NOTE: UNPUBLISHED OPINION,
Court of Appeals of Washington, Division
3.
Michelle WILSON, Appellant,
v.
No. 16648-1-III.
Appeal from
Counsel for Appellant(s), David L. Trick,
Counsel for Respondent(s), Robert C. Tenney, Meyer Fluegge &
Tenney, P.O. Box 22680, Yakima, WA 98907, Donald A. Treat, 4704 Cowden Pl,
Yakima, WA 98908-3737.
UNPUBLISHED OPINION
KURTZ.
*1 Michelle Wilson sued
FACTS
Michelle Wilson was hired to work as a phlebotomist by
In September, Mr. Igwe on occasion refused to assist Ms.
Wilson, referring to her tasks as “woman's work.” He also began making “rude
gestures, filthy comments,” and he stared at Ms. Wilson in a sexual manner. He
told Ms. Wilson that for a white girl, she “had a nice butt” and he whistled at
her. He told her in his culture, it was acceptable for
married men to have sex with other women. When Ms. Wilson responded that her
husband would never do that to her, he asked what she did in bed that was so
spectacular to keep her husband satisfied. Mr. Igwe also told her he knew white
women liked black men because they had bigger penises, and that he knew white
women were well known for engaging in oral sex.
Ms. Wilson told her supervisor, Jim Grettner, that Mr. Igwe
was refusing to assist her. According to Ms. Wilson, Mr. Grettner attributed
this problem to Ms. Wilson's sex, stating that in Mr. Igwe's native culture,
women were subordinate.
In late October 1995, Ms. Wilson reported Mr. Igwe's
sexually related comments and behavior to Kelley Roberts, the Human Resource
Director for the hospital. Ms. Wilson gave her a short written statement
containing the allegations. Ms. Roberts assured Ms. Wilson the claim would be
kept confidential.
After Ms. Wilson complained about Mr. Igwe, Mr. Grettner and
Ms. Roberts separately met with Mr. Igwe. Mr. Grettner met with Mr. Igwe to
discuss the allegations. Mr. Igwe then contacted Ms. Roberts. She informed Mr.
Igwe about the nature of the allegations and advised him about the implications
of harassing a co-worker. No disciplinary action was taken against Mr. Igwe.
Mr. Grettner then increased his supervision of the area in which Ms. Wilson and
Mr. Igwe worked.
After Ms. Wilson made her complaint to Ms. Roberts, Mr. Igwe
stopped making sexual remarks. He did, however, continue to refuse to assist
her. This conduct included refusing to answer her work-related questions and to
relay phone messages to her. Ms. Wilson reported these problems to Ms. Roberts
and Mr. Grettner, and told them she was frightened of Mr. Igwe. She asked to be
assigned to a different work area or to have Mr. Igwe transferred. In response,
Mr. Grettner told her if she could not work with Mr. Igwe, she should find
another job.
*2 Ms. Wilson states she learned about other workers
experiencing similar problems with Mr. Igwe. She identified a kitchen worker
named Lucy who she believes was subjected to similar sexual comments by Mr.
Igwe. She also alleges a co-worker in her lab knew others who had complained of
incidents of sexual harassment by Mr. Igwe.
During this period, Ms. Wilson began having health problems.
She was vomiting and had diarrhea immediately before and after work hours, and
as a result she lost 20 pounds. Ms. Wilson's physician advised her the stress of work was the cause of her health problems
and she should leave or face more problems.
In early December, Ms. Wilson began looking for other
employment. She submitted a letter of resignation on
ANALYSIS
Did the court err by striking certain statements from Ms.
Wilson's sworn declaration? The superior court excluded the statements
attributed to Ms. Wilson's co-workers and her doctor because they were hearsay.
Specifically, the statements were excluded because they were
introduced to show (1) Mr. Igwe had harassed others, and (2) Ms. Wilson had to
quit under her doctor's orders. In order for the court to consider these
statements, the court would have required Ms. Wilson to obtain sworn statements
from the individuals who had personal knowledge. Ms. Wilson contends these
statements were admissible because they were not being offered for the truth of
the matter asserted, but rather they were offered to show her mental or
emotional state.
