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Dewater v. State

September 5, 1996


Appeal from Superior Court, Spokane (92-2-03459-4) County; Honorable Michael E. Donohue, Judge.

Guy, J., Durham, C.j., Dolliver, Smith, Johnson, Madsen (result only,) Alexander, Talmadge, J.j., Pekelis, J.p.t., Concurring.

The opinion of the court was delivered by: Guy


GUY, J.--The issue in this sexual harassment case is whether the State of Washington is vicariously liable for the discriminatory acts of a foster parent toward a worker hired and supervised by the foster parent but paid by the State. The trial court dismissed the Plaintiff's action on summary judgment. We affirm.

We hold a foster parent is not an "employee" of the State for purposes of the law against discrimination, RCW 49.60; therefore, the State is not vicariously liable for the foster parent's alleged acts of harassment.


Thelma DeWater brought this action for employment discrimination against the State of Washington and John Troyer, a foster parent who allegedly sexually harassed Ms. DeWater during the time she worked in the Troyer foster home.

The viability of Ms. DeWater's claim against Mr. Troyer is not at issue in this appeal. *fn1 Instead the question is whether the State of Washington is vicariously liable for Mr. Troyer's actions. *fn2

In early April 1991, Mr. Troyer applied for a license as a foster parent in order to operate a group foster home for high risk, sexually aggressive teenagers. At that time funds designated for the specialized treatment and placement of sexually aggressive youths had become available under the Community Protection Act, Laws of 1990, ch. 3. The funds were to be used to provide specialized social services, including specialized foster care placements, intensive evaluation, and counseling to children identified as being sexually aggressive.

Mr. Troyer was licensed as a foster parent and began operating a foster home for sexually aggressive teenagers in April 1991. As the foster parent, Mr. Troyer was required to make sure the home ran smoothly, to ensure 24-hour supervision of the children in his care, and to keep in regular contact with each child's caseworker, corrections officer, guardian ad litem, therapists and teachers. As compensation/reimbursement for the care of the children placed in his home, Mr. Troyer received regular foster care payments per child, as well as per child payments for the specialized care provided in his home.

The State did not determine the daily routine for the children placed in the Troyer home or otherwise become involved in the day-to-day operation of the foster home. However, because of the exceptional needs of the children placed in the Troyer foster home, and because funds were available to aid in the placement and treatment of these children, the State paid for sex offender training for Mr. Troyer and others who worked in his foster home. The State paid for the installation of an alarm system. The State also agreed to pay $7 per hour to individuals hired by Mr. Troyer as "trackers" to provide for the 24-hour supervision of each child placed in the foster home.

One of the trackers hired by Mr. Troyer in April 1991 was Plaintiff DeWater. As a tracker, Ms. DeWater was supervised by Mr. Troyer. Her work schedule was set by Mr. Troyer, and Mr. Troyer had the sole authority to direct her work and to terminate her job as a tracker. However, Mr. Troyer did not pay Ms. DeWater's wages. Instead, Ms. DeWater submitted vouchers for payment to Mr. Troyer who forwarded them upon approval to the State. The State paid Ms. DeWater directly. No deductions for taxes, social security or other expenses were taken from the payments made to Ms. DeWater or to Mr. Troyer. No employee benefits were paid by the State for either Ms. DeWater or Mr. Troyer. *fn3 During her tenure as a tracker for the Troyer foster home, Ms. DeWater had no contact with any State employee involved in the licensing of the foster home or involved in approving or making payments for services, including those of the trackers, at the foster home.

Ms. DeWater alleges that while she was working as a tracker at the Troyer foster home, she was subjected to sexual harassment by John Troyer. Mr. Troyer and other trackers working at the foster home during the same period of time dispute Ms. DeWater's statements. Ms. DeWater did not inform anyone at the State about the alleged harassment but argues that the State had notice of the harassment or its potential because the State had previously been informed about an incident at Mr. Troyer's former place of employment. *fn4

In late 1991, Mr. Troyer terminated his foster license agreement with the State. One of the trackers at the foster home assumed the duties of foster parent.

The record is not clear as to the reasons for Ms. DeWater's termination from her employment, nor as to whether she resigned or was fired. In any event, Ms. DeWater's association with the Troyer foster home ended on December 26, 1991.

Ms. DeWater then filed a complaint for damages against the State and Mr. Troyer alleging sexual harassment, wage discrimination, retaliation, and failure to remit wages and other money due.

The State moved for summary judgment asking the trial court to rule as a matter of law that the State was not vicariously liable for the allegedly discriminatory conduct of Mr. Troyer. Ms. DeWater filed a cross motion for summary judgment.

The trial court granted the State's motion after finding as a matter of law that Mr. Troyer, as a licensed foster parent, was an independent contractor of the State.

Ms. DeWater appealed, and we directed that the appeal be transferred from the Court of Appeals for argument in this court.


Is the State vicariously liable for the discriminatory acts of a licensed foster parent toward a worker in the foster parent's home?


This is an appeal from an order granting summary judgment. Review is therefore de novo and the court engages in the same inquiry as the trial court. Wilson v. Steinbach, 98 Wash. 2d 434, 437, 656 P.2d 1030 (1982); Hiatt v. Walker Chevrolet Co., 120 Wash. 2d 57, 65, 837 P.2d 618 (1992). The court must decide whether there is a genuine issue as to any material fact and whether the moving party is entitled to judgment as a matter of law. Fahn v. Cowlitz County, 93 Wash. 2d 368, 373, 610 P.2d 857 (1980). Where there is no dispute as to any material fact, summary judgment should be granted. CR 56(c); Hiatt, 120 Wash. 2d at 65-66.

We do not consider the merits of Ms. DeWater's underlying claims of sexual harassment and wage discrimination. The only issue before us is whether the State may be vicariously liable for the actions of a licensed foster parent toward persons working in the foster home. The facts with respect to that limited issue are not in dispute.

Sexual Harassment in Employment

Sex discrimination in employment is prohibited by this state's law against discrimination. RCW 49.60 declares the right to be free from discrimination on the basis of race, creed, color, national origin, sex, marital status, age or ...

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