Schonauer v. DCR Entertainment, Inc.

• Citation: 905 P.2d 392,79 Wn.App. 808
• Decision Date: 16 November 1995
• Docket Number: No. 17231-3-II,17231-3-II
• Court: Court of Appeals of Washington
• Parties: , 67 Empl. Prac. Dec. P 43,821 Susan M. SCHONAUER, a single person, Appellant, v. DCR ENTERTAINMENT, INC., a/k/a Fox's Topless Entertainment, a corporation licensed and doing business in the State of Washington, Respondent.

Page 808

79 Wn.App. 808

905 P.2d 392, 67 Empl. Prac. Dec. P 43,821

Susan M. SCHONAUER, a single person, Appellant, v. DCR ENTERTAINMENT, INC., a/k/a Fox's Topless Entertainment a corporation licensed and doing business in the State of Washington, Respondent.

No. 17231-3-II.

Court of Appeals of Washington,

Division 2.

Nov. 16, 1995.

Reconsideration Denied Dec. 1, 1995.

Paul A. Lindenmuth, Law Offices of Neil J. Hoff, Tacoma, for Appellant.

Warren Evans Martin, Gordon Thomas Honeywell et al., Tacoma, Sam J. Alberts, Ober Kaler Grimes Shriver, Washington, DC, for Respondent.

MORGAN, Judge.

In the five weeks between December 11, 1991, and January 12, 1992, Susan Schonauer worked sixteen days as a waitress at Fox's topless nightclub. Fox's is operated by DCR Entertainment. According to Schonauer's version of the facts, DCR's shift manager entered the women's dressing room almost every night she worked. On three successive Mondays, DCR's shift manager or his assistant solicited her to participate in DCR's "All Nude Review," a waitress contest staged on Monday nights. Schonauer refused and was soon fired. On appeal from an adverse summary judgment, Schonauer contends the trial court erred by dismissing her claims for sexual discrimination, retaliatory discharge, and outrage. We reverse and remand some claims for further proceedings.

I. FACTS

At the times material here, DCR operated a topless nightclub known as Fox's. Apparently, it served coffee and soft drinks, but not alcoholic beverages. It advertised for, and employed, both dancers and waitresses.

Each Monday night, the club held a nude waitress contest. ¹ According to DCR, waitresses had the option of participating, but were not required to do so.

On December 9 or 10, 1991, Schonauer, then age nineteen, responded to a DCR advertisement promising "$100 A DAY" for "Beverage Servers." After interviewing with DCR manager Steve Fueston, she was hired as a waitress, not a dancer. According to Schonauer, Fueston promised she could work 7:00 p.m. to 1:00 a.m. She wanted to get off at 1:00 a.m. because she had an infant son and her boyfriend worked days.

Schonauer started work on December 11. She was then told, for the first time, that she would not receive an hourly wage. Rather, she would receive $0.25 for each drink served, plus ninety percent of her tips. As a waitress, she was not required to wear provocative attire; the posted dress code for waitresses merely said: "No T-shirt, no shorts, no sweater."

During the first two weeks, Schonauer worked several 7:00 p.m. to 1:00 a.m. shifts. At some point, she received two hours of on-the-job training as a bartender. She declined to work as a bartender, because she would not have been able to get off at 1:00 a.m.

During the entire time Schonauer worked at the club, according to her, a DCR manager named Kurt Weisert "had a habit of regularly entering into the women's bathroom/locker/dressing room area. He did so about every day that I worked there and was even in there one time when I was sitting in a stall. His presence made me extremely uncomfortable." ²

By the third week, DCR was scheduling Schonauer to work until the club closed at 4:00 a.m. She complied but continued to request 7:00 p.m. to 1:00 a.m. shifts. According to her, she reported at least twenty minutes before each shift started, and called in sick only once. She was not rude to customers or other employees, and she was not reprimanded "except for refusing to dance in the waitress contest." ³

Schonauer's difficulties began on Monday, December 23, 1991, when DCR's shift manager, Weisert, handed her a white information card and asked her to participate in that night's nude waitress contest. Schonauer "immediately understood that he wanted [her] to dance on stage nude as part of the contest." ⁴ The white card "asked several questions about [her] sexual preferences, like '... what is [her] sexual fantasy preference, ... with how many men, ... where ...'. It had a place to pick 'a stage name', [her] age and other information." ⁵ Apparently, DCR wanted to broadcast this information to the audience during the contest.

As Weisert attempted to convince Schonauer to participate in the contest, he put his arm around her and said, "I really need you to do the contest." ⁶ When she refused, saying she had not been hired as a dancer, Weisert "walked away in a huff." ⁷ Several other waitresses then asked for advice on how to deal with Weisert, and she replied, "[J]ust say 'no.' " ⁸ No contest was held that night, because DCR could not persuade enough waitresses to participate. According to Schonauer, Weisert glared at her in an intimidating manner for the rest of the night, and she responded by trying to avoid him.

