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DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 50552-1-I
Title of Case: Larry E. Pittman, Appellant V Kings Command
Food, Respondent
File Date: 09/08/2003
SOURCE OF APPEAL
----------------
Appeal from Superior Court of King County
Docket No: 99-2-52345-8
Judgment or order under review
Date filed: 05/09/2002
JUDGES
------
Authored by Ronald E. Cox
Concurring: Mary Kay Becker
William W. Baker
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
John R Scannell
ActionLaw.net
501 S Jackson St Ste B100
Seattle, WA 98104-2896
Counsel for Respondent(s)
Antoinette M Davis
Labor Ready
PO Box 2910
Tacoma, WA 98401-2910
Darren Anthony Feider
Williams Kastner & Gibbs PLLC
601 Union St Ste 4100
Seattle, WA 98101-2380
Daniel W. Ferm
Williams Kastner & Gibbs PLLC
601 Union St Ste 4100
Seattle, WA 98101-2380
Sheryl Denise Johnso Willert
Attorney at Law
4100 Two Union Sq
601 Union St
Seattle, WA 98101-2341
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
)
LARRY E. PITTMAN, SYLVESTER ) No. 50552-1-I
PITTMAN, MICHAEL PITTMAN, )
TERRANCE A. DAVIS, KEITH ) DIVISION ONE
KERN, YOLANDA ESKRIDGE, )
MICHAEL DAVIS, GREGORY CODY, )
DAVID LISTIOWEL ABRUQUAH, )
NATHAN A. KILCREASE, JOSEPH )
A. DONKOR, DARREL CODY, MARY )
COLEMAN, ERIC ARHIN, SHABAE )
DIQUAN, SIDNEY LANIER, RE- )
LASHIA SEARLES, JAMES GOODE, )
CURTIS HOLLIS, and BENJAMIN )
BARNES, individually, ) UNPUBLISHED
)
Appellants, ) FILED:
)
v. )
)
KING'S COMMAND FOODS, INC., a )
Washington business )
corporation, )
)
Respondent. )
COX, A.C.J. - Twenty plaintiffs (employees) appeal the trial court's
summary dismissal of all of their claims 'whether in the complaint as
amended or in any other written or oral submission to the court.'1 The
essence of the claims is that King's Command Foods allegedly violated the
Washington Law Against Discrimination (WLAD) by its actions or omissions.
The employees failed to raise genuine issues of material fact regarding
their disparate treatment claims. Accordingly, we affirm the summary
judgment dismissal of these claims. But Larry Pittman, Michael Davis,
Sidney Lanier, Keith Kern, Shabae Diquan, Curtis Hollis, Mary Coleman, and
Terrance Davis raised genuine issues of material fact regarding their
hostile work environment claims. Thus, we reverse dismissal of these
claims. There are no genuine issues of material fact supporting the
remaining hostile work environment claims, the dismissal of which we
affirm. The employees failed to appeal two orders granting sanctions
against them and their trial attorney, and these orders do not
prejudicially affect the summary judgment orders appealed. Thus, we
decline to review the sanction orders. Because the employees' claims are
not totally devoid of merit, we decline to award attorney fees on appeal
under RAP 18.9(a) to King's Command Foods. The claim for fees under WLAD
is premature.
Eighteen former and current employees of King's Command Foods
commenced this action under WLAD. They alleged employment discrimination
based on race. A series of amendments to pleadings added parties, but none
amended substantive claims. King's Command Foods made seven summary
judgment motions, seeking to dismiss the claims of groups of employees.
The employees made cross motions for partial summary judgment, claiming
'that race was a substantial factor' in every adverse employment action
taken against every plaintiff. The employees made another motion for
partial summary judgment, claiming 'that a hostile work environment existed
at King's Command Foods, Inc. {which} was unwelcome, based on race,
affected the terms and conditions of employment of every plaintiff,' and is
imputed to the defendant. The trial court granted King's Command Foods'
motion, dismissing all claims. The court also denied the employees' motion
for reconsideration.
The employees appeal the summary judgment dismissal and denial of their
motion for reconsideration. The notice of appeal does not include any
other orders.
NOTICE PLEADING
King's Command Foods argues that the employees' complaint, as amended,
was insufficient in that it did not specifically state that they were
asserting claims for disparate treatment in pay, hiring, and discharge, and
for hostile work environment harassment. We disagree.
