Loeffelholz v. Univ. of Wash.

• Decision Date: 13 September 2012
• Docket Number: No. 86511–6.,86511–6.
• Citation: 115 Fair Empl.Prac.Cas. (BNA) 1698,284 Ed. Law Rep. 533,285 P.3d 854
• Court: Washington Supreme Court
• Parties: Debra LOEFFELHOLZ, Respondent, v. UNIVERSITY OF WASHINGTON and James Lukehart and Jane Doe Lukehart, and the martial community comprised thereof, Petitioners.

285 P.3d 854

115 Fair Empl.Prac.Cas. (BNA) 1698

284 Ed. Law Rep. 533

Debra LOEFFELHOLZ, Respondent,

v.UNIVERSITY OF WASHINGTON and James Lukehart and Jane Doe Lukehart, and the martial community comprised thereof, Petitioners.

No. 86511–6.

Supreme Court of Washington, En Banc.

Argued June 28, 2012.

Decided Sept. 13, 2012.

Michael E. Withey, Law Offices of Michael Withey, Seattle, WA, for Respondent.

Robert Melvin Howie, Skylar Anne Sherwood, Riddell Williams PS, Howard Mark Goodfriend, Smith Goodfriend PS, Anne F. Preston, Attorney at Law, Jared Van Kirk, Garvey Schubert Barer, Seattle, WA, for Petitioners.

OWENS, J.

¶ 1 In 2006 the legislature amended the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW, to include sexual orientation as a protected class. After the amendment, Debra Loeffelholz sued the University of Washington and her superior, James Lukehart (collectively “University”), for discrimination based on sexual orientation. She alleges the sexual-orientation-based discrimination created a hostile work environment based on a series of preamendment acts and one potentially postamendment act. This case presents two related issues on appeal: (1) whether the WLAD amendment applies retroactively and, if not, whether preamendment discriminatory conduct is actionable and (2) whether a single comment made postamendment is a discriminatory act.

¶ 2 We hold that the WLAD amendment is not retroactive and that the preamendment conduct is not actionable as it was not unlawful when it occurred. The postamendment, allegedly discriminatory comment is arguably similar enough to the preamendment conduct to survive summary judgment. Consequently, we affirm the Court of Appeals only in reversing summary judgment for the University and clarify that the Court of Appeals erred in allowing recovery for preamendment conduct.

FACTS

¶ 3 Loeffelholz has worked in the University of Washington's asbestos office as a program coordinator since 2003. From 2003 to early 2006, Loeffelholz's supervisor was Lukehart. She had regular weekly meetings with him during this time. In early 2006, Lukehart ceased being her immediate supervisor. Lukehart, who was also a United States Army reservist, deployed to Iraq on June 25, 2006, and did not have any contact with Loeffelholz while overseas or any supervisory role over her upon returning.

¶ 4 Loeffelholz alleges that Lukehart created and maintained a hostile work environment against her based on her sexual orientation. The alleged discrimination began shortly after she started work in 2003 when Lukehart asked her if she was gay. After replying yes, Lukehart told her not to “flaunt it” around him. Clerk's Papers (CP) at 197. Lukehart's remark was the only explicit comment he made to Loeffelholz regarding her sexual orientation. Loeffelholz alleges that this remark injected hostility and intimidation into the work environment. She experienced this hostility and intimidation when Lukehart regularly discussed his hatred toward others and about getting revenge for perceived affronts. He also told Loeffelholz that he kept a gun in his vehicle and had anger management issues. Further, Lukehart revoked her flexible work schedule and denied her overtime. He also began denying her training opportunities; he refused to give her employment evaluations, despite repeated requests for them. Moreover, Loeffelholz alleges that Lukehart was instrumental in denying her advancement opportunities for two different positions. She also felt Lukehart was trying to intimidate her when she applied for the second position because he informed her that he knew of her application. She felt intimidated because she had believed that structural safeguards prevented Lukehart from knowing of her application.

¶ 5 The final allegedly discriminatory act• and the only act to potentially occur postamendment• occurred during Lukehart's last group meeting before deploying to Iraq. During this meeting, he told the group that he was “going to come back a very angry man” from Iraq. Id. at 342. The exact date of this comment is unclear from the record other than that it necessarily occurred before Lukehart's last day of work on June 23, 2006.

¶ 6 Postdeployment, the University began an investigation into Lukehart's managerial style. The University found that Lukehart was manipulative of people and information and that he was intimidating and inappropriately shared personal information. It also found that he violated the integrity of the recruitment process.

¶ 7 Also postdeployment, but before Lukehart's return, Loeffelholz learned that Lukehart had taken other actions to promote an oppressive environment. These actions included Lukehart telling others that he was proficient in using firearms, in killing people, in “getting people,” in using “shock and awe,” and in blood and gore. Id. at 7, 342. Lukehart apparently also asked other employees for information on Loeffelholz so that he could fire her. Similarly, he told other employees that he disliked Loeffelholz because she was gay and overweight.