The next Monday, December 30, a DCR employee named Les gathered Schonauer and other waitresses near the bar. He said, "You're all going to do the contest tonight." ⁹ Schonauer said, "No." Undeterred, Les passed out white information cards and said, "You all do it for Kurt." ¹⁰ Schonauer and others reiterated, "No we don't." ¹¹ Les walked away, but soon returned to proclaim, "I've got no white cards back." ¹² No contest was held that night, and when Weisert arrived at the club later in the shift, Schonauer perceived him to be glaring at her.

On the third Monday, January 6, 1992, Weisert handed Schonauer a white information card and said, "I really need you to do the contest." ¹³ Schonauer refused and left the card on a counter. A few minutes later, Weisert handed her another card and said in a commanding voice, "You're doing the contest." ¹⁴ Schonauer again refused, put the card down, and avoided Weisert the rest of the evening. The nude waitress contest went forward, with the participants either stripping or flashing their lingerie.

On Sunday, January 12, Weisert fired Schonauer, saying only that she was no longer needed. DCR continued to advertise for waitresses and dancers.

A day or two later, Schonauer phoned Steve Fueston to ask why she had been fired. Fueston said he would talk to Weisert and call her back. According to her, however, it was she who called him back, and in that second phone call he said Weisert had fired her because she would not bartend and would not participate in the waitress contest.

After Schonauer had spoken with Fueston, her boyfriend, Glenn Kelley, phoned Weisert and tape recorded the following conversation without Weisert's knowledge or consent:

Kelley: Yea, I'm curious how come you don't want her working with you, there no more

Weisert: I have explained that to her

Kelley: Yes, well Steve [Fueston]

Weisert: Several occasions, and I think Steve just explained that to her

Kelley: Yes, he said it was because she wouldn't dance for you

Weisert: That's not what he said. I was sitting right there.

Kelley: He said because she wouldn't do things that you wanted, like bartend and dance. Steve said part of it was because she wouldn't dance and do the contest. And that's dancing.

Weisert: And inflexibility of her schedule.[ ¹⁵[

In May 1992, Schonauer sued, claiming sexual harassment, sexual discrimination, retaliatory discharge, outrage, failure to comply with Washington's minimum wage statute, and failure to comply with the federal Fair Labor Standards Act. The last two claims were dismissed by stipulation of the parties, after DCR settled with the Washington State Department of Labor and Industries.

DCR moved for summary judgment on the remaining claims, and each party submitted affidavits and declarations. Schonauer's affidavit set forth the facts stated above. It also acknowledged that her deposition had previously been taken and that she had not, at that time, remembered the second phone call to Fueston. Later, she refreshed her memory by reviewing a transcript of the Kelley-Weisert phone call.

For its part, DCR filed a declaration from Weisert stating that Schonauer had been terminated "based on [her] inability to report for shifts as scheduled, her curt and rude interactions with bartenders, other beverage servers, management, and customers, and other deficiencies in her performance, including spending a lot of time visiting with other persons at the club." ¹⁶ Weisert denied pressuring or forcing any waitress to participate in the nude waitress contest.

DCR also filed declarations from waitresses Chari Kamenzind and Aloha Anderson. They generally supported Weisert's claims. They also stated that they had refused to participate in the waitress contest, that their refusals had not resulted in retaliation, and that Schonauer had "frequently" or "routinely" been late for work.

The trial court granted summary judgment in favor of DCR. It also ruled that the Kelley-Weisert phone conversation had been illegally recorded, and thus was inadmissible. Schonauer then filed this appeal.

We engage in the same analysis as the trial court. Margola Associates v. Seattle, 121 Wash.2d 625, 634, 854 P.2d 23 (1993). We can uphold the trial court's grant of summary judgment only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). We must take the facts and reasonable inferences therefrom in the light most favorable to the nonmoving party, Schonauer. Hansen v. Friend, 118 Wash.2d 476, 485, 824 P.2d 483 (1992).

II. EVIDENTIAL ISSUES

The parties raise two evidential issues. One involves Schonauer's alleged second phone call to Fueston. The other involves Kelley's call to Weisert.

A. Second Phone Call to Fueston

DCR contends that Schonauer's second call to Fueston cannot be considered in these summary judgment proceedings. Its premise is that Schonauer, in her deposition, "testified that she had only had one conversation with Steve Fueston after her employment was terminated." ¹⁷ This premise, however, is not supported by the record. Schonauer discusses her first call to Fueston on page 52 of her deposition. She discusses Kelley's call to...