The amended complaint claimed that:
In promotions and opportunities for career growth for the plaintiffs and
other employees of African descent, defendant KING'S COMMAND FOODS, INC.
discriminated against them on the basis of their race, in violation of
their civil right to be free from employment discrimination on the basis of
their race provided by RCW 49.60.030(1)(a).{2}
Our civil litigation system is based on notice pleading. 'A pleading is
insufficient when it does not give the opposing party fair notice of what
the claim is and the ground upon which it rests.'3 To the extent King's
Command Foods was uncertain of the nature of the claims under the WLAD, it
could have obtained that information through discovery. Moreover, both the
wording of the trial court's summary judgment order and review of the
extensive pleadings in this case make clear that all parties were aware of
the substance of the claims asserted. In short, there is no showing of
prejudice to King's Command Foods by this alleged omission.4
Accordingly, we proceed to consider the substantive arguments of the
parties.
DISPARATE TREATMENT
The employees argue the trial court erred in granting summary judgment of
their disparate treatment employment claims against King's Command Foods.
We disagree.
We may affirm an order granting summary judgment if there are no genuine
issues of material fact and the moving party is entitled to judgment as a
matter of law.5 A material fact is one upon which the outcome of the
litigation depends.6 All facts and reasonable inferences must be
considered in the light most favorable to the nonmoving party.7 The
nonmoving party may not meet its burden by relying on speculation or
argumentative assertions that unresolved factual issues remain.8 Rather,
that party must set forth specific facts sufficiently rebutting the moving
party's contentions and disclosing the existence of a material issue of
fact.9
An employer may not discriminate against 'any person in ... terms or
conditions of employment because of ... race....'10 Because direct 'smoking
gun' evidence of discriminatory animus is rare, '{c}ircumstantial, indirect
and inferential evidence will suffice to discharge the plaintiff's burden.'11
In the absence of such direct evidence, we apply the burden-shifting test
outlined by the United States Supreme Court in McDonnell Douglas Corp. v.
Green12 and 'largely adopted' by our state courts.13 To establish a prima
facie case of racial discrimination due to disparate treatment, a plaintiff
'must show (1) he belongs to a protected class, (2) he was treated less
favorably in the terms or conditions of his employment (3) than a similarly
situated, nonprotected employee, and (4) he and the nonprotected
'comparator' were doing substantially the same work.'14
Here, whether a comparator for each claim exists is dispositive.
Thus, no other facts are material for summary judgment purposes. We
summarize each employee's claim below.
Larry Pittman claimed that he was denied promotions and raises. He15
sometimes did work that should have been paid at higher rates, but did not
receive the higher pay rates for that work. King's Command Foods refused
to train him in maintenance but trained white employees who were hired
after him. But he did not submit evidence that King's Command treated a
similarly situated comparator more favorably.
Sylvester Pittman called Terry Smith, the plant manager, and introduced
himself as Larry and Michael Pittman's brother, and asked if he could apply
for a job. Smith told him that he would have to come in and fill out an
application, but when he applied, Smith said, 'There is no job. Sorry, but
there is no job and there won't be a job.' But he has not shown that a
similarly situated comparator was treated more favorably.
Michael Pittman worked at King's Command Foods through a temporary agency.
Kirk McCoy, the day foreman, told him that he would hire him as a permanent
employee when he had worked there for 90 days. The company laid him off
before 90 days had run, then called him back as a temporary employee a few
weeks later. He stated that a white woman he worked with was hired
permanently. But he has not demonstrated that this woman was a similarly
situated comparator, or that any similarly situated comparator was treated
more favorably.
Terrance Davis did the work of an assistant grinder but was classified as
if he held a lower paying position. He asked Smith to promote him so that
he would not have to submit paperwork to receive the higher pay. Smith
stated that he would promote him when he 'showed that {he} deserve{d} it.'
When Terrance showed that he was angry by throwing meat, he was demoted.
Someone told him the demotion was to allow him to 'cool off.' He did not
present any evidence that a similarly situated comparator was treated more
favorably than he was.
He also claims that King's Command Foods disciplined him for punching out
at the wrong time and for absences related to illness, in violation of
federal law. But he failed to plead violations of such laws.
Keith Kern also worked in a higher position than his actual classification,
and was paid at a lower rate than his work merited. He believed that
white co-workers were paid at the higher rates for the same work. Although
he submitted paperwork to get the higher pay, it was denied. But he has
failed to demonstrate that similarly situated comparators received
different pay for similar work.
Yolanda Eskridge asked to be moved from the night shift to the day shift.
