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Floeting v. Group Health Cooperative

Court of Appeals of Washington, Division 1

October 9, 2017

GROUP HEALTH COOPERATIVE, a Washington corporation, Respondent.

          DWYER, J.

         Washington's antidiscrimination law forbids sex discrimination in places of public accommodation. Sexual harassment is a form of sex discrimination. Accordingly, the law prohibits sexual harassment in places of public accommodation.

         Christopher Floeting alleges that he was a victim of sexual harassment perpetrated by an employee of Group Health Cooperative. His factual submissions to the trial court were sufficient to overcome Group Health's request for summary judgment dismissal of his lawsuit. Because the trial court ruled otherwise, we reverse.


         Floeting is a patient of Group Health, a nonprofit health care system. For over 30 years, Floeting visited Group Health's Northgate Medical Center to receive medical services and obtain prescription medicine.

         In early September 2012, Floeting told a Group Health employee that he wished to file a complaint regarding T.T., another Group Health employee. Floeting said that, while visiting the medical center over the past few months, T.T. had engaged in several inappropriate conversations with him, including telling him that, over the past weekend, she had locked her boyfriend in a bedroom, danced in front of him, and watched pornographic videos with him. Floeting told the Group Health employee (with whom he filed his complaint) that T.T.'s conduct was sexual harassment, that it made him feel very uncomfortable, and that he wanted T.T.'s conduct toward him to stop.

         A few weeks later, after conducting an investigation related to both Floeting's complaint and another patient's complaint, T.T.'s employment with Group Health was terminated.

         In July 2015, Floeting sued Group Health, alleging that the Washington Law Against Discrimination (WLAD)[1] provides for a right against sexual harassment by an employee of a place of public accommodation and that Group Health, because of T.T.'s conduct, had deprived him of this right. Group Health moved for summary judgment, arguing that the WLAD does not recognize such a right and, alternatively, that Floeting failed to present sufficient facts to support a sexual harassment claim.

         According to Floeting, as stated either in his deposition or his declaration in opposition to Group Health's summary judgment motion, T.T. had engaged in inappropriate conduct in addition to that documented in Group Health's record of his complaint. Floeting testified that, when he visited Group Health that summer, T.T. had repeatedly approached him in the waiting room, while he was standing in line waiting to receive medical services, or while he was walking down a hallway.

         Floeting also said that, when T.T. approached him, she had asked him, "[d]o you like sex, " told him that she gives "the best blowjobs, " stated that she liked how "hot" he made her, said that he had a "nice ass, " and offered that "I bet you have a big cock. I'd like to see it." Floeting detailed that on a few occasions when he was sitting in the waiting room, T.T. sat next to him, "leaned in, " and "pressed her breasts" against him while telling him "how much she liked" him. Floeting said that he repeatedly told T.T. to stop engaging with him in this way.

         According to Group Health's administrative records, Floeting visited the medical center on 11 occasions during the summer of 2012. On at least 7 of those 11 days, T.T. had been scheduled to work at the medical center at the same time.

         In response to the parties' briefing and evidentiary submissions, the trial court granted Group Health's motion for summary judgment and dismissed Floeting's lawsuit.

         Floeting now appeals.


         The various questions presented for our review arise from a summary judgment order.

We engage in a de novo review of a ruling granting summary judgment. Anderson v. Weslo, Inc., 79 Wn.App. 829, 833, 906 P.2d 336 (1995). Thus, we engage in the same inquiry as the trial court. Wilson Court Ltd. P'ship v. Tony Maroni's. Inc., 134 Wn.2d 692, 698, 952 P.2d 590 (1998). Summary judgment is properly granted when the pleadings, affidavits, depositions, and admissions on file demonstrate that there is no genuine issue of material fact and that the moving party is entitled to summary judgment as a matter of law. CR 56(c); Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 220, 802 P.2d 1360 (1991).

Green v. Normandy Park Riviera Section Cmty. Club. Inc., 137 Wn.App. 665, 681, 151 P.3d 1038 (2007). "In reviewing a summary judgment order, we view the facts and all reasonable inferences therefrom in the light most favorable to the nonmoving party." Holmquist v. King County. 182 Wn.App. 200, 207, 328 P.3d 1000 (2014) (citing Dumont v. City of Seattle. 148 Wn.App. 850, 861, 200 P.3d 764 (2009)).

         In the course of analyzing several of the questions presented, we must construe certain portions of the relevant code chapter. In interpreting the WLAD, we resort to familiar principles of statutory construction, including reviewing the statutory language for its plain meaning. State v. Arlene's Flowers, Inc.. 187 Wn.2d 804, 825-26, 389 P.3d 543 (2017). In so doing, we must deem no part of a statute "inoperative or superfluous unless it is the result of obvious mistake or error." Klein v. Pyrodyne Corp., 117 Wn.2d 1, 13, 810 P.2d 917, 817 P.2d 1359 (1991) (citing Cox v. Helenius, 103 Wn.2d 383, 387-88, 693 P.2d 683 (1985); Newschwander v. Bd. of Trs. of Wash. State Teachers Ret. Sys., 94 Wn.2d 701, 707, 620 P.2d 88 (1980)). "This requires that every word, clause, and sentence of a statute be given effect, if possible." Klein. 117 Wn.2d at 13. We must assign familiar legal terms in a statute their familiar legal meaning. Rasor v. Retail Credit Co.. 87 Wn.2d 516, 530, 554 P.2d 1041 (1976).

