Marks. Jeans told Marks that such behavior could cost him his job and to stay away from Barker. After this conversation, Marks did in fact stay away from Barker and the inappropriate touching and comments ceased. But according to Barker, that was when `the work environment really became hostile, because there were rumors going around that I was lying and that I was just trying to get this guy kicked out of apprenticeship that he was just accepted into.'
Clerk's Papers at 235-36.
Barker testified that near the end of her third month at the hotel jobsite, she walked into the dryshack and heard Jeans relating a story to at least five coworkers about a man who was caught having sexual intercourse with a sheep. Barker left the dryshack. Aaron Noser, who remained in the dryshack, testified that after Barker left, Jeans remarked to him that a farm animal would be preferable to Barker as a sexual partner. Noser told Barker about the comment, and she confronted Jeans who denied making the comment. Barker then reported the incident to the Botting project manager, John Solem. Solem met with Barker, Jeans, and Noser to discuss the incident. Solem made it clear to Jeans that such comments were unacceptable, and sent Jeans home for the rest of that day. On his way out of the worksite, Jeans told many individuals what had happened. Solem told Barker to take some time off and told her `we want you to stay with the company.'
Clerk's Papers at 248-49.
Clerk's Papers at 43.
Greg Denhert, Botting's field superintendent, received notice of the incident, and so did the union shop steward, who in turn contacted the apprenticeship coordinator for the Joint Committee. The next working day following the incident, Denhert went to the jobsite and held a meeting with Jeans. The shop steward and the apprenticeship coordinator participated in this meeting. Denhert informed Jeans that his conduct was unacceptable, contrary to company policy and would not be tolerated. Denhert followed up with a letter of formal reprimand making clear that such conduct if repeated would be grounds for termination. The letter strongly suggested that Jeans enroll in a sensitivity training class. Jeans attended the recommended sensitivity classes and Barker testified that after this meeting, Jeans did not harass her again.
Barker was at first unsure whether she wanted to continue working for Botting at the Starwood site. After considering the option of going to work for another contractor, she chose to stay with Botting and accepted a transfer to their shop. Botting sent her to another project site as a plumber's helper on an as-needed basis. At that jobsite, she injured her back and was not able to return to work for three months. In the meantime, Botting's workload declined and the company scheduled a reduction in force. Botting decided that Barker would be subject to the reduction in force and terminated her at the end of April, 1999. Botting did not replace Barker. Although she continued in the plumbing apprenticeship program, she found that she had negative work experiences when assigned to worksites where her co-workers had heard about her experience at Botting. She eventually concluded she had gotten a bad reputation as a troublemaker as a result of the incident involving Jeans and that it would follow her and cause problems throughout her apprenticeship. Feeling emotionally and physically exhausted by her apprenticeship experiences, Barker resigned voluntarily. She now works as a kidney dialysis technician.
Barker filed suit against Botting in September, 2001, alleging, inter alia, that the work environment was hostile to her because of her gender and race. The trial court granted Botting's motion for summary judgment and dismissed all claims. Barker appeals.
To establish a prima facie case for hostile work environment, a plaintiff must establish that (1) the harassment was offensive and unwelcome; (2) it occurred because of race, sex, or gender; (3) it affected the terms or conditions of employment, and (4) it can be imputed to the employer. Washington v. Boeing, 105 Wn. App. 1, 10, 12-13, 19 P.3d 1041 (2000). Botting does not dispute that Barker has met the first two elements. The only elements in dispute are whether the misconduct was sufficiently severe and pervasive to affect the terms or conditions of her employment, and whether the misconduct can be imputed to Botting.
EFFECT ON TERMS AND CONDITIONS OF EMPLOYMENT
Whether the harassment affects the terms and conditions of employment is determined by examining the totality of the circumstances. Glasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 406-407, 693 P.2d 708 (1985). 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. Glasgow, 103 Wn.2d at 406. The misconduct in this case was by Barker's co-worker, who touched her buttocks and made harassing remarks; and by Jeans, who made the demeaning remark comparing Barker to a farm animal. Barker also testified that before Jeans' remark in the dryshack, Jeans and others made many derogatory remarks about women, and black women in particular. Noser, Barker's co-worker on the Starwood Hotel project, agreed that Jeans made inappropriate comments often.
In Glasgow, the Court found that two female plaintiffs met their burden of production to show an effect on the terms and conditions of employment with evidence that a male co-worker touched or fondled or stared at them in an unwanted sexual way on numerous occasions over a three year period. Glasgow, 103 Wn.2d at 402-03. Both plaintiffs suffered severe emotional distress demonstrated by physical symptoms as a result of this harassment. Glasgow, 103 Wn.2d at 403.