She stated that an employee with only a few weeks experience was
transferred from the night shift to the day shift, but Eskridge was not,
even though she had been working there for months. Smith stated that he
would not have allowed an experienced packer to switch from the swing shift
to the day shift because that would deprive the swing shift of experienced
workers and cause production problems. Thus, King's Command Foods argues,
the transferred worker was not similarly situated because Eskridge's
experience made her more valuable to the company on the night shift than
the newer employee would have been. She has not shown that the transferred
worker was a similarly situated comparator. She was fired for abandoning
her position. White employees whose behavior was allegedly more egregious
were not fired. She did not present any evidence that either of these
employees was a similarly situated comparator.
Michael Davis does not argue on appeal that King's Command Foods took
adverse employment actions against him that would support a claim for
disparate treatment. Thus, we will not disturb the order on appeal as to
this worker.
Gregory Cody temporarily worked at a position that had a higher pay rate
than his regular position. During the first week, but not the second week,
he received the higher pay rate. He has not introduced evidence that a
similarly situated comparator did receive the higher pay rate in these
circumstances. Once, when he pointed out that he had been incorrectly
accused of an error, Smith agreed that he was correct and tore up the
notice. This is not evidence of an adverse employment action. Once, Smith
gave him an 'occurrence' when he called in sick. He was fired when he
missed two days because he was arrested. He has not demonstrated that
similarly situated comparators were treated more favorably in similar
circumstances.
David Abruquah's pay was reduced after a USDA inspector found dirt under a
sink in the bathroom. He was disciplined for arriving and clocking in late
and when a laundry machine drain was plugged. He argues that King's
Command Foods unfairly disciplined him on each of these occasions. But he
does not point to a similarly situated comparator who was not disciplined
in the same circumstances.
Nathan Kilcrease was disciplined for absences and for arriving late to
work. A white employee was not disciplined for absences and late arrivals,
but that employee was a salaried supervisor, and thus not similarly
situated. Kilcrease argues that he was also treated differently because he
faced possible termination under the occurrence policy. But he was not
terminated under the occurrence policy. Rather, when he arrived at work
drunk he was suspended without pay for a week and then demoted, not
terminated. Thus, he has not created a genuine issue of material fact
whether a similarly situated comparator was treated more favorably than he
was.
Joseph Donkor claims that he did not get a job he applied for because his
supervisor failed to turn in the application Donkor gave him. A white
employee got the job. But he did not know the name or anything about the
qualifications of the person who got the job. He has not shown that the
employee who was hired was a similarly situated comparator. He was also
disciplined because he clocked in before dressing for work. Although he
states that others clocked in before changing all the time, he did not
demonstrate that a similarly situated comparator was not disciplined for
doing so.
Darrel Cody alleged that white employees doing similar work were paid more
than he was. But he has not demonstrated that any of the employees he
named was a similarly situated comparator. He was suspended and demoted
for fighting with Chuck Imhoff, a white employee. Imhoff was merely
suspended, not demoted. But Cody was Imhoff's supervisor. Smith explained
that he demoted him but not Imhoff because he was Imhoff's supervisor, and
Smith 'did not believe it was safe to have an employee leading others who
would engage in violence.' He has not shown that Imhoff was a similarly
situated comparator. Finally, he claims that he was given an occurrence
when he was absent for a court appearance and illness, but a white employee
was allowed to make up hours instead of getting an occurrence. But he
conceded that he had no evidence that the white employee was called to the
factory to make up hours instead of being given an occurrence.
While Mary Coleman was working as a packer, she, Larry Pittman, and Keith
Kern applied for a posted position in the red meat department. Coleman
believed that at least one white employee also applied for the job. A
white man named Dennis was hired for the position. She believed that he
was hired 'off the street.' She also claims that she was passed over for
line lead positions in favor of white employees on four occasions. But she
has not demonstrated that any similarly situated comparator was hired or
promoted over her.
Eric Ahrin was prevented from returning from Ghana to participate in the
lawsuit. He does not argue any evidence of disparate treatment, and we do
not further address this claim.
Shabae Diquan worked for King's Command Foods for six months. He applied
for 'every job opening listed, orally and by written application.' He
stated that he was 'overlooked each time for a white person who did not
have more skills, qualifications or more seniority than me.' But he failed
to introduce any evidence to support this allegation.
Sidney Lanier stated that after he had been working in the freezer for 30
days, 'they hired some Caucasian and put me back on the floor.' He claims
that the replacement had less experience and was from the temporary agency,
as was Lanier. He does not name the replacement or provide any evidence to
support the allegation that the other employee was less qualified.
Relashia Searles worked as a temporary employee and requested applications
for direct employment. She asked for an application several times and
never received one. She listed five employees who were hired during the
time she was asking for an application. One of those five was a co-
plaintiff in this case. She has not demonstrated that a similarly situated
comparator was treated more favorably than she was.
