Renz v. Spokane Eye Clinic, PS

• Decision Date: 19 December 2002
• Docket Number: No. 20679-3-III.,20679-3-III.
• Citation: 114 Wash.App. 611,60 P.3d 106
• Court: Washington Court of Appeals
• Parties: Laura V. RENZ, a single woman, Appellant, v. SPOKANE EYE CLINIC, P.S., d/b/a Spokane Optical Center, and Kenneth Sweatt and Jane Doe Sweatt, husband and wife, Respondents.

60 P.3d 106

114 Wash.App. 611

Laura V. RENZ, a single woman, Appellant, v. SPOKANE EYE CLINIC, P.S., d/b/a Spokane Optical Center, and Kenneth Sweatt and Jane Doe Sweatt, husband and wife, Respondents.

No. 20679-3-III.

Court of Appeals of Washington, Division 3, Panel Nine.

December 19, 2002.

David J. Carlson, Spokane, for Appellant.

James B. King, Christopher J. Kerley, Keefe, King & Bowman, Stephen R. Matthews, Phillabaum, Ledlin, Matthews & Gaffney-Brown, Spokane, for Respondents.

SWEENEY, J.

Both federal and state law prohibit an employer from discharging an employee for complaining about illegal conduct, including sexual harassment. 42 U.S.C.A. § 2000e-2 (West 1994); RCW 49.60.180. Laura V. Renz complained about her boss's offensive sexually laden remarks. Viewing the evidence in a light most favorable to Ms. Renz, she was then reevaluated and fired. The dispositive question here is whether she made an adequate showing that the Spokane Eye Clinic's proffered nondiscriminatory reasons for discharging her were pretextual. We conclude that her showing is sufficient to submit the question to a jury. And we therefore reverse the summary dismissal of her complaint.

FACTS

The court dismissed Ms. Renz's complaint on the employer's motion for summary judgment. We view the factual backdrop for this case then in a light most favorable to the nonmoving party, Ms. Renz. Ultimately a jury may, or may not, accept this version of what happened and why.

Ms. Renz had been a licensed optician since 1990. She went to work for the Spokane Eye Clinic on March 24, 1997, subject to a 90-day probationary period. Kenneth Sweatt managed the Clinic and supervised Ms. Renz. At some point before her probation expired, Mr. Sweatt told Ms. Renz that she was doing well and would be a full-time employee on her 90-day anniversary.

But in June, Mr. Sweatt made a comment to Ms. Renz about "eating his banana." Clerk's Papers (CP) at 70. She took the comment as a sexual innuendo. On June 24 (her three-month anniversary), Mr. Sweatt told Ms. Renz that "everything was great." And they would be "keeping [her]." CP at 70. She then received benefits including medical and dental insurance. The Clinic also paid her for her birthday (June 30) as a paid holiday and paid for the Fourth of July holiday—both benefits available only to full-time employees.

In late June, Ms. Renz was fixing her hair in a back room. Mr. Sweatt asked what she was doing. Ms. Renz responded "getting pretty" because she had a dinner date with her boyfriend. CP at 70, 77. Mr. Sweatt said to "be sure to use protection." CP at 70.

Ms. Renz mentioned the comment to LeRoy Kunz, a long-time employee of the Clinic. Mr. Kunz responded that Mr. Sweatt had made similar comments to other women and suggested that Ms. Renz complain about it. Immediately after this conversation, Mr. Sweatt walked out from behind some nearby shelving. He apparently overheard the conversation between Ms. Renz and Mr. Kunz. On July 7, Mr. Sweatt told Ms. Renz that her probationary period would be extended for 30 days.

On July 10, Ms. Renz attended a customer service seminar. Mr. Sweatt asked her to prepare a report on the seminar. He then criticized the report because it was handwritten and of unsatisfactory quality.

On July 14, Ms. Renz was working with customers. She knelt down to get something from a cabinet. Mr. Sweatt approached and said, "on your knees again? Didn't you spend most of your weekend that way?" CP at 72, 77. Two customers were nearby. One laughed. The other appeared embarrassed. Ms. Renz reported the comment to Rosemary O'Leary, the Clinic's Human Resource Manager. Ms. O'Leary said Ms. Renz would have to report in writing. Ms. Renz was hesitant. But Ms. O'Leary said a report would not affect her job.

On July 15, Ms. Renz complained to Ms. O'Leary in writing about Mr. Sweatt's comments. The Clinic reported the complaint to Mr. Sweatt that same day. The Clinic immediately instructed Mr. Sweatt to have no further contact with Ms. Renz.

Within a day of filing the complaint, Mr. Sweatt sent Ms. Renz to two other Clinic locations in Spokane for a week's evaluation by others. Both submitted negative evaluations during the last days of Ms. Renz's employment.

On August 1, the Clinic terminated Ms. Renz:

On July 1, 1997[¹] you were presented with written notice that your probationary period was being extended 30 days. This extension was necessary to further evaluate your performance in the following areas: customer service, listening skills, problem solving complaints with customers and determining patient's needs.

