No. 50492-4-IThe Court of Appeals of Washington, Division One.
Filed: August 18, 2003 UNPUBLISHED OPINION
Appeal from Superior Court of King County Docket No: 00-2-32349-2 Judgment or order under review Date filed: 04/19/2002
Counsel for Petitioner(s), Carol Hepburn, Campiche Hepburn McCarty Bianco, 300 Elliott Ave W Ste 550, Seattle, WA 98119-4145.
Philip Albert Talmadge, Talmadge Stockmeyer, 18010 Southcenter Pkwy, Tukwila, WA 98188-4630.
Candiss Anne Watson, Talmadge Stockmeyer PLLC, 18010 Southcenter Pkwy, Tukwila, WA 98188-4630.
Counsel for Respondent(s), Mark Gibson Stockdale, King Co Admin Bldg, 500 4th Ave Ste 900, Seattle, WA 98104-2316.
Diane Hess Taylor, King Co Admin Bldg, 500 4th Ave Ste 900, Seattle, WA 98104-2316.
BECKER, C.J.
Appellant Rose Antonius is employed by King County as a corrections officer. Her gender-discrimination claim of a hostile work environment is primarily based on allegations of demeaning acts that occurred more than three years before she filed suit. The trial court, applying the statute of limitations, granted partial summary judgment excluding such conduct from the scope of the suit. We reverse. The evidence that the hostile work environment continued into the limitations period is sufficient to support a finding of a continuing violation.
We summarize the evidence in the light most favorable to Antonius, the non-moving party. She began work as a corrections officer in 1985 at the Seattle jail. During this time, she directly supervised male inmates. She was subjected to indecent exposure by inmates and sexually derogatory comments by inmates, co-workers, and supervisors. She encountered pornography both in inmate areas and in areas used by officers.
In February 1996, she was assigned to the all female Alder Street detention facility. During this 10-month assignment, she was not subjected to any discriminatory behavior.
In December 1996, she was promoted to sergeant and reassigned back to the Seattle jail. Since March 1997, she has worked at the Regional Justice Center Correctional Facility.
In 1997, several female corrections officers brought a class action gender-discrimination suit against King County. In March 1999, Antonius was deposed in connection with the class action, but she was not part of the class. Later that year, King County settled the class action.
In December 2000, Antonius filed an individual suit against King County for maintaining a hostile work environment. She alleged claims similar to those made in the class action suit. Discovery established that the majority of the incidents that Antonius complained about had occurred before December 1997. King County moved for summary judgment, asserting the three-year statute of limitations.
The court granted partial summary judgment to King County to the extent that Antonius’ claim was based on conduct occurring before December, 1997.
The evidence of a hostile work environment after 1997, standing alone, was too thin to make it worthwhile to go to trial. Because the ruling effectively terminated the case, this court granted Antonius’ motion for discretionary review of the order granting partial summary judgment.
When reviewing a grant of summary judgment, we engage in the same inquiry as the trial court. Pulcino v. Federal Express Corp., 141 Wn.2d 629, 639, 9 P.3d 787 (2000). Summary judgment is appropriate only when, after reviewing all facts and reasonable inferences in the light most favorable to the nonmoving party and all questions of law de novo, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). Antonius asserts a continuing violation. Traditionally, the equitable doctrine of continuing violation has been applied to allow a plaintiff to allege otherwise time-barred discriminatory acts, and recover damages based on those acts, when there is ongoing discriminatory conduct. Washington v.
The Boeing Company, 105 Wn. App. 1, 8, 19 P.3d 1041 (2000). Some courts have held that a significant lapse of time between separate episodes of discriminatory conduct precludes a finding of a continuing violation because the untimely acts are not sufficiently linked to the timely acts to show a pattern. See, e.g., Annis v. County of Westchester, 136 F.3d 239, 246 (2d Cir. 1998) (six-year gap); Selan v. Kiley, 969 F.2d 560, 565-67 (7th Cir. 1992) (two-year gap); Blesedell v. Mobil Oil Co., 708 F. Supp. 1408, 1417-18 (S.D.N.Y. 1989) (four-year gap). The County thus argues that Antonius is precluded from pursuing her claim because during the 10-month period that she worked at the all-female Alder Street facility, her work environment was not hostile. We disagree. That interruption, for only 10 months out of the 15 years that Antonius has worked as a corrections officer, was not so long that we can say as a matter of law there was no continuing violation.
Much of the legal analysis devoted to this case up to now has attempted to classify it according to two types of continuing violation recognized by the federal courts: serial and systemic. See Provencher v. CVS Pharmacy, 145 F.3d 5, 14 (1st Cir. 1998). The previous federal case law elaborating the distinction between serial and systemic continuing violations is summarized in Cherosky v. Henderson, 330 F.3d 1243, 1246
(9th Cir. 2003). This court has, in two prior cases, taken the federal courts’ distinction between serial and systemic violations into consideration when analyzing a claim of a continuing violation. See Washington v. Boeing, 105 Wn. App. at 8-9 (held, plaintiff failed to state specific facts supporting the existence of a continuous hostile work-environment, and did not discuss relevant factors in her attempt to establish either a serial or systemic continuing violation); Milligan v. Thompson, 90 Wn. App. 586, 595, 953 P.2d 112 (1998) (held, plaintiff who alleged serial violation cannot reach back and recover for time-barred demotion because it was the type of permanent decision that should have alerted him to his rights).