James Goode applied for employment at King's Command Foods and Smith told
him they were not hiring but that he should check back. Several employees
told him that King's Command Foods was hiring, but no one in management
told him that. He spoke to some employees on their break, and they told
him that King's Command Foods had hired several white people but, according
to the grapevine, 'they weren't hiring any blacks.' He has not shown that
there is any evidence that a similarly situated comparator was hired.
Curtis Hollis received a number of occurrences when he was absent. He
alleged that white employees committed bad acts and were not disciplined,
while he was disciplined for things that should have been acceptable. But
he did not name any of these employees, and conceded that he did not know
any facts about circumstances in which they were not given occurrences. He
did name one white employee, Dave Greenwood, stating that he believed that
Greenwood got an occurrence when he arrived at work drunk and cursed at the
vice president of the company. In Hollis's opinion, Greenwood should have
been fired for this behavior. But he does not provide any evidence showing
that Greenwood was similarly situated to him in experience, discipline
record, or other qualifications.
Benjamin Barnes does not argue on appeal that King's Command Foods took
adverse employment actions against him that would support a claim for
disparate treatment.
Finally, the plaintiffs argue that King's Command Foods' records
regarding 'occurrences' and merit raises demonstrate statistical evidence
of disparate treatment at the plant. But this is not a class action, and
the plaintiffs fail to show that the documents demonstrate disparate
treatment of any of the individual plaintiffs. Thus, it does not raise a
genuine issue of material fact.
In sum, there are no genuine issues of material fact for any employee.
King's Command Foods was entitled to judgment as a matter of law.
HOSTILE WORK ENVIRONMENT
The employees argue that the trial court erred in granting summary judgment
of their claims of hostile work environment discrimination. We agree in
part.
One form of discrimination under Washington's law against discrimination,
ch. 49.60 RCW, is maintaining a hostile work environment.16 To establish a
prima facie case for a hostile work environment claim based on race, the
plaintiff-employee must show (1) the harassment was unwelcome; (2) the
harassment was because of race; (3) the harassment affected the terms or
conditions of employment; and (4) the harassment is imputed to the
employer.17
Each plaintiff must show that the harassment was motivated by a
discriminatory animus: it is not sufficient to show that the employee
suffered embarrassment, humiliation, or mental anguish arising from non-
discriminatory harassment.18 Whether harassment is sufficiently severe or
pervasive is a question of fact.19 The harassment must be subjectively as
well as objectively abusive.20 In determining whether an environment is
hostile or abusive, we look at the totality of the circumstances, including
such factors as the frequency of the discriminatory conduct, its severity,
whether it is physically threatening or humiliating, or a mere offensive
utterance, whether it unreasonably interferes with an employee's work
performance, and the effect on the employee's psychological well-being.21
'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.'22
Our supreme court explained, in Glasgow v. Georgia-Pacific Corp.,23 when
harassment may be imputed to the employer. First, where 'an owner,
manager, partner or corporate officer personally participates in the
harassment, this element is met by such proof.'24 King's Command Foods
appeared to concede at oral argument that Terry Smith was a manager for
purposes of imputation analysis. Because Smith was concededly a manager,
any harassment in which he participated may be imputed to King's Command
Foods. And the allegations that he was aware of other harassment and did
not intervene in any meaningful way are adequate to create a genuine issue
of material fact under Glasgow.
Next, to hold an employer responsible for the discriminatory work
environment created by a plaintiff's supervisors or co-workers, the
employee must show that the employer (a) authorized, knew, or should have
known of the harassment and (b) failed to take reasonably prompt and
adequate corrective action.25 A plaintiff may show this 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.{26}
In Glasgow, the plaintiffs showed that they were harassed by a 'co-worker
with the actual knowledge of two supervisory personnel who undertook no
reasonably prompt and adequate remedial measures to alleviate the resulting
hostile and intimidating work environment in which the employees found
themselves.'27 Our supreme court held that the record supported the trial
court's finding that the employer knew or should have known that the co-
worker's behavior was unreasonably interfering with the plaintiffs' work
performance and/or created an intimidating, hostile or offensive working
environment, and took no corrective action.28 Thus, the harassment was
properly imputed to the employer.
Sylvester Pittman, Relashia Searles, James Goode, Michael Pittman,
Joseph Donkor, Yolanda Eskridge, and Eric Arhin have made no claims that
can be characterized as hostile environment harassment on appeal. Thus,
they are not entitled to relief on this theory.
Our focus turns to the other employees to determine whether any created
genuine issues of material fact regarding being subject to unwelcome
harassment because of race that altered the terms or conditions of their
employment.
