Kahn v. Salerno

• Decision Date: 17 February 1998
• Docket Number: No. 39180-1-I,39180-1-I
• Citation: 90 Wn.App. 110,951 P.2d 321
• Court: Washington Court of Appeals
• Parties: Tina KAHN, Appellant, v. Charles SALERNO and Kristen Salerno, husband and wife; Armand Lee Hoch and Melody Hoch, husband and wife, Respondents.

Page 110

90 Wn.App. 110

951 P.2d 321

Tina KAHN, Appellant, v. Charles SALERNO and Kristen Salerno, husband and wife;

Armand Lee Hoch and Melody Hoch, husband and wife,

Respondents.

No. 39180-1-I.

Court of Appeals of Washington,

Division 1.

Feb. 17, 1998.

Terry Thomson, Aarion Okrent, Seattle, for Appellant

Curman Sebree, Seattle, for Respondents.

KENNEDY, Judge.

Tina Kahn appeals the trial court's order granting summary judgment to Charles Salerno and Kristen Salerno, husband and wife, and Armand Lee Hoch and Melody Hoch, husband and wife, contending that genuine issues of material fact exist with respect to her hostile work environment, retaliatory termination, and fraud claims. We agree and reverse.

FACTS

From September 1991 until her discharge in March 1994, Appellant Tina Kahn worked part-time on a flexible work schedule at Salerno Agency, a life insurance agency owned by Respondents Charles Salerno (Salerno) and Kristen Salerno. During that time, Respondents Armand Lee Hoch (Hoch) and his wife, Melody Hoch, also worked for Salerno Agency. Although Kahn was initially hired as a clerical employee, Salerno increased Kahn's responsibilities and gave her new titles, including "functional specialist," "recruiter," and "human resources person." Kahn maintains that Salerno consistently praised her job performance and never reprimanded her. But Salerno contends that he reprimanded her on several occasions because she was rude to Hoch. Kahn also contends that Salerno described her interpersonal skills as "excellent." Salerno maintains that Hoch's clients complained that Kahn was rude to them on the phone. Nonetheless, Salerno gave Kahn at least two pay increases during her employment, the most recent occurring in January 1994, one month before she was Employees at Salerno Agency describe Hoch as a physically intimidating, large man with a commanding presence and a booming voice. In the office, Hoch would frequently lose his temper, bang office walls, and throw objects. Kahn maintains that Hoch "would often launch into the most intimidating, vile, and despicable verbal abuse ... [that] could last for hours or all day." Clerk's Papers at 444-45. She contends that this behavior was directed at sales agents or employees of "whatever sex." Clerk's Papers at 446. Michael Smiton, a former office manager, described Hoch's behavior:

discharged. In her final performance review, Salerno commended Kahn on her professional appearance, her ability to relate well to clients, and her work on recruiting and licensing of prospective sales agents. Kahn maintains that Salerno did not criticize her work in this or any other performance review.

In my opinion, any normal, well-adjusted human being, male or female, would reasonably fear for his or her physical safety when Lee Hoch was embroiled in one of his prolonged outbursts. I was concerned on occasion about my own physical safety and having to defend myself, when I was the target of his tirades.

Clerk's Papers at 473. Kahn also felt her personal safety was at risk during Hoch's tirades. In addition, Hoch used the words "fuck," "fucking," "bitch," "god damn bitch," and "fucking bitch" in his conversations with Kahn. Clerk's Papers at 447. She alleges that Hoch looked her up and down, and stared at her breasts. In addition, Kahn alleges that Hoch's tone, volume, facial gestures, physical gestures, and mannerisms "took on very uncomfortable and disturbing sexual overtones." Clerk's Papers at 446.

Kahn complained to Salerno about Hoch's behavior on many occasions. Salerno attempted to remedy the situation by working with Hoch to improve his office conduct and, ultimately, by moving Hoch to a different floor in the office building. Salerno's actions initially reduced Kahn's contact In late February 1994, Salerno decided to discharge Kahn. Although Kahn contends he made this decision because of her complaints about Hoch's language and behavior, Salerno asserts it was because he was not pleased with Kahn's behavior in recent days. In addition, despite the wholly positive performance review he gave Kahn one month earlier, Salerno maintains that he was dissatisfied with the quality of her work over the prior three to six months. On February 28, 1994, Salerno requested that Kahn resign in lieu of termination. Kahn claims that she asked Salerno if she had a choice, and that Salerno responded, "no." Clerk's Papers at 454. In a termination memo, Salerno explained, "I wouldn't be a good friend or boss if I allowed you to remain in an environment that you were not comfortable with." Clerk's Papers at 621. He mailed Kahn a written notice of termination effective March 9, 1994.

with Hoch, but the confrontations with Hoch ultimately resumed.

