Crownover v. State

• Decision Date: 29 November 2011
• Docket Number: No. 29043–3–III.,29043–3–III.
• Citation: 265 P.3d 971,165 Wash.App. 131
• Parties: James CROWNOVER, Harold Delgado, Roy Gilliam, Joel Havlina, Kelli Ginn, Appellants,Shirley Bumpaous, Plaintiff, v. The STATE of Washington, through its DEPARTMENT OF TRANSPORTATION, Respondent.
• Court: Washington Court of Appeals

165 Wash.App. 131

265 P.3d 971

James CROWNOVER, Harold Delgado, Roy Gilliam, Joel Havlina, Kelli Ginn, Appellants,Shirley Bumpaous, Plaintiff,

v.The STATE of Washington, through its DEPARTMENT OF TRANSPORTATION, Respondent.

No. 29043–3–III.

Court of Appeals of Washington, Division 3.

Nov. 29, 2011.

George Fearing, Attorney at Law, Kennewick, WA, for Appellants.

Amy Christina Clemmons, Washington State Attorney General, Spokane, WA, for Respondent.

BROWN, J.

[165 Wash.App. 135] ¶ 1 Employees Jim Crownover, Harold Delgado, Roy Gilliam, Joel Havlina, and Kelli Ginn appeal the summary dismissal of their discrimination suit against their employer, Washington's Department of Transportation (Department). Together, they contend the trial court's ruling ignores summary judgment jurisprudence and genuine issues of material fact remain regarding the hostile work environment, discriminatory employment conditions, and retaliation claims. Mr. Crownover, Mr. Gilliam, and Ms. Ginn contend erroneous constructive discharge rulings. Mr. Crownover, Mr. Delgado, Mr. Gilliam, and Mr. Havlina contend their claims are not time barred. We reject all contentions and affirm.

FACTS

¶ 2 In this summary judgment review, we view the facts in the light most favorable to the employees. City of Spokane v. Spokane County, 158 Wash.2d 661, 671, 146 P.3d 893 (2006).

¶ 3 Mr. Crownover, Mr. Delgado, Mr. Gilliam, and Mr. Havlina worked as highway maintenance technicians for the Department on the Connell crew. Kelli Ginn worked on the Pasco crew as a maintenance technician. Sometimes the two crews worked together. Mr. Gilliam was a lead technician for the Connell crew. The Department's management team is Tom Root, Michael D. Kukes and Tom Lenberg. Mr. Root served as the Maintenance and Operations Superintendent. Mr. Kukes became Supervisor for Pasco and Connell in 1999. In 2001, he rose to Assistant Superintendent for Pasco, Connell, and Prosser. Mr. Lenberg became the Pasco supervisor in February 2001, at which time he assumed supervisory duties over the Connell crew as well.

¶ 4 The Department's policy manual prohibits violence, threats and intimidation in the workplace and directs supervisors and managers to prevent such misconduct.

¶ 5 In the last half of the 1990s, Jim Leroue was lead technician for the Connell crew. Mr. Leroue had a temper and often engaged in angry outbursts. According to Mr. Crownover, Mr. Leroue threatened many times to beat him up. Mr. Crownover asked Superintendent Root for a transfer because of Mr. Leroue's conduct; Superintendent Root refused. He gave Mr. Crownover the option of staying or leaving employment with the Department. Because Mr. Gilliam was the senior member of the Connell crew, Mr. Crownover and Mr. Havlina spoke to Mr. Gilliam about Mr. Leroue's angry comments. In turn, during 1999, Mr. Gilliam repeatedly reported the threatening behavior of Mr. Leroue to Mr. Kukes. In 1999, Mr. Delgado overheard Mark Brewster, Pasco's lead technician, make sexual comments and use inappropriate language.

¶ 6 In 2000, the Connell crew wrote a no-confidence letter concerning Mr. Leroue. After the no-confidence letter, Julie Lougheed investigated. As a result, Superintendent Root grew angry at the Connell crew. Superintendent Root addressed the Connell crew the day after the no-confidence letter and expressed concern that the crew would destroy Mr. Leroue's career. Ms. Lougheed found that Mr. Leroue intimidated the Connell crew. Superintendent Root threatened the Connell crew members with closing the Connell maintenance facility and transferring the crew to Pasco.

¶ 7 In fall 2000, Mr. Brewster commented to Mr. Crownover he would like to “break in” his 16–year–old daughter. Clerk's Papers (CP) at 448. Mr. Crownover was offended.

¶ 8 In fall 2001, Mr. Kukes spoke with the Connell crew, including Mr. Crownover, Mr. Havlina, Mr. Delgado, and Mr. Gilliam at the Connell shop, allegedly mentioning that another superintendent's daughter had been used as a mattress by another employee. The young woman was Mr. Havlina's cousin. Mr. Havlina asked Mr. Kukes to stop making inappropriate comments, but he refused. Mr. Gilliam reported the incident to the Human Resources Consultant, but Mr. Kukes was not disciplined.

¶ 9 In summer 2001, Connell crew member Max Yager told many racial and sexual jokes. Mr. Yager told a joke about a Black man working in a watermelon field and having sex with watermelons. Mr. Crownover, among others, was offended by Max Yager's jokes. Mr. Yager focused much of his crude and racist remarks upon Hispanic Connell crew member, Mr. Delgado. Mr. Gilliam told Mr. Yager to end the racist ridicule.

