WHITEHEAD v. DEPT. OF SOC., 34431-9-II (Wash.App. 7-17-2007)

No. 34431-9-II.The Court of Appeals of Washington, Division Two.
July 17, 2007.

Appeal from a judgment of the Superior Court for Kitsap County, No. 00-2-02956-1, Russell W. Hartman, J., entered January 20, 2006.

Affirmed
by unpublished opinion per Penoyar, J., concurred in by Armstrong and Hunt, JJ.

PENOYAR, J.

In September 2000, Eugene Whitehead filed a complaint against his employer, the Department of Social and Health Services (DSHS), alleging sexual harassment (hostile work environment) and National Labor Relations Act (NLRA) violations. The trial court granted summary judgment in DSHS’s favor and Whitehead appeals, making two primary arguments: (1) he contends that the trial court either ignored or made factual determinations about issues of material fact when it ruled on his hostile work environment claim, and (2) he claims that the trial court erred in disregarding his retaliation claim. As DSHS points out, Whitehead fails to develop his hostile work environment claim through citations to the record.

Further, even if we comb through the record in an attempt to make Whitehead’s argument for him, there are insufficient facts to support a prima facie hostile work environment claim. Additionally, Whitehead’s retaliation claim was not properly preserved for appeal. We affirm.

FACTS
Eugene Whitehead and Boots L. Whitehead (hereinafter “Whitehead”) appeal the entry of summary judgment in DSHS’s favor. Whitehead’s claims arise out of his employment by DSHS at the Frances Haddon Morgan Center (the Center), a residential facility for autistic people. In his complaint, filed September 28, 2000, Whitehead asserted two claims: (1) that he was the victim of sexual harassment and that this harassment constituted a hostile work environment for which his employer, DSHS, was liable[1] ; and (2) that his employer violated the NLRA by retaliating against him for participating in union activities. DSHS moved for summary judgment on the grounds that the statute of limitations had run on many of the incidents alleged by Whitehead, that even if the claims were not barred, Whitehead failed to establish a prima facie case of harassment, and finally, that the NLRA does not apply to DSHS as an employer. The trial court granted summary judgment in DSHS’s favor.

1. Sexual Harassment Claims

Whitehead claims he was sexually harassed by three women at the Center: Carol Kirk, Alleen Witte, and Sherri Wilson. DSHS has a sexual harassment policy that informs employees that sexual harassment is illegal and will not be tolerated. If an employee is sexually harassed, he is supposed to do three things: (1) directly inform the harasser that the conduct is unwelcome; (2) report the behavior to management; and (3) contact his personnel officer or the Office for Equal Opportunity. Whitehead received training on this policy, but he did not follow it.

A. Carol Kirk

Kirk became the superintendent at the Center in 1992. Soon afterwards, she stood behind Whitehead during a meeting (attended by other individuals) and massaged his shoulders. Whitehead’s account of how long this lasted varies. In his deposition, he stated that it lasted “at least 15 seconds.” Clerk’s Papers (CP) at 186. He later stated in his declaration (in response to the summary judgment motion) that the massage lasted “for what seemed like 15 minutes.” CP at 240-41. During other staff meetings shortly after Kirk became superintendent, she would touch Whitehead’s hand or arm when he was sitting near her. She did this to other staff members of both genders. The final incident occurred in 2000. In this incident, Kirk forcefully bumped Whitehead’s shoulder as she walked past him. During this bump, Kirk did not grab or touch him with her hands and did not rub her breasts or groin against him. There is no evidence that Whitehead informed Kirk her behavior was unwelcome or that he reported it to his personnel officer, anyone in management, or anyone at the Office for Equal Opportunity.

B. Alleen Witte

Witte began working at the Center in February 1996. Shortly after she began working there, she made comments to Whitehead about “how nice [he] looked and she wanted to go out to lunch with [him], ride in [his] car.” CP at 153. She also stated that he had a “cute butt” and that she thought all black men had “cute butts.” CP at 156. In particular, Witte frequently commented on the attractiveness of two other black males. She talked about these two men with other employees, including females. She also made general comments about sex. Whitehead never told her to stop or that her comments were unwelcome. Whitehead also never reported this harassment to anyone.

C. Sherri Wilson

Wilson began working at the Center in January 1996. Within a year after she began working at the center, Wilson asked Whitehead to go to a motel and rent a room during lunch. Whitehead did not tell her that this comment was offensive. Whitehead did not report the incident to management or anyone else, but somehow Kirk found out about the comment. Wilson also frequently talked about her sex life and pornographic television shows; Whitehead overheard these conversations. Whitehead did not inform Wilson that these comments were inappropriate or report the comments to anyone.

II. Retaliation Claim

Whitehead originally phrased his retaliation claim as a violation of his rights under the NLRA. Whitehead did not develop this claim in his memorandum in opposition to motion for summary judgment. The trial court granted summary judgment on the claim, stating that the state government is exempt from claims under the NLRA.

On appeal, Whitehead asserts an argument based on RCW 49.60.210 that DSHS retaliated because he was a “whistleblower.” Appellant’s Br. at 13. The sole fact alleged in support of this claim is that Kirk administratively transferred Whitehead to a home assignment in April 2001 (eight months after he filed his complaint).