On September 26, 1994, Kahn filed a suit against Salerno and Hoch in King County Superior Court. Against Salerno, she alleged negligent retention and supervision of Hoch, the creation and maintenance of a hostile work environment (sexual harassment), retaliatory termination of Kahn for reporting the hostile work environment, and fraud in withholding her health benefits. Against Salerno and Hoch, she alleged knowing, reckless, or negligent infliction of emotional distress, and violations of the Washington Consumer Protection Act (CPA). ¹ The trial court granted partial summary judgment on December 5, 1995, as to the hostile work environment, retaliation, fraud, and CPA claims, but denied summary judgment as to the negligent retention and supervision, and reckless or negligent infliction of emotional distress claims. The trial court then

granted Kahn's CR 41(a) motion for the voluntary dismissal of her remaining claims. This appeal followed. Salerno requests attorney fees on appeal.

DISCUSSION

When reviewing an order granting summary judgment, this court engages in the same inquiry as the trial court. White v. State, 131 Wash.2d 1, 8-9, 929 P.2d 396 (1997); Fisher v. Aldi Tire, Inc., 78 Wash.App. 902, 906, 902 P.2d 166 (1995), review denied, 128 Wash.2d 1025, 913 P.2d 816 (1996). All facts and reasonable inferences must be considered in the light most favorable to the nonmoving party. Mountain Park Homeowners Ass'n v. Tydings, 125 Wash.2d 337, 341, 883 P.2d 1383 (1994). We will affirm an order granting summary judgment if there are no genuine issues of material fact, i.e., if from all of the evidence, reasonable persons could reach but one conclusion and the moving party is entitled to judgment as a matter of law. CR 56(c); Wojcik v. Chrysler Corp., 50 Wash.App. 849, 854, 751 P.2d 854 (1988).

The party moving for summary judgment has the initial burden of showing there is no dispute as to any issue of material fact; but once that burden is met, the burden shifts to the non-moving party to establish the existence of an element essential to its case. Hiatt v. Walker Chevrolet Co., 120 Wash.2d, 57, 66, 837 P.2d 618 (1992). "In order for a plaintiff alleging discrimination in the workplace to overcome a motion for summary judgment, the worker must do more than express an opinion or make conclusory statements." Marquis v. City of Spokane, 130 Wash.2d 97, 105, 922 P.2d 43 (1996) (citing Grimwood v. University of Puget Sound, Inc., 110 Wash.2d 355, 359-60, 753 P.2d 517 (1988)). To defeat summary judgment, the employee must establish specific and material facts to support each element of his or her prima facie case. Id. (citing Hiatt, 120 Wash.2d at 66-67, 837 P.2d 618).

I. Hostile Work Environment

Washington's law against discrimination, Ch. 49.60 RCW, protects employees from sexual harassment; one form of sexual harassment is maintaining a hostile work environment. ² Coville v. Cobarc Servs., Inc., 73 Wash.App. 433, 438, 869 P.2d 1103 (1994) (citing Glasgow v. Georgia-Pacific Corp., 103 Wash.2d 401, 406-07, 693 P.2d 708 (1985)). Gender-based harassment, which need not be sexual in nature, is actionable as discrimination under this statute. Payne v. Children's Home Socy., 77 Wash.App. 507, 513, 892 P.2d 1102, review denied, 127 Wash.2d 1012, 902 P.2d 164 (1995). Ch. 49.60 RCW provides, in relevant part, as follows: "It is an unfair practice for any employer ... [t]o discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability[.]" RCW 49.60.180(3).

Laws against discrimination are "not directed against unpleasantness per se. " Gleason v. Mesirow Fin., Inc., 118 F.3d 1134, 1145 (7th Cir.1997) (quoting Carr v. Allison Gas Turbine Div., 32 F.3d 1007, 1009 (7th Cir.1994)); Harris v. Forklift Sys., Inc., 510 U.S. 17, 23, 114 S.Ct. 367, 371, 126 L.Ed.2d 295 (1993). There is a line that separates the merely vulgar and mildly offensive from the deeply offensive and sexually harassing. Carr, 32 F.3d at 1010. Simple vulgarity does not give rise to a cause of action. "[I]t is not any and all harassment that is actionable under [laws against discrimination] ... but (for our purposes here) only harassment that is in some way linked to the plaintiff's sex." Doe v. City of Belleville, 119 F.3d 563, 570 (7th Cir.1997) (citing Carr, 32 F.3d at 1009). We emphasize this distinction to prevent leaving a contrary impression in the course of this opinion.

To establish a prima facie case for workplace harassment, the employee must identify the offensive contact and then prove that it is unwelcome, occurred because of sex or gender, affected the terms or conditions of employment, and can be imputed to the employer. Doe v. Department of Transp., 85 Wash.App. 143, 148, 931 P.2d 196, review denied,132 Wash.2d 1012, 940 P.2d 653 (1997); (citing Glasgow, 103 Wash.2d at 406-07, 693 P.2d 708); Coville, 73 Wash.App. at 438, 869 P.2d 1103.

A. Offensive Contact

Kahn identifies the offensive contact as Hoch's frequent use of the words "fuck," "fucking," "bitch," "god damn bitch," and "fucking bitch" in...