Larry Pittman has created genuine issues of material fact regarding
all four factors. He was repeatedly and physically assaulted on the job by
Kirk McCoy. McCoy hit him in the chest hard enough to knock him against a
wall and then hit him in the right shoulder, with enough force to cause
injuries for which he had to seek medical treatment. McCoy assaulted him
four or five times a day, five days a week, for almost three years. McCoy
told him, 'Boy, it comes with the job.' Many employees, including plant
supervisor Terry Smith and purchasing agent Mike Wallace, watched the
assaults without helping him, and Smith and Wallace assisted McCoy in
assaulting him. Robert Thomas, a co-worker, frequently called him racially
offensive names, and Smith, McCoy, and other supervisors witnessed and
ignored it. McCoy told him a racially offensive joke. Pittman once quit
after being ordered to do degrading work while white employees stood
watching and laughing at him. When he returned to work, he was told that
McCoy would no longer be his supervisor, and that Pete Dewitt would be his
supervisor. When McCoy continued to assault him and call him 'boy' and
other racially offensive terms with impunity, he complained to Dewitt.
Dewitt told him, 'Larry, there comes a time when a company won't do any
more for you, all you can do is leave. And you're at that point with this
company.' Pitmman understood this to mean that Dewitt would not 'do
anything for the racial slurs, the physical assaults, and the lack of
raises and promotions.' Nathan Kilcrease saw McCoy hitting him and yelling
'racial epithets' at him. Terrance Davis once saw McCoy assaulting him,
and telling him to shut up. Terrance did not know 'what it was all about'
but believed it exemplified the 'racially hostile work environment' at
King's Command Foods. McCoy called Terrance 'boy' all the time, and 'it
was definitely racial.' Shabae Diquan heard Smith call Pittman racially
offensive names and once saw McCoy hitting him on the shoulder while he
begged him to stop because his shoulder was already injured. Sidney Lanier
saw a white co-worker dump trash all over the ground near the dumpster and
tell Pittman to get his 'black ass' out there and pick it up. When he
complained to the 'management', they told him it was his job to pick it up.
Three days before he fired Pittman, Smith said 'Boy, you do not have any
rights, we are a multimillion dollar company and there is nothing you can
do to hurt us as long as you are an employee, you will do what we say, when
we say it.' This harassment is imputable to King's Command Foods because
of Smith's participation. Smith saw McCoy hitting Pittman. Terry Smith
and Mark Wallace (purchasing agent) surrounded Pittman to help McCoy hit
him. They told him he could not hit McCoy or he would be fired. They did
not act to stop McCoy. Thomas used racially offensive terms to Pittman in
Smith's presence. Smith told him he had no rights.
Michael Davis also created genuine issues of material fact regarding
all four factors. He described a number of racially offensive comments co-
workers and supervisors made. Markewicz told him that he was being
assigned to a grinder position because he was 'a young, black male.' Smith
laughed at offensive things Robert Thomas, a co-worker, said to him.
Thomas frequently called him and other co-workers that Davis described as
'minority' names that he found racially offensive, like 'Dogg,' 'Aunt
Jemima,' 'Chief,' and 'boy.' Thomas did not call white co-workers these
names. Each time Thomas called him a name, he told Thomas to call him
Michael. Jody Lambert told some jokes that he found racially offensive,
but apologized when Davis told him that they were offensive and stopped
telling them. He also showed that Smith participated in his harassment,
creating a basis for imputing the harassment to King's Command Foods. He
stated in his declaration that Smith witnessed and condoned the harassment
he suffered:
They said racial things to us - management did. They talked down to us.
Like I said, they treated us like slaves. The reason co-workers felt that
it was okay to make racial epithets towards us is because management did it
and condoned it. This was not random. It was all the time. Robert
{Thomas} from the grind line would not have said these things if Terry
Smith had not condoned it. Terry thought it was funny. He laughed.
Sidney Lanier also created genuine issues of material fact regarding the
four factors. He stated generally that the 'management' directed verbal
and physical abuse at African-Americans. A co-worker called him a 'dumb,
stupid black ass mother fucker' and Smith laughed and refused to intervene
when he complained. Thomas and McCoy would punch him as well as Larry, and
tell racist jokes. Thomas once called him 'blacky'. Thomas warned him
that a co-worker wore a swastika on his ear, and he believed that Thomas
did so to frighten him. The warning did upset Lanier. The harassment is
imputed to King's Command Foods because of Smith's involvement. Lanier
complained to McCoy and Smith about harassment by a co-worker. They did
not do anything to stop the co-worker because they thought it was funny.
