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Mithoug v. Apollo Radio of Spokane

February 13, 1997

JOYCE ELAINE MITHOUG AND MARIA M. (NORMAN) MADRID, APPELLANTS,
v.
APOLLO RADIO OF SPOKANE, A WASHINGTON CORPORATION, D/B/A KJRB/KEZE, A CORPORATION, AND GARY ALLEN TYACK, RESPONDENTS.



Appeal from Superior Court of Spokane County. Docket No: 91-2-01827-2. Date filed: 00/00/00. Judge signing: Hon. Kathleen O'Connor.

Petition for Review Denied June 3, 1997,

Authored by Dennis J. Sweeney. Concurring: Philip J. Thompson, Ray E. Munson.

The opinion of the court was delivered by: Sweeney

SWEENEY, C.J. Joyce Mithoug and Maria Madrid appeal the summary dismissal of their retaliatory discharge, sexual discrimination, outrage and tortious interference with a business contract claims against Apollo Radio of Spokane. They contend the court erred (1) in concluding that Ms. Mithoug and Ms. Madrid did not engage in conduct opposed to Apollo's sexual discrimination and (2) in concluding that their evidence of discriminatory discharge, outrage or tortious interference was insufficient to overcome a motion for summary judgment. We affirm.

FACTS AND PROCEDURAL BACKGROUND

Apollo Radio owns the rock and roll radio station KEZE. In late February or early March 1991, Scott Carlon, the morning news commentator at KEZE, gave notice that he planned to leave the station effective March 15, 1991. He then went on vacation. He told Apollo's general manager, Barbara Beddor, and program director, Gary Tyacke, *fn1 he would return to Spokane on March 22. Mr. Tyacke began interviewing potential replacements for Mr. Carlon. He interviewed Ms. Mithoug on March 6. She called Mr. Tyacke on March 11. He told her she was probably hired. He said he would meet with Ms. Beddor later in the week to work out the details. Ms. Beddor says she never authorized Mr. Tyacke to hire Ms. Mithoug. According to Ms. Mithoug, during a second (March 15) conversation, Mr. Tyacke asked her if she had slept with her former boss to get her last job. She claims Mr. Tyacke then began training her as morning news commentator.

Sometime before March 22, Ms. Beddor decided she could not find an adequate replacement for Mr. Carlon. She told Mr. Tyacke to offer Mr. Carlon a higher salary to return to the station. When Mr. Carlon returned from vacation on March 22, Mr. Tyacke offered the higher salary. Mr. Carlon accepted.

Ms. Madrid worked for KEZE as the nighttime disc jockey. On March 25 or 26, Ms. Mithoug came to the station and introduced herself to Ms. Madrid. They talked, in Ms. Madrid's office, about the station and Mr. Tyacke. Ms. Mithoug told Ms. Madrid that Mr. Tyacke had asked whether she slept with her former boss. She also said Mr. Tyacke told her she had the news commentator position. Ms. Madrid commented that Ms. Mithoug could expect to be sexually harassed by Mr. Tyacke on a daily basis, as she had been. Both women say that during their conversation another KEZE employee, Geoff Scott, walked into the office and may have overheard them.

On March 26, Ms. Madrid played a song on the air that was not on an approved play list. She had received written warnings before not to deviate from the play list. Mr. Tyacke called Ms. Madrid and told her to write up a violation and provide an explanation for her deviation from the play list. She refused. Mr. Tyacke called her on March 28 and terminated her. About 15 minutes later, he called Ms. Mithoug and told her the news commentator position was no longer open because Mr. Carlon had returned. He also asked if she had been telling people he had sexually harassed her.

Later that day, Ms. Madrid asked Ms. Beddor for a list of the reasons for her discharge. In a memorandum dated March 28, Ms. Beddor wrote that Ms. Madrid's job performance had not "met company standards." Besides incidents of "uncooperative behavior" (including the refusal to explain the play list deviation), she pointed to the lack of improvements made since the last unfavorable performance review (two months earlier).

Ms. Mithoug met with Ms. Beddor on April 4, 1991. She told Ms. Beddor that Mr. Tyacke had made an inappropriate comment during her interview. She also asked for compensation for the time she had spent in "training" at the station. Ms. Beddor told her she had never had a job at KEZE and that the station had a policy, which was standard in the business, of not compensating prospective employees during the "observation" period. Ms. Beddor also expressed doubt that Mr. Tyacke would have made an inappropriate comment during the job interview. *fn2

On April 10, 1991, Ms. Madrid sued Apollo for employment discrimination in violation of RCW 49.60.180, *fn3 retaliatory discharge in violation of RCW 49.60.210, *fn4 the tort of outrage, and tortious interference with a business contract. On April 16, Ms. Mithoug also filed a complaint against Apollo alleging employment discrimination in violation of RCW 49.60.180, retaliatory discharge or failure to hire in violation of RCW 49.60.210, and tortious interference with a business contract. Both claimed they were fired or denied employment because they engaged in "opposition activity" the March 25 conversation criticizing the station and Mr. Tyacke. The two suits were consolidated by stipulation.

Apollo moved for summary dismissal of Ms. Mithoug's complaint and for summary judgment on Ms. Madrid's retaliatory discharge and tortious interference claims. Apollo argued that Ms. Mithoug and Ms. Madrid's March 25 conversation was not protected opposition activity pursuant to RCW 49.60.210 and did not lead to their discharge or denial of employment.

On December 13, 1991, the court dismissed Ms. Mithoug's and Ms. Madrid's retaliatory discharge claims and Ms. Mithoug's claims relating to the station's refusal to hire her for the morning news position. The court denied Apollo's motion for summary judgment on Ms. Madrid's tortious interference claim. The court did not enter the orders on the summary judgments until March 24, 1992, because of Ms. Mithoug and Ms. Madrid's ...


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