Appeal from Superior Court of King County. Docket No: 93-2-22907-1. Date filed: 07/21/95. Judge signing: Hon. John M. Darrah.
Petition for Review Denied September 3, 1997,
Authored by H. Joseph Coleman. Concurring: William W. Baker, Mary K. Becker.
The opinion of the court was delivered by: Coleman
COLEMAN, J. -- Kathy Welsch, a worker at a home for the developmentally disabled, appeals the lower court's dismissal of her claims arising out of sexual advances by a developmentally impaired resident ("the Resident") and allegedly furthered or ignored by the defendants ("Camelot"). We affirm because Welsch has not shown that her employer could have controlled the Resident's actions. And without the incidents involving the Resident, Welsch has alleged only one incident of sexual harassment implicating a co-worker, which is not sufficient to establish a sexual harassment case. We therefore affirm the dismissal of this claim. Welsch has, however, presented a prima facie case for the tort of outrage and we reverse the grant of summary judgment on this issue. The remaining claims were properly dismissed.
Summary judgment is proper only if there are no issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). When reviewing a summary judgment order, this court engages in the same inquiry as the trial court and considers only evidence and issues raised below. Washington Fed'n of State Employees v. Financial Management, 121 Wash. 2d 152, 156-57, 849 P.2d 1201 (1993). The moving party has the burden of showing the absence of any issue of material fact. If the moving party meets this burden, the opposing party must establish a prima facie case of all essential elements. See, e.g., Bruns v. Paccar, Inc., 77 Wash. App. 201, 208, 890 P.2d 469, review denied, 126 Wash. 2d 1025, 896 P.2d 64 (1995). While the facts are largely disputed, we present them in the light most favorable to the nonmoving party on summary judgment. See Marincovich v. Tarabochia, 114 Wash. 2d 271, 274, 787 P.2d 562 (1990).
As a client care technician at Camelot Society's Barclay Group Home from June 1990 until May 1993, Welsch, an obese woman, assisted developmentally impaired residents in integrating into the community. On May 28, 1992, the Resident, a severely retarded 55-year-old man with the comprehension level of a 2-year-old, moved close to Welsch and began rubbing his penis. Welsch reported this incident to her supervisor, Mirjam White, the next day, who laughed and showed no concern. Welsch requested to discontinue her one-on-one community outings with the Resident. That request was granted.
On July 22, 1992, the Resident came up behind Welsch and rubbed his pelvic region against her. Again, Welsch reported the incident to White, who did not provide her with any support and told her to be more stern with the Resident. During this time, Welsch declared that the Resident began to show a daily interest in her, often causing her to run from the front door of the group home to her office, where she would lock the door. The Resident approached Welsch sexually three times during this period--July 22, August 13, and October 4. Welsch had several conversations with White, who only told Welsch to be more stern. On one occasion, White told Welsch that she would ask the staff to be more supportive, but "[White] did not react as though this was a significant problem."
On November 12, 1992, Welsch brought another client home from an outing. Welsch and the client were very noisy in entering the home. Doug Beasley, a co-worker, and Welsch did not get along before this incident, and Welsch had previously requested not to work with him. That request had been granted, and the two interacted only when Welsch would drop off clients after outings.
Welsch locked herself in the office of one of her supervisor, Elaine Burke, to finish her reports. Beasley unlocked Burke's office door and let the Resident enter. The Resident came up close to her and began to rub his penis while Beasley stood in the doorway blocking her exit and laughed for several minutes. Welsch tried unsuccessfully to get the Resident to leave until finally, Beasley let the Resident out of the office.
The next day, Welsch reported the incident to Burke, who said that she would contact the psychologist. Burke did not conduct an investigation or take disciplinary action against Beasley.
A month later, a meeting with the psychologist was scheduled to deal with the Resident's behavior towards Welsch, but it was canceled because of snow. In January, the meeting was held with the psychologist, where they discussed ways to curb the Resident's behavior, including using pornographic magazines. At a later meeting, the staff provided their suggestions to curb the Resident's behavior. Welsch, who was not present at either meeting, claims that the meeting's minutes indicated that Beasley suggested using pornography involving heavyset women. The minutes, however, make no mention of this. Rather, they indicate that Beasley suggested that the Resident be provided opportunities for dating heavyset women. Additionally, Beasley and White testified that Beasley was against using any sort of pornography for the Resident.
In February, the Resident attempted to wash and enter Welsch's truck. When Welsch told White, White laughed and said that "maybe he should try to get [Welsch] flowers for Valentines Day." Later that month, Welsch filed a sexual harassment complaint with the Department of Social and Health Services.
The day after Welsch filed her complaint, White and Burke purchased pornographic magazines of heavyset women. The Resident's Guardian, Ann Oliver, testified that the home contacted her about using pornography and she disapproved. She did, however, approve other literature. Burke testified that the psychologist had not suggested purchasing materials with heavyset women but that she and White chose these magazines because the women that the Resident had approached tended to be overweight. The supervisors intended to cut out certain pictures of women in lingerie and make a magazine for the Resident. When they returned to the home and reviewed the magazines, Burke and White decided that the magazines were not appropriate. The magazines were never incorporated into the Resident's program nor presented to him.
The magazines were placed in an office drawer where several staff members, including Beasley, retrieved and viewed them. Welsch felt personally targeted by the magazines since they depicted women with similar physical characteristics. Welsch viewed the magazines and felt frightened for her personal safety because they depicted violent acts.
A few days later, Burke and the Administrator of Camelot, Steven Skeen, called a meeting in response to Welsch's complaint. Burke declared that she and Skeen immediately questioned Beasley and concluded that his explanation was more plausible than Welsch's.
White declared that another meeting was held in March, at which Welsch offered few suggestions to curb the Resident's behavior and stated that she was uncomfortable participating in a program that involved physical contact between her and the Resident. Welsch felt like she was on trial and was asked questions, such as, "What did you do to provoke the Resident?".
The final assault occurred in April when the Resident came up behind Welsch and rubbed his pelvic area against her. Another meeting was also held that month to discuss the Resident's behavior. At the meeting, staff members stated that it was difficult to know when Welsch would be arriving to pick up and drop off residents and that they could not always be sure that the Resident would be ...