Summary judgment affidavits must be made based on personal
knowledge and must set forth facts admissible in evidence. CR
56(e). Ms. Wilson contends the court incorrectly characterized several
statements as hearsay, and then erred by striking those portions of the
declaration. The statements excluded by the court were attributed to co-workers
and to Ms. Wilson's physician:
I had other employees, and in particular, Mrs. Reyes, tell
me a kitchen worker had had the same kind of contact with Mr. Igwe. The kitchen
worker's name was “Lucy” and I talked to Lucy and she had had similar
experiences where he had patted her on the bottom and while her husband or
boyfriend had come in, Henry commented to her that he could see Lucy liked them
big and when she asked what he meant, he pointed to his penis and held his
hands about a foot apart and said he and Lucy would get along real well. Lucy
also told me there had been a prior sexual harassment complaint in February,
1995 involving someone in the business office.
*3 ... Chuck, a co-worker in the lab, told me I was being
sexually harassed when I complained to him about Mr. Igwe's conduct. He told me
I wasn't the first that Mr. Igwe harassed although he didn't give me any more
detail than that.
....
... I had a series of tests in November that were all normal
and my doctor advised me to quit for my health as there was no medical reason
for my weight loss other than the stress I was under at work because of Mr.
Igwe and the failure of the hospital to take any action regarding him.
Ms. Wilson alleges the hospital did nothing to investigate
Mr. Igwe's harassment. She then relates stories she heard from other hospital
employees regarding Mr. Igwe's harassing behavior. One of Ms. Wilson's claims
rests on the theory of constructive discharge. Central to this claim is the
allegation the hospital undertook no investigation of Mr. Igwe's behavior. Ms.
Wilson's underlying premise is that had the hospital investigated, it would
have discovered Mr. Igwe was behaving in a similar manner with other female
employees.
The hospital's refusal to investigate Mr. Igwe and the
information it should have uncovered in an investigation form the basis of Ms.
Wilson's constructive discharge claim. As such, the affidavit statements
attributed to co-workers regarding Mr. Igwe's conduct toward others constitutes
hearsay. These statements do not reveal Ms. Wilson's perception of the
hospital's failure to investigate, but rather reveal additional allegations
against Mr. Igwe. These statements are offered for the truth of the matter, for
if the statements were unfounded, the hospital's failure to investigate other
incidents caused Ms. Wilson no harm. Because these statements were offered to
prove the truth of the matter, they were properly excluded as hearsay.
The statements attributed to Ms. Wilson's physician were
also properly excluded. Ms. Wilson again contends these statements were not
introduced for the truth of the matter, but rather to offer evidence that a
reasonable person in Ms. Wilson's position would have found her working
situation intolerable. As with the previous statements, these statements are
properly excluded as hearsay. Ms. Wilson is able to testify about her various
symptoms and deteriorating health, but she may not offer her physician's
opinion. The opinion that Ms. Wilson's symptoms resulted from her working
conditions also forms a basis of the constructive discharge claim. As a result,
her physician's opinion about the cause of her ailments was offered to prove
the truth of the matter and was thus properly excluded as hearsay.
Did material issues of fact exist
precluding summary judgment? Ms. Wilson contends summary judgment was improper
because she established a prima facie case that her employer created a hostile
work environment as a result of ongoing gender discrimination. She asserts
gender discrimination is distinct from sex discrimination insofar as the former
does not require a showing of sexual behavior but rather discrimination because
of the plaintiff's gender. While the hospital recognized the sexual harassment
Ms. Wilson suffered, she maintains it failed to address the gender
discrimination by Mr. Igwe.