Lanier also stated that McCoy and Smith singled out black employees on
their breaks to do extra, non work-related, tasks like helping 'a white
lady' carry boxes in from her car.
Shabae Diquan created genuine issues of material fact regarding all four
factors. His harassment can be imputed to King's Command because of
Smith's involvement. He worked at King's Command Foods for six months.
During that time, white co-workers and supervisors used many racially
offensive terms. He was told that his co-workers would not support him in
complaining because they did not want to lose their jobs. He asked Smith
and McCoy for a permanent position, and they told him 'when they wanted to
hire another black, 'damn it, they would hire one, until then get back to
work.' ' He filed complaints 'of the working conditions at King's Command
as biased towards African-Americans and non-white employees, as well as the
unfair, hostile and racially charged work atmosphere and conditions.'
Smith said that 'black people reminded him of the little black faced
statutes that holds {sic} a lantern light on his grass front lawn.' Smith
called him racially offensive terms, and when Diquan asked that he not use
them, Smith said 'What!!! D {sic} you think the Niggers are running King
{sic} Command? Well your {sic} not. Now get back to work or your {sic}
fired.' He suffered personal, physical, and mental anguish because of this
treatment.
King's Command Foods argues that his statement was not credible because no
other witnesses corroborated his statements. But this argument is
misplaced, as on summary judgment we cannot and do not make credibility
determinations.
Keith Kern, Terrence Davis, Curtis Hollis, and Mary Coleman also created
genuine issues of material fact regarding all four factors. Keith Kern's
immediate supervisor, Robert Thomas, called him and other employees
racially offensive names and told racist jokes. Kirk McCoy, their
supervisor, laughed at these names and jokes and did not do anything to
stop Thomas. McCoy also asked Kern and Mary Coleman if they were clocked
in while not asking other employees. Kern stated that Smith and other
managers never witnessed these incidents. He did not report the incidents
because he did not want to 'make any waves.' He told Smith 'Robert treats
me like shit down there.' Smith responded 'Good,' treating his complaint
as a joke. He reported his concerns about the way Thomas treated him to
McCoy. McCoy said that he would talk to Thomas, but Kern did not know if
McCoy had done so. Thomas continued to use the offensive terms after Kern
spoke to McCoy about it.
King's Command Foods argues that Thomas's abuse could not have been
sufficient to change the terms of his employment because Kern 'socialized'
with Thomas outside work. But this mischaracterizes the record. Kern
stated that he went to Thomas's house three times. Thomas invited him over
several times and Kern refused to go because of the way Thomas treated him
at work. He agreed to go because he felt bad about hurting Thomas's
feelings by refusing to go. Once, when he got to Thomas's house, Thomas
began cutting his grass, then lay down and watched Kern finish the job.
Kern was disgusted that Thomas was laughing at that.
Terrance Davis stated that a co-worker, Roy Boberg, made a racially
derogatory comment to him once when he was a temporary employee. He
applied for permanent work, and agreed that the work environment was not
bad enough to discourage him from doing so. When he was a permanent
employee, he worked with Markowicz, who called him 'boy'. Later Markowicz
mumbled a racial epithet at him. Markowicz told him that 'y'all people
should know how to do that work.' Jim Kimborowicz said derogatory things
about Mexican co-workers. Davis stated that Smith never called him any
racially offensive terms. Smith did use 'y'all', as in 'y'all people
should know how to do that type of work.' Davis did not complain to Smith
about the employees using offensive terms. He resigned because he was
tired of the way he was being treated. He was tired of being talked down
to by Tim Markowicz, Smith, and McCoy. 'Just all the little smart remarks,
it was too much stress.'
Curtis Hollis stated that 'they' told racial jokes. He recounted one
offensive joke that Markewicz told him. Jim Baer, a co-worker, told a
racial joke 'at least once or twice a day.' 29 He also stated that Smith
belittled him 'all the time and it was in a racial way.'
Mary Coleman stated that on Martin Luther King, Jr. Day, McCoy said that
'We should celebrate James Earl Ray Day, you know, James Earl Ray Day for
killing - you know, for killing Martin Luther King, we should have a day
for him.' McCoy also singled her and Kern out to ask if they were clocked
in before putting their coats on, but did not ask the four white employees
the same question.
King's Command Foods argues that Coleman did not subjectively believe that
the environment was abusive. Coleman stated in her deposition that she was
involved in the lawsuit because she believed King's Command Foods
discriminated against her in refusing to promote her. She believed that
King's Command Foods discriminated against other employees in other ways.
