Plaintiffs were five State Department of Transportation? employees.????? ?A? supervisor repeatedly threatened to beat up one of the plaintiffs.? ?Another supervisor made racist and sexist comments.? ?Years later the plaintiffs filed suit for hostile work environment, wrongful termination, discrimination and retaliation.