United States District Court, E.D. Washington
[Copyrighted Material Omitted]
For Brenda Arthur, an individual, Plaintiff: James McPhee, LEAD ATTORNEY, Dan James Gerard Keefe, Jr, Workland & Witherspoon PLLC, Spokane, WA.
For Whitman County, a public entity, Defendant: Michael E McFarland, Jr, LEAD ATTORNEY, Frieda K Zimmerman, Evans Craven & Lackie PS - SPO, Spokane, WA.
For Joe Reynolds, an individual, Defendant: Jerry John Moberg, Patrick Ross Moberg, LEAD ATTORNEYS, Jerry Moberg & Associates PS, Ephrata, WA.
ORDER RE SUMMARY JUDGMENT MOTIONS
LONNY R. SUKO, Senior United States District Judge.
BEFORE THE COURT are Defendant Whitman County's Motion For Summary Judgment (ECF No. 24) and Defendant Joe Reynolds' Motion For Summary Judgment (ECF No. 26). These motions were heard with oral argument on May 29, 2014.
This action was originally filed in Whitman County Superior Court and removed here on May 25, 2012. (ECF No. 2). Defendant has been employed by the Whitman County Assessor's Office since 2000. During her employment, she has been supervised by Defendant Joe Reynolds, the elected Whitman County Assessor. Plaintiff alleges that during her employment, she has been sexually harassed by Reynolds. Plaintiff asserts causes of actions against Whitman County and Reynolds under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e, et. seq. , and the Washington Law Against Discrimination (WLAD), RCW Chapter 49.60, for a sexually hostile
work environment and for retaliation. She also asserts common law causes of action for outrage and negligent infliction of emotional distress. The court previously dismissed Plaintiff's negligent supervision claim against Whitman County (ECF No. 35).
II. SUMMARY JUDGMENT STANDARD
The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court. Zweig v. Hearst Corp., 521 F.2d 1129 (9th Cir.), cert. denied, 423 U.S. 1025, 96 S.Ct. 469, 46 L.Ed.2d 399 (1975). Under Fed.R.Civ.P. 56, a party is entitled to summary judgment where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Semegen v. Weidner, 780 F.2d 727, 732 (9th Cir. 1985). Summary judgment is precluded if there exists a genuine dispute over a fact that might affect the outcome of the suit under the governing law. Anderson, 477 U.S. at 248.
The moving party has the initial burden to proven that no genuine issue of material fact exists. Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Once the moving party has carried its burden under Rule 56, " its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Id. The party opposing summary judgment must go beyond the pleadings to designate specific facts establishing a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In ruling on a motion for summary judgment, all inferences drawn from the underlying facts must be viewed in the light most favorable to the nonmovant. Matsushita, 475 U.S. at 587. Nonetheless, summary judgment is required against a party who fails to make a showing sufficient to establish an essential element of a claim, even if there are genuine factual disputes regarding other elements of the claim. Celotex, 477 U.S. at 322-23.
A. Timeliness (WLAD Hostile Work Environment Claim)
The statute of limitations for WLAD actions involving an alleged hostile work environment is three years. Antonius v. King County, 153 Wn.2d 256, 261-62, 103 P.3d 729 (2004). Defendants therefore assert that because Plaintiff's lawsuit was filed in July 2011, her WLAD claims can only be based on conduct that occurred after July 2008. Defendants assert Plaintiff cannot go forward on the alleged conduct that took place during August 2006, and during February or March 2008.
In Antonius, the Washington Supreme Court concluded that the U.S. Supreme Court's analysis in National R.R. Passenger Co. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), regarding Title VII hostile work environment
claims, should be applied to WLAD claims. Where a plaintiff alleges that " the workplace is permeated with 'discriminatory intimidation, ridicule, and insult' that is 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment,'" Morgan, 536 U.S. at 116, (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21, 114 S.Ct. 367, 126 L.Ed.2d 295 (1993)), these acts " collectively constitute one 'unlawful employment practice.'" Id. at 117. It does not matter " that some of the component acts of the hostile work environment fall outside the statutory time period." Id. As long as " an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by the court for the purposes of determining liability." Id.
As the Washington Supreme Court observed in Antonius, the U.S. Supreme Court in Morgan " treated individual discriminatory acts as constituting a unitary, indivisible hostile work environment claim," a " view . . . in contrast to previous case law from the [Washington] Court of Appeals treating the discriminatory acts as a continuing violation giving rise to an equitable exception to the statute of limitations." 153 Wn.2d at 258-59. The continuing violation doctrine was rejected in Morgan. Id. at 263. According to the U.S. Supreme Court in Morgan:
Hostile environment claims are different in kind from discrete acts. Their very nature involves repeated conduct. [Citation omitted]. The " unlawful employment practice" therefore cannot be said to occur on any particular day. It occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.
536 U.S. at 115 (emphasis added).
In Morgan, the plaintiff, in support of his hostile environment claim, presented evidence from a number of other employees that managers made racial jokes, performed racially derogatory acts, made negative comments regarding the capacity of blacks to be supervisors, and used various racial epithets. The Court concluded that " [a]lthough many of the acts upon which his claim depends occurred outside the . . . filing period, we cannot say that they are not part of the same actionable hostile environment claim." Id. at 120-21. " Such claims are based on the cumulative effect of individual acts." Id. at 115. " A hostile work environment claim is composed of a series of separate acts that collectively constitute one 'unlawful employment practice.'" Id. at 117, quoting 42 U.S.C. § 2000e-5(e)(1). Employers, however, are not left defenseless against employees who bring hostile work environment claims extending over long periods of time. They have recourse when a plaintiff unreasonably delays filing a charge. Morgan, 536 U.S. at 120. An employer may raise a laches defense which bars a plaintiff from maintaining a suit if he unreasonably delays in filing a suit and as a result harms the defendant. Id. at 121.
According to Plaintiff, in August 2006, Reynolds " made inappropriate comments about me and a co-worker being romantically involved while on work time and away from the office to other employees." (Arthur Declaration, ECF ...