*4 If a defendant, as the party moving for summary judgment,
meets the initial burden of showing the absence of a genuine issue of material
fact, the nonmoving party must make a showing sufficient to establish all
essential elements of her claim. Doe v. Department of Transp., 85 Wash.App. 143, 147, 931 P.2d 196, review denied, 132
Wash.2d 1012, 940 P.2d 653 (1997). If a plaintiff fails to raise a genuine
issue of material fact on any single element of the claim, summary judgment
dismissal is appropriate. See Payne v. Children's Home Soc'y, 77 Wash.App. 507,
516, 892 P.2d 1102, review denied, 127 Wn.2d 1012 (1995).
Sexual Harassment. To establish a
hostile work environment in a sexual harassment case, an employee must prove:
(1) the harassment was unwelcome; (2) the harassment was because of sex; (3)
the harassment affected the terms or conditions of employment; and (4) the
harassment is imputed to the employer.
To hold an employer responsible for a discriminatory work
environment created by a plaintiff's co-workers, the employee must show the
employer (a) authorized, knew, or should have known of the harassment, and (b)
failed to take reasonably prompt and adequate corrective action.
Here, it is undisputed the employer, through Mr. Grettner
and Ms. Roberts, spoke to Mr. Igwe about his inappropriate comments. Ms. Wilson
herself admits that after these meetings, he stopped making sexual remarks.
Thus,
Talking to Mr. Igwe was a step reasonably calculated to end
his refusals to assist her. Ms. Wilson estimated that over the six-month period
she worked with Mr. Igwe, he refused to help her 10 times. She admitted that he
did not refuse to help her every time she asked. It is not clear how many of
the refusals were after Mr. Grettner spoke to Mr. Igwe. The treatment cannot be
imputed to the hospital, because it responded to Ms. Wilson's complaints and
took action that was reasonably calculated to correct Mr. Igwe's behavior.
These claims were properly dismissed on summary judgment.
*5 Constructive Discharge. Ms.
Wilson contends she was constructively discharged because
A resignation is presumed to be voluntary, and the claimant
bears the burden of introducing evidence to rebut that presumption. Sneed, 80 Wash.App. at 849, 912 P.2d 1035;
Micone v. Town of Steilacoom Civil Serv. Comm'n, 44 Wash.App. 636, 642, 722
P.2d 1369, review denied, 107 Wn.2d 1010 (1986); see Christie v.
Generally, whether working conditions have risen to an
“intolerable” level is a factual question for the jury. Sneed, 80 Wash.App. at 849-50, 912 P.2d
1035; Sanchez v. City of
Questions of fact, however, may be determined as a matter of
law when there is only one conclusion that reasonable minds could reach.
Michelsen v. Boeing Co., 63 Wash.App. 917, 920, 826
P.2d 214 (1991); see also Sneed, 80 Wash.App. at 850,
912 P.2d 1035 (affirming summary judgment for employer in employee's
constructive discharge claim and holding, as a matter of law, that the
employee's allegations did not support the claim). Here, the trial court held
that the employer simply maintained the current shift assignments after being
advised the harassment had stopped, and thus did not create the alleged
intolerable working condition.
Ms. Wilson alleges the hospital created an intolerable
working environment because (1) it failed to conduct an investigation into the allegations, (2) it breached the promise of confidentiality
and told Mr. Igwe of the details reported by Ms. Wilson, and (3) denied her
requests for a transfer to another position. However, these allegations do not
arise to “aggravating circumstances” or a “continuous pattern of discriminatory
treatment” necessary to support a constructive discharge claim. The trial court
was correct in determining the hospital did not create the condition, and
actually took steps reasonably calculated to address Ms. Wilson's complaints.
Reasonable minds could reach but one conclusion:
*6 Ms. Wilson failed to meet her burden of proving her
resignation was involuntary, and she was constructively discharged.
The judgment of the superior court is affirmed.
The majority of the panel has determined this opinion will
not be printed in the Washington Appellate Reports, but it will be filed for
public record pursuant to RCW 2.06.040.
SCHULTHEIS, C.J., and BROWN, J., concur.
Wash.App. Div. 3,1998.
Not Reported in P.2d, 91 Wash.App. 1074, 1998 WL 464943 (Wash.App. Div. 3)