After the parties in this case submitted their briefs, the United States Supreme Court adopted a somewhat different analysis of the effect of the statute of limitations upon a discrimination claim. National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002). The Court first held that easily-identifiable discrete discriminatory acts such as termination, failure to promote, denial of transfer or refusal to hire are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Morgan, 536 U.S. at 114. The Court then explained that a hostile work environment claim is different in kind from a claim of an unlawful employment practice based on discrete acts. A hostile work environment `occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own.’ Morgan, 536 U.S. at 115.
The court held: `Provided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.’ Morgan, 536 U.S. at 117.
Because our discrimination laws substantially parallel Title VII of the Civil Rights Act, 42 U.S.C. § 2000(e) et seq., we may look to federal law for nonbinding guidance. Xieng v. Peoples Nat’l Bank, 120 Wn.2d 512, 518, 844 P.2d 389 (1993). Morgan is consistent with our previous cases, Washington and Milligan, and is now the law controlling the federal circuits, to whom we have previously looked for guidance on this question. Finding Morgan to be persuasive as well as directly on point, we adopt its analysis to resolve the issue in the present case. When a motion for summary judgment seeks to establish a statute of limitations defense as a matter of law, the motion should be denied if there is evidence sufficient to prove that the acts complained of are part of a single actionable hostile work environment and to prove that one or more acts occurred within the statutory time period. See Morgan, 536 U.S. at 120. Antonius alleges that King County fostered and maintained a hostile work environment by failing to discipline humiliating and sexually offensive conduct both by inmates and her male co-workers. She claims the County tolerated indecent exposure by inmates; sexually derogatory comments not only by inmates but also by co-workers and superiors; and the visible presence of pornography not only in inmate areas but also in areas used by officers. It is undisputed that she can prove such conduct occurred during her experience as a direct supervisor of inmates up to February 1996. The question under Morgan is whether Antonius personally encountered similar conduct of a sexually demeaning nature after December 1997, by which time she was working as a sergeant at the Regional Correctional facility in Kent. King County admits that it continued to provide inmates with pornographic magazines until February 2000. The County suggests, however, that after 1997 Antonius did not personally encounter sexually explicit materials or offensive remarks to a degree that would relate her post-1997 experience to the hostile work environment she encountered in the earlier years. Antonius declares, however, that pornography was prevalent in the jail; that she saw it every day, at officer work stations as well as in cells; that rules against posting it on the walls were not enforced; and that this situation continued after 1997. Whether her claim of being offended by the pornography is reasonable is a classic question of fact that we will not decide as a matter of law. And Antonius stated in her deposition on March 31, 1999, that some co-workers still continued to use sexually derogatory language with her and other female officers:
`It happens probably less at [the Kent facility] maybe than in Seattle, but it still happens.’ This is sufficient evidence that acts contributing to the hostile work environment occurred within the filing period. Under Morgan, Antonius has raised a factual issue with respect to the statute of limitations, precluding summary judgment as to the pre-1997 period of her employment. King County argues that the partial summary judgment should nevertheless be affirmed on the basis that Antonius unreasonably delayed filing her discrimination claims. `This is a case of a plaintiff sitting on her complaints.’[1] Antonius responds that she was not aware until after the class action lawsuit was settled, and King County adopted a policy banning the sale of pornographic magazines to prisoners, that the hostile work environment alleged in that lawsuit was actionable. She declares that she experienced the same type of conduct as the class action plaintiffs and found it very upsetting, but thought that she had no recourse because nothing was done about it and women who complained were teased, or suffered other repercussions. `I have seen on many occasions over the years other women be ridiculed either to their face or behind their back by male officers, including those sergeants that later became captains, for complaints about treatment of women.’[2] .
We have held that a serial violation claim will fail if the employee knew or reasonably should have known that the earlier acts, which are untimely at the time of asserting the claim, were discriminatory when they were taking place. Washington v. Boeing, 105 Wn. App. at 8-9, citing Provencher, 145 F.3d at 14. It appears Morgan has eliminated this consideration in a claim alleging a hostile work environment. `It is precisely because the entire hostile work environment encompasses a single unlawful employment practice that we do not hold, as have some of the circuits, that the plaintiff may not base a suit on individual acts that occurred outside the statute of limitations unless it would have been unreasonable to expect the plaintiff to sue before the statute ran on such conduct.’ Morgan, 536 U.S. 117-118; see also 117 n. 11. In addition, other female employees had given the County reason to be aware of the same type of discriminatory acts that Antonius claims to have experienced. Yet the County allegedly did not bring the behavior to an end until well within the statutory period. Under these circumstances we cannot say as a matter of law that a reasonable person would have brought the claim earlier. Morgan recognizes that employers faced with unreasonable and prejudicial delay may raise various equitable defenses, such as laches. Morgan, 536 U.S. at 121-122. However, as stated above, the delay here was not manifestly unreasonable, and at least as the record now stands, King County has not shown or argued prejudice. Antonius requests attorney fees as the prevailing party under RCW 49.60.030(2) and RAP 18.1. Because she has not yet prevailed on her claims for hostile work environment, that request is premature and must be deferred to the trial court pending the outcome. See Reese v. Sears Roebuck Co., 107 Wn.2d 563, 580, 731 P.2d 497 (1987), overruled on other grounds by Phillips v. City of Seattle, 111 Wn.2d 903, 766 P.2d 1099
(1989).
Reversed and remanded.
GROSSE and COX, JJ., concur.