Barker's evidence is considerably weaker than the plaintiffs' evidence in Glasgow. The butt-slapping incident and Jeans' vile dryshack comment, while offensive, were one-of-a-kind events that ceased when Barker complained. The evidence that Jeans and other workers made inappropriate comments about women, and black women in particular, is scant and non-specific. The `inappropriate' comments Jeans allegedly made `every other day' were loud, rude and crude remarks directed to co-workers generally. Other remarks by Jeans that Barker considered discriminatory seem to have been contemptuous of helpers because of their lowly status, not particularly based on gender or race. From the record, a factfinder might easily conclude that the Starwood Hotel site was a tense and unpleasant work environment for helpers, and that it would feel particularly alien to Barker because she was one of a very small number of women. Yet we doubt that a finder of fact, considering the totality of these circumstances in the light most favorable to Barker, could find it was an environment so pervasively discriminatory as to affect the terms and conditions of Barker's employment.
Clerk's Papers at 324-25.
Clerk's Papers at 324, 237-38, 322.
But even if the evidence is sufficient to raise a genuine issue of fact as to the effect of the harassment upon the terms and conditions of Barker's employment, her claim would still fail for lack of evidence imputing liability to Botting. Glasgow, 103 Wn.2d at 407.
The parties disagree as to the test a court should apply in order to determine whether the acts of foreman Jeans are imputed to Botting. Botting argues that the analysis set forth in Glasgow remains controlling in state cases. Under Glasgow, liability is not automatically imputed to an employer unless the harasser occupied an upper management position. See Glasgow, 103 Wn.2d at 407. Because Jeans was not in upper management, under the Glasgow framework Botting could be held vicariously liable for Jeans' misconduct only if Barker could show that Botting authorized, knew, or should have known of the misconduct and failed to take prompt and adequate remedial measures.
This may be shown by proving (a) that complaints were made to the employer through higher managerial or supervisory personnel or by proving such a pervasiveness of sexual harassment at the work place as to create an inference of the employer's knowledge or constructive knowledge of it and (b) that the employer's remedial action was not of such nature as to have been reasonably calculated to end the harassment.
Glasgow, 103 Wn.2d at 407.
Barker cannot meet this test because the evidence shows that Jeans' superior took prompt and effective action to discipline him once Barker reported the misconduct. An employer is only required to take whatever action was reasonably likely to prevent further harassment, and the fact the harassment never happened again is proof that the employer's response was reasonable and adequate as a matter of law. See Francom v. Costco Wholesale Corp., 98 Wn. App. 845, 857, 991 P.2d 1182 (2000).
Barker argues Botting should have known about the workplace misconduct long before she reported the farm animal remark because it was so pervasive. But again, apart from the incidents with Marks and Jeans, the misconduct Barker complains of consists of vague allegations of offensive comments by her co-workers over a period of three months. She does not explain how Botting's management was in a position to become aware of these comments. We conclude Barker's claim fails when analyzed under Glasgow.
Barker contends she is entitled to use the analysis adopted in Sangster v. Albertson's, Inc., 99 Wn. App. 156, 991 P.2d 674 (2000). She contends under Sangster there is a rebuttable presumption that Botting is liable for Jeans' misconduct because he was her immediate supervisor.
In Sangster, Division III of this court recognized the new framework for analyzing imputed liability in hostile work environment cases under Title VII, as set forth in Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998) and Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998). Presumptively, employers are vicariously liable for a hostile work environment created by a supervisor with immediate authority over the employee. See Burlington, 524 U.S. at 745. This presumption is subject to the affirmative defense that (1) the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (2) that the plaintiff unreasonably failed to take advantage of any preventative or corrective opportunities provided by the employer, or to avoid harm otherwise. Sangster, 99 Wn. App. at 165. Barker argues that Botting is unable to meet its burden of production on both elements of the affirmative defense set forth in Sangster.
Botting argues that the panel should not find Sangster authoritative because, as a Court of Appeals case, it cannot replace our Supreme Court's analysis in Glasgow. Barker contends Sangster does not replace Glasgow, but merely supplements it by adding another basis for imputed employer liability.
To the extent that Sangster does alter the analysis in hostile work environment claims, it does so by applying federal law that Washington courts typically regard as persuasive in employment discrimination cases. While it seems likely that our Supreme Court, in an appropriate case, will adopt and follow the new federal precedent, in the absence of such a decision we are hesitant to follow Division III in presuming that Washington's law is other than as stated in Glasgow.
In the present case, we need not decide whether Sangster goes too far. Even if Botting were presumptively responsible for the misconduct of line foreman Jeans, there is overwhelming evidence to establish the affirmative defense described in Burlington, Faragher and Sangster. Botting exercised reasonable care to prevent and promptly correct any sexually harassing behavior, as shown by its well-publicized anti-discrimination policy and its immediate response to Barker's complaint about Jeans. The opportunity to get relief from harassment by filing a complaint was known to Barker from her first days on the job, yet despite her present complaints of mistreatment by co-workers predating the dryshack incident, she does not explain why she did not complain earlier. Thus, that one incident is the only evidence of a hostile work environment, and it is too isolated to be sufficient. The evidence fails to raise an issue of material fact that Botting is vicariously liable for the misconduct of Jeans and other co-workers under either Glasgow or Sangster.
Affirmed.
GROSSE and BAKER, JJ., concur.