         In addition, the legislature has directed that the provisions of the WLAD "shall be construed liberally for the accomplishment of the purposes thereof." RCW 49.60.020.


         Floeting's cause of action against Group Health is premised on his claim of sexual harassment. But Floeting can have no such cause of action unless the WLAD protects patrons of places of public accommodation against sexual harassment. Group Health asserts that the WLAD affords no such protection. We disagree.

         Several provisions of the act are particularly pertinent to this inquiry. RCW 49.60.030(1) establishes that "[t]he right to be free from discrimination because of... sex ... is recognized as and declared to be a civil right." "'Sex' means gender." RCW 49.60.040(25). Moreover, the act provides that

[i]t shall be an unfair practice for any person or the person's agent or employee to commit an act which directly or indirectly results in any distinction, restriction, or discrimination, or the requiring of any person to pay a larger sum than the uniform rates charged other persons, or the refusing or withholding from any person the admission, patronage, custom, presence, frequenting, dwelling, staying, or lodging in any place of public ... accommodation except for conditions and limitations established by law and applicable to all persons, regardless of... sex.

RCW 49.60.215(1).

         The WLAD plainly affords protection against sex discrimination.

         Sexual harassment is a form of sex discrimination. Our Supreme Court recognized this more than three decades ago. In discussing the WLAD's guarantee against discrimination in employment, RCW 49.60.180, the court observed that "[s]exual harassment as a working condition unfairly handicaps an employee against whom it is directed in his or her work performance and as such is a barrier to sexual equality in the workplace." Glasgow v. Georgia-Pac. Corp.. 103 Wn.2d 401, 405, 693 P.2d 708 (1985).

         The United States Supreme Court has recognized the same as being true in the context of Title VII[2] actions. "Without question, when a supervisor sexually harasses a subordinate because of the subordinate's sex, that supervisor 'discriminate[s]' on the basis of sex." Meritor Sav. Bank. FSB v. Vinson. 477 U.S. 57, 64, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986) (alteration in original).

         This court has expressed a similar view. We have ruled sexual harassment to be a form of sex discrimination when it occurs in the course of real estate transactions, Tafoya v. Human Rights Comm'n. 177 Wn.App. 216, 223-25, 311 P.3d 70 (2013) (construing provisions of the WLAD), or in educational institutions, S.S. v. Alexander. 143 Wn.App. 75, 93-98, 177 P.3d 724 (2008) (construing Education Amendments of 1972, Title IX, 20 U.S.C. § 1681-1688).

         Sexual harassment subjects a person to a "distinction, restriction, or discrimination" because of that person's sex, in contravention of RCW 49.60.215(1). It causes a person "to be treated as not welcome, accepted, desired, or solicited" on the same basis as others, as proscribed by RCW 49.60.040(14). And, on the basis of the person's sex, it deprives that person of the right to "the full enjoyment of any of the accommodations, advantages, facilities, or privileges" of places of public accommodation, as addressed in RCW 49.60.030(1)(b).

         The WLAD prohibits sex discrimination in places of public accommodation. Sexual harassment is a form of sex discrimination. The WLAD affords protection against sexual harassment in places of public accommodation.



         "RCW 49.60.030(2)[3] authorizes private plaintiffs to bring suit for violations of the WLAD." Arlene's Flowers. 187 Wn.2d at 821.

To make out a prima facie case under the WLAD for discrimination in the public accommodations context, the plaintiff must establish four elements: (1) that the plaintiff is a member of a protected class, RCW 49.60.030(1); (2) that the defendant is a place of public accommodation, RCW 49.60.215; (3) that the defendant discriminated against the plaintiff, whether directly or indirectly, id.; and (4) that the discrimination occurred "because of the plaintiffs status or, in other words, that the protected status was a substantial factor causing the discrimination, RCW 49.60.030.

Arlene's Flowers. 187 Wn.2d at 821-22: see also Fell v. Spokane Transit Auth., 128 Wn.2d 618, 637, 911 P.2d 1319 (1996) (announcing similar construct for disability discrimination claims under RCW 49.60.215).

         In evaluating a claim premised on sexual harassment, as Floeting propounds, the first, second, and fourth elements will usually be fairly easy to analyze. Because of the nature of sexual harassment, the third element may often call for a nuanced or more complex analysis.

         Sexual harassment may often occur in circumstances quite different from those attendant to other forms of discrimination. One need only turn to Arlene's Flowers and Fell to see this in play. In both of those cases, the alleged discriminatory actions were the official acts of those in control of the public accommodation. See Arlene's Flowers. 187 Wn.2d 804 (discriminatory act was the decision to refuse service-made by owner); Fell, 128 Wn.2d 618 (discriminatory act was the decision to eliminate service-made by board of directors). But few corporate boards will formally mandate the sexual ...

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