ANALYSIS
We review summary judgment orders de novo, performing the same inquiry as the trial court. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004). Summary judgment is appropriate only if “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” CR 56(c). In determining whether summary judgment was proper, we view all facts and inferences in the light most favorable to the non-moving party. Hisle, 151 Wn.2d at 860-61. Once the moving party shows that there is no issue of material fact, the burden shifts to the non-moving party to establish “specific and material facts
to support each element of his or her prima facie case.” Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57, 66, 837 P.2d 618 (1992) (emphasis in original). The nonmoving party may not rely on speculation, argumentative assertions that unresolved factual issues remain, or having its affidavits considered at face value. Seven Gables Corp. v. MGM/UA Entm’t Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986).

1. Hostile Work Environment Claim

Whitehead claims that there are genuine issues of fact that preclude entry of summary judgment on this claim. DSHS accepts the version of the facts presented by Whitehead in his deposition and contends that the facts do not meet the elements of a hostile work environment claim. DSHS further contends that many of the incidents are barred by the statute of limitations because they occurred more than three years before the complaint was filed. Because there are no disputes about the material facts of the case, we address whether these facts, as a matter of law, present a prima facie claim for hostile work environment.

In order to maintain a hostile work environment claim, Whitehead must present evidence that the harassment (1) was unwelcome, (2) was because of sex, (3) affected the terms of employment, and (4) is imputed to the employer. Glasgow v. Georgia-Pac. Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708 (1985). Whitehead’s claim as to Kirk fails the second element, and his claim as to Witte and Wilson fails the fourth element.

A. Carol Kirk

In order to determine whether the harassing behavior was because of sex, we ask whether the employee would have been singled out and caused to suffer the harassment if the employee had been of a different sex Glasgow, 103 Wn.2d at 406. “Sex” in this context refers to gender, not activity of a sexual nature generally. Doe v. Dep’t of Transp., 85 Wn. App. 143, 149, 931 P.2d 196, (1997). Comments made to a group of people and not specifically directed at the plaintiff are not sufficient for this element. Sangster v. Albertson’s, Inc., 99 Wn. App. 156, 162, 991 P.2d 674 (2000) (comment on another female employee’s figure to a group was not “because of sex” because it was not directed at the plaintiff).

Whitehead fails to show that Kirk’s behavior toward him was “because of sex.” With regard to Kirk rubbing Whitehead’s shoulders and touching his arm or hand during staff meetings, Whitehead admitted in his deposition that Kirk also touched female employees in similar ways. The final incident alleged by Whitehead is that Kirk bumped him as she entered a room. During this bump, Kirk did not grab or touch him with her hands and did not rub her breasts or groin against him. Whitehead’s description of the incident does not give rise to the inference that Kirk did this because he was a male.

B. Alleen Witte and Sherri Wilson

Harassment can be imputed to the employer where a manager personally participates in the harassment. Glasgow, 103 Wn.2d at 407. Liability will not be imputed to an employer where the offending manager does not hold a sufficiently high level position to be considered its alter ego Washington v. Boeing Co., 105 Wn. App. 1, 12, 19 P.3d 1041 (2000) Glasgow distinguishes between the class of persons so closely connected to the corporate management that their actions may be imputed to the employer and the class of persons comprised of co-workers and supervisors whose actions alone may not be imputed to the employer. Francom v. Costco Wholesale Corp., 98 Wn. App. 845, 853-54, 991 P.2d 1182 (2000) (citing Glasgow, 103 Wn.2d at 407).

An employer will not be held liable for a discriminatory environment created by a plaintiff’s co-worker or supervisor unless the plaintiff can show that (1) the employer authorized, knew or should have known of the harassment and (2) failed to take reasonably prompt and adequate corrective action. Washington, 105 Wn. App. at 11. The knowledge element can be met by proof that complaints were made to the employer through higher managerial or supervisory personnel or by proving such a pervasiveness of sexual harassment at the workplace as to create an inference of constructive knowledge of it. Glasgow, 103 Wn.2d at 407.

With respect to Witte’s and Wilson’s conduct, Whitehead has not shown that liability should be imputed to the employer. Whitehead received training on DSHS’s sexual harassment policy. This policy stated that sexual harassment should be reported immediately. Whitehead did not follow this policy. He never reported any of the women’s conduct. He also has not presented any evidence that sexual harassment was so pervasive at the Center as to warrant an inference of constructive knowledge on DSHS’s part. Thus, these claims fail because the employer neither knew nor should have known of them.

II. Retaliation Claim

Whitehead’s original complaint was based on the NLRA. Whitehead did not argue the claim’s validity during summary judgment. Although mentioned in his brief, Whitehead makes no argument with respect to the claim. Further, neither the State nor its political subdivisions is an “employer” for NLRA purposes. 29 U.S.C. §§ 152(2). Hence, this claim fails.

On appeal, Whitehead argues his retaliation claim under the Washington “Whistleblower Statute.” RCW 49.60.210. Because Whitehead raises this claim for the first time on appeal, we will not review it. RAP 2.5(a). Under RAP 2.5(a), a party may assert for the first time on appeal a lack of trial court jurisdiction, the failure to establish facts upon which relief can be granted or a manifest error affecting a constitutional right. This is not an issue of constitutional magnitude, nor does it come within either of the other exceptions listed in RAP 2.5(a).

Because the forgoing analysis is sufficient for us to affirm the trial court’s order, we do not address the other issues raised by the parties.

Affirmed.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

Armstrong, P.J. and Hunt, J., concur.