[165 Wash.App. 138] ¶ 10 In fall 2003, while the Connell crew worked in Pasco, Mr. Yager approached Mr. Delgado and asked, “What color's my skin?” CP at 880. Mr. Delgado responded, “White.” Id. Mr. Yager asked, “What color's your skin?” CP at 880. Mr. Delgado responded, “Brown.” Id. Mr. Yager then declared, “Well, you [Delgado] get in the back.” Id. Mr. Crownover overheard Mr. Yager's remarks.

¶ 11 During a shift meeting in the winter of 2004, the crew, including Ms. Ginn, was eating hot dogs. Mr. Lenberg said in a crude voice to another coworker, “[Y]ou want a bite of my wiener?” CP at 889. Ms. Ginn was offended by the remarks.

¶ 12 Mr. Brewster was one of Ms. Ginn's lead technicians. He occasionally supervised the Connell crew. Mr. Crownover related Mr. Brewster bullied employees by yelling in their faces. Mr. Crownover felt Mr. Brewster was obsessed with sex and often remarked about sex with men or women. Mr. Brewster made several racial and sexual remarks to Mr. Gilliam and Mr. Havlina. After he became a supervisor in 2000 and before Mr. Brewster became a supervisor shortly after, Mr. Gilliam told Pasco management about Mr. Brewster's remarks, but there was no response.

¶ 13 At a meeting in the fall of 2003, Mr. Crownover told Superintendent Root about the inappropriate sexual comment Mr. Brewster earlier made about Mr. Crownover's daughter in 2001. Superintendent Root responded, “[I]f someone told [me] he would fuck [my] daughter, [I] would tell [him] that [I] will fuck his wife the next morning.” CP at 448. Ms. Ginn was subjected to Mr. Brewster's behavior and complained to Mr. Lenberg. No action was taken. In 2003, Mr. Lenberg commented Ms. Ginn needed to be a “cheerleader” for management. CP at 891.

¶ 14 In October 2003, Ms. Lougheed investigated Mr. Brewster's actions. She attempted to interview Department employees, but found the majority were afraid to be interviewed. One employee complained, “nothing's going to be done about it anyway, so ... why say anything?” CP at 744. Pasco management, on the other hand, reported Mr. Brewster “was doing really well.” CP at 712. In her December 2003 findings, Ms. Lougheed sustained some complaints of sexual harassment and intimidation against Mr. Brewster. She concluded Mr. Brewster intimidated employees.

¶ 15 Superintendent Root reminded Mr. Brewster to adhere to Department policies and procedures. The Connell crew complained Mr. Brewster was not adequately disciplined. After the Brewster investigation, Regional Administrator, Casey McGill, met with the Connell crew. Mr. Gilliam asked union steward, Susan Dinneen, to attend the meeting. According to Ms. Dinneen, the Connell crew feared retribution. At the meeting, the Connell crew described Mr. Brewster's behavior and asked not to work with him. The Connell crew questioned whether Pasco management should remain as supervisors, as they failed to end Mr. Brewster's conduct. Mr. Lenberg, Mr. Kukes, Superintendent Root, and Mr. Brewster remained in their positions. According to the employees after this incident, Pasco management increased the amount of time the Connell crew worked in Pasco under the direction of Mr. Brewster. The employees believed this was complaint retaliation.

¶ 16 In March 2004, Mr. Brewster told Mr. Havlina he would be working with the Connell crew in Pasco and they would have some “quality time.” CP at 309. The meaning of “quality time” is not explained and is disputed. And in 2004, Mr. Lenberg and Mr. Brewster assigned Mr. Crownover grunt work in Pasco; Mr. Crownover believed this was complaint retaliation. Mr. Gilliam was reprimanded for the Connell crew purportedly failing to properly place signs at a burn site. He felt the reprimand was unfair because Mr. Gilliam was not working as lead technician that day because of a doctor's appointment. Mr. Havlina's performance evaluations had been excellent before the Brewster investigation, but the evaluations thereafter plummeted. Pasco management gave preference for spray jobs to another employee over Mr. Havlina. Mr. Kukes often called the Connell crew “water asses.” CP at 681.

¶ 17 Mr. Crownover suffered anxiety and depression while working for the Department and resigned in 2005. Mr. Delgado was terminated in 2005 for his inability to physically perform the duties of a maintenance technician. Mr. Gilliam gave notice of terminating employment on January 3, 2006 and took sick leave and annual leave from August 15, 2005 to January 3, 2006; Mr. Gilliam quit even though Ms. Lougheed offered him a transfer to a different shop away from Connell. Ms. Ginn developed carpal tunnel syndrome and claimed emotional distress and other physical ailments due to management harassment. On October 13, 2005, Ms. Ginn resigned from employment, submitting a letter complimentary of her work experience with the Department. Mr. Havlina was terminated in 2005 for his inability to physically perform the duties.

¶ 18 The employees sued the Department in 2005, alleging individual claims of hostile work environment, wrongful discharge, retaliation, and discrimination. ¹ The court summarily dismissed all of Mr. Crownover's claims; partly dismissed Mr. Delgado's claims but allowing his racial discrimination and failure to accommodate claims to proceed; dismissed...