¶ 8 Loeffelholz filed suit against the University in the King County Superior Court on May 13, 2009, alleging that Lukehart had discriminated against her based on her sexual orientation. She alleged a hostile work environment claim, a retaliation claim, and a disparate treatment claim. The trial court granted summary judgment in favor of the University, finding that each claim was barred by the applicable statutes of limitations. The trial court also granted Lukehart's motion to strike hearsay, which included much of the information Loeffelholz learned from the University's investigation. In granting summary judgment, the trial court found that it was unreasonable to say the “angry man” comment was motivated by Loeffelholz's sexual orientation. The trial court alternatively found that the amendment to chapter 49.60 RCW, which added sexual orientation as a protected class, was not retroactive. Accordingly, the trial court found that all actions before June 7, 2006, the amendment's effective date, were not actionable.

¶ 9 Loeffelholz appealed and the Court of Appeals reversed. The Court of Appeals held that whether Lukehart's “angry man” comment was a discriminatory act connected to her hostile work environment claim was a genuine issue of material fact. Loeffelholz v. Univ. of Wash., 162 Wash.App. 360, 367, 253 P.3d 483 (2011) (“[W]e conclude that the trial court erred by concluding as a matter of law that the comment was not sufficient to constitute a discriminatory act.”). The court also held that Loeffelholz was entitled to an inference that this “angry man” comment was made after May 13, 2006, and was therefore within the statute of limitations. Id. at 368, 253 P.3d 483. The Court of Appeals did hold that the WLAD amendment was not retroactive but that the lack of retroactivity did not impact Loeffelholz's claim so long as the “angry man” comment was made after the amendment's effective date, June 7, 2006. Id. at 369, 253 P.3d 483. The court determined that whether the comment occurred after June 7, 2006, was a genuine issue of material fact and therefore remanded the case to the trial court. Id. The University then petitioned for review, which we granted. Loeffelholz v. Univ. of Wash., 173 Wash.2d 1019, 272 P.3d 248 (2012).

Issues Presented

¶ 10 1. Is the alleged conduct that occurred before June 7, 2006, the effective date of the WLAD amendment, actionable?

¶ 11 2. Is the “angry man” comment a discriminatory act?

Analysis

A. Standard of Review

¶ 12 We review an order granting summary judgment de novo. Mohr v. Grantham, 172 Wash.2d 844, 859, 262 P.3d 490 (2011). Summary judgment is appropriate when “ ‘there is no genuine issue as to any material fact and ... the moving party is entitled to a judgment as a matter of law.’ ” Id. (quoting CR 56(c)). The evidence is reviewed in the light most favorable to the nonmoving party. Id. The nonmoving party “ ‘must set forth specific facts' “ to support its allegations and show a genuine issue of material fact. Tiffany Family Trust Corp. v. City of Kent, 155 Wash.2d 225, 230, 119 P.3d 325 (2005) (quoting CR 56(e)).

B. Preamendment Conduct

¶ 13 Allowing Loeffelholz to recover for preamendment conduct would constitute retroactive application of the WLAD amendment, thereby violating due process rights of the University. Whether the WLAD amendment applies retroactively is the preliminary issue before us. Loeffelholz argues the statute applies retroactively because it is remedial in nature. This is false. “We presume that a statute applies prospectively, unless the legislature intends otherwise,” or unless the amendment is remedial in nature. In re Pers. Restraint of Carrier, 173 Wash.2d 791, 809, 272 P.3d 209 (2012); Densley v. Dep't of Ret. Sys., 162 Wash.2d 210, 223, 173 P.3d 885 (2007). To determine whether the legislature intends otherwise, we may look to legislative history. Barstad v. Stewart Title Guar. Co., 145 Wash.2d 528, 537, 39 P.3d 984 (2002). A statute is not remedial when it creates a new right of action. Johnston v. Beneficial Mgmt. Corp. of Am., 85 Wash.2d 637, 641, 538 P.2d 510 (1975).

¶ 14 Here, the plain language and legislative history indicate that the WLAD amendment applies prospectively only. First, the plain language of the amendment does not explicitly state that the amendment applies retroactively. Laws of 2006, ch. 4. Loeffelholz's attempt to claim that chapter 49.60 RCW always prohibited all forms of discrimination is unconvincing, primarily because the list of protected classes in chapter 49.60 RCW is exhaustive, not representative. See Kilian v. Atkinson, 147 Wash.2d 16, 27, 50 P.3d 638 (2002) (refusing to recognize a cause of action for age discrimination “when age is quite obviously not included in the list of protected classes”); id. at 30, 50 P.3d 638 (Madsen, J., concurring). Accordingly, the plain language supports prospective application.

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