After she made those statements, however, she recounted the two incidents
described above. When asked why she left King's Command Foods, she stated
that it was because she was going to jail, and because she was tired of the
working conditions at the factory including equipment that was always
breaking down. She also stated, however, that she tried to overlook the
'racial stuff' but sometimes got so fed up with it that she felt she had to
do something about it. She stated that she liked working for the company
but was tired of the 'bullshit'.30
Keith Kern, Terrence Davis, Curtis Hollis, and Mary Coleman failed to
demonstrate a genuine issue of material fact regarding whether Smith
personally participated in or witnessed the acts of harassment they
experienced. But, under Glasgow, they may show that King's Command Foods
authorized, knew, or should have known of the harassment because there was
'such a pervasiveness of . . . harassment at the work place as to create an
inference of the employer's knowledge or constructive knowledge of it' and
any remedial action taken by King's Command Foods was not of such nature as
to have been reasonably calculated to end the harassment.31 The record here
is sufficient to establish a genuine issue of material fact regarding
whether the work environment at King's Command Foods was so pervasively
harassing that King's Command Foods had constructive knowledge of the
condition. Particularly considering the extensive allegations that Smith
participated in the racial harassment, it is clear that the record creates
a genuine issue of material fact regarding whether King's Command Foods
should have known of the behavior of its employees. There is no evidence
in the record that Smith or any other managers at King's Command Foods
attempted any remedial action.
Viewing the facts and inferences in the light most favorable to each, these
eight employees created genuine issues of material fact regarding all four
factors, that the harassment they described was unwelcome, that it was
motivated by racial animus, that the abuse was frequent, severe, physically
harmful and humiliating, that it unreasonably interfered with their work
performance, and that the harassment could be imputed to King's Command
Foods.
Although the question whether harassment is sufficiently severe or
pervasive is a question of fact,32 summary judgment dismissal is proper
where the facts alleged describe 'harassing conduct {that} is not pervasive
enough to create an abusive working environment and alter the conditions of
employment.33 In Washington, we held that summary judgment was properly
granted where the plaintiff's allegations described 'isolated occurrences'
and conduct that 'did not unreasonably affect {the plaintiff's} work
performance.'34 Likewise, here, several plaintiffs made claims on appeal
that could be characterized as hostile environment claims. But the facts
they alleged were not sufficient to create a genuine issue of material fact
whether the abuse they alleged was sufficiently severe and pervasive to
constitute hostile environment discrimination based on race.
David Abruquah heard white employees use racially offensive names in the
hallways during breaks. He believed that white employees were given better
and higher paying assignments. He left King's Command Foods because he
felt he was being treated unfairly based on race.
Benjamin Barnes stated that an unidentified white supervisor was always
telling racist jokes, and once he heard this person telling a racist joke
to co-plaintiff Sidney Lanier. When this person tried to tell Barnes a
racist joke he walked away to avoid hearing it.
Darrel Cody stated that McCoy once called him a 'tarbaby.' McCoy told him
that the founder of the company would not have a black man work for him.
Once McCoy called the table where Mexican workers sat in the lunchroom the
'south-of-the-border table.'
Gregory Cody claims on appeal that his white co-workers called him racially
derogatory names and ordered him around. Cody fails to point to anything
in the substantial record before us to support his argument.
While the incidents the employees describe are offensive, these employees
have described isolated occurrences, or conduct that the employees have not
shown to have unreasonably affected their work performance.
Because they created genuine issues of material fact regarding whether
King's Command Foods discriminated against them based on race by
maintaining a hostile work environment, we reverse the grant of summary
judgment of these claims by Larry Pittman, Michael Davis, Sidney Lanier,
Keith Kern, Shabae Diquan, Curtis Hollis, Mary Coleman, and Terrance Davis.
We affirm the grant of summary judgment dismissing the hostile work
environment claims of the other 12 plaintiffs.
TRIAL SANCTIONS
The employees argue that the trial court abused its discretion by
twice awarding sanctions against the employees and their counsel. We will
not review these claims because the employees failed to appeal them.
The employees assign error to sanctions orders, neither of which they
included in their notice of appeal. Under RAP 2.4(b), we will review an
order not designated in the notice of appeal if '(1) the order or ruling
prejudicially affects the decision designated in the notice, and (2) the
order is entered, or the ruling is made, before the appellate court accepts
review.' Neither of these orders prejudicially affects the summary
judgment order.
The employees argue that we should waive the requirement based on RAP
18.8(a) to serve the ends of justice. We decline to do so in this case.