Your skills have been independently evaluated by Ken Sweatt, Barb Schultz, and Joe Tierney. They have determined that you have not made sufficient progress in these areas to warrant offering you continued employment. Please accept this communication as written notice that your employment is being terminated effective today.

CP at 78.

PROCEDURAL HISTORY

Ms. Renz sued Mr. Sweatt and the Clinic for: (1) discrimination, retaliatory discharge; (2) breach of contract; (3) breach of implied covenant of good faith and fair dealing; (4) wrongful discharge; and (5) intentional infliction of emotional distress.

The court permitted Ms. Renz to amend her complaint to add a cause of action for hostile work environment based on sexual harassment.

In a series of summary judgment orders, the court dismissed her complaint. She effectively appeals the dismissal of her claim for retaliatory discharge only. See RAP 10.3(g); Goehle v. Fred Hutchinson Cancer Research Ctr., 100 Wash.App. 609, 620, 1 P.3d 579 (2000) (appellate court will not consider an issue that the appellant has failed to assign as error).

DISCUSSION

RETALIATORY DISCHARGE CLAIM

We review a summary dismissal de novo. Hubbard v. Spokane County, 146 Wash.2d 699, 706, 50 P.3d 602 (2002) (citing Ellis v. City of Seattle, 142 Wash.2d 450, 458, 13 P.3d 1065 (2000)). "`Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.'" Id. at 707, 50 P.3d 602 (quoting Ellis, 142 Wash.2d at 458, 13 P.3d 1065). A material fact is one upon which the outcome of the litigation depends. Greater Harbor 2000 v. City of Seattle, 132 Wash.2d 267, 279, 937 P.2d 1082 (1997).

We look at the evidence and reasonable inferences in the light most favorable to the nonmoving party. Hubbard, 146 Wash.2d at 707, 50 P.3d 602 (citing Ellis, 142 Wash.2d at 458, 13 P.3d 1065). Summary judgment should only be granted "`if, from all the evidence, reasonable persons could reach but one conclusion.'" Id. (quoting Ellis, 142 Wash.2d at 458, 13 P.3d 1065).

Supervisors may be held liable as individuals for employment discrimination that violates Washington law. Brown v. Scott Paper Worldwide Co., 143 Wash.2d 349, 361-62, 20 P.3d 921 (2001). This includes retaliation claims.

Retaliation. Sexual harassment is prohibited by statute in this state. RCW 49.60.180(3); Glasgow v. Georgia-Pacific Corp., 103 Wash.2d 401, 405, 693 P.2d 708 (1985); Kahn v. Salerno, 90 Wash.App. 110, 117-18, 951 P.2d 321 (1998). RCW 49.60.210(1) provides:

It is an unfair practice for any employer... to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter.

The Clinic, therefore, unlawfully discriminated if it fired Ms. Renz because she complained about sexual harassment.

Shifting Burdens of Proof. The analytical framework is found in both federal and state case law. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) as later clarified in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), and finally adopted in Washington by Hill v. BCTI Income Fund-I, 144 Wash.2d 172, 185-87, 23 P.3d 440 (2001).

First, the employee must make out a prima facie case of retaliation. Milligan v. Thompson, 110 Wash.App. 628, 638, 42 P.3d 418 (2002). This establishes a rebuttable presumption of discrimination. The evidentiary burden then shifts to the employer to produce admissible evidence of a legitimate, nondiscriminatory, nonretaliatory reason for the discharge. Grimwood v. Univ. of Puget Sound, Inc., 110 Wash.2d 355, 363-64, 753 P.2d 517 (1988). Significantly, this is merely a burden of production, not a burden of persuasion. Id. at 364, 753 P.2d 517. If the employer fails to meet this burden, then the employee is entitled to an order establishing liability as a matter of law. Kastanis v. Educ. Employees Credit Union, 122 Wash.2d 483, 490, 859 P.2d 26, 865 P.2d 507 (1993) (citing Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)).

But if the employer produces some evidence of a nondiscriminatory reason for the discharge, the temporary presumption of retaliatory discharge established by the prima facie evidence is rebutted and removed. Hill, 144 Wash.2d at 182, 23 P.3d 440. Once the presumption is removed, the burden shifts back to the employee. The employee must then create a genuine issue of material fact by showing that the employer's stated reason for the adverse employment action was a pretext for what was a discriminatory or retaliatory purpose. Grimwood, 110 Wash.2d at 364, 753 P.2d 517. An employee can demonstrate that the reasons given by the employer are not worthy of belief with evidence that: (1) the reasons have no basis in fact, or (2) even if based in fact, the employer was not motivated by these reasons, or (3) the reasons are insufficient to motivate an adverse employment decision. Chen v. State, 86 Wash.App. 183, 190, 937 P.2d 612 (1997). If the employee fails to do this, the employer is entitled to dismissal as a matter of law. Kastanis, 122 Wash.2d at 491, 859 P.2d 26; Grimwood, 110 Wash.2d at 365...