ATTORNEY FEES ON APPEAL
King's Command Foods requests attorney fees on appeal under RAP
18.9(a). King's Command Foods argues that the employees made assertions
knowing that they 'are unsupportable and thus frivolous.' '{A}n appeal is
frivolous if there are no debatable issues upon which reasonable minds
might differ and it is so totally devoid of merit that there {is} no
reasonable possibility of reversal.'35 While the employees' briefing was
extremely difficult to understand, and the majority of their claims are
unsuccessful, they are not totally devoid of merit. We decline to award
attorney fees to King's Command Foods. The employees' request for fees
under WLAD is premature.
There is no showing of an abuse of discretion by the trial court in
denying the motion for reconsideration. Thus, we leave that order
undisturbed by this decision.
We affirm in part, reverse in part, and remand for further proceedings.
WE CONCUR:
1 Clerk's Papers at 1530.
2 Clerk's Papers at 5.
3 Chen v. State of Washington, 86 Wn. App. 183, 194, 937 P.2d 612, review
denied, 133 Wn.2d 1020 (1997) (quoting Lewis v. Bell, 45 Wn. App. 192, 197,
724 P.2d 425 (1986)); see also Molloy v. City of Bellevue, 71 Wn. App. 382,
385, 859 P.2d 613 (1993), review denied, 123 Wn.2d 1024 (1994).
4 In discussing hostile work environment claims under Title VII of the
Civil Rights Act of 1964, the United States Supreme Court stated:
A discriminatorily abusive work environment, even one that does not
seriously affect employees' psychological well-being, can and often will
detract from employees' job performance, discourage employees from
remaining on the job, or keep them from advancing in their careers.
Harris v. Forklift Systems, Inc., 510 U.S. 17, 22, 114 S. Ct. 367, 126 L.
Ed. 2d 295 (1993) (italics ours).
5 CR 56(c).
6 Greater Harbor 2000 v. City of Seattle, 132 Wn.2d 267, 279, 937 P.2d 1082
(1997).
7 Mountain Park Homeowners Ass'n v. Tydings, 125 Wn.2d 337, 341, 883 P.2d
1383 (1994).
8 Seven Gables Corp. v. MGM/UA Entertainment Co., 106 Wn.2d 1, 13, 721 P.2d
1 (1986).
9 Seven Gables, 106 Wn.2d at 13; Taylor v. Stevens County, 111 Wn.2d 159,
163, 759 P.2d 447 (1988).
10 RCW 49.60.180(3).
11 Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 179-80, 23 P.3d 440 (2001).
12 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
13 Hill, 144 Wn.2d at 180.
14 Johnson v. DSHS, 80 Wn. App. 212, 227, 907 P.2d 1223 (1996).
15 Because there are three plaintiffs with the last name Pittman, two with
the last name Cody, and two with the last name Davis, we will refer to
these plaintiffs by their first names, rather than their last names, to
avoid confusion.
16 Kahn v. Salerno, 90 Wn. App. 110, 117-18, 951 P.2d 321, review denied,
136 Wn.2d 1016 (1998).
17 Washington v. Boeing Co., 105 Wn. App. 1, 12-13, 19 P.3d 1041 (2000).
18 Adams v. Able Building Supply, 114 Wn. App. 291, 298, 57 P.3d 280 (2002).
19 Harris, 510 U.S. at 23.
20 Harris, 510 U.S. at 21-22.
21 Harris, 510 U.S. at 23; Adams, 114 Wn. App. at 296-97.
22 Washington, 105 Wn. App. at 10.
23 103 Wn.2d 401, 693 P.2d 708 (1985).
24 Glasgow, 103 Wn.2d at 407.
25 Glasgow, 103 Wn.2d at 407.
26 Glasgow, 103 Wn.2d at 407. The Glasgow test applies to work environment
racial discrimination as well. Fisher v. Tacoma School District No. 10, 53
Wn. App. 591, 595-96, 769 P.2d 318, review denied, 112 Wn.2d 1027 (1989).
27 Glasgow, 103 Wn.2d at 404.
28 Glasgow, 103 Wn.2d at 407.
29 Clerk's Papers at 252.
30 Clerk's Papers at 710.
31 Glasgow, 103 Wn.2d at 407.
32 Harris, 510 U.S. at 23.
33 Washington, 105 Wn. App. at 10.
34 Washington, 105 Wn. App. at 11.
35 State v. Chapman, 140 Wn.2d 436, 454, 998 P.2d 282 (2000) (quoting State
ex rel. Quick-Ruben v. Verharen, 136 Wn.2d 888, 905, 969 P.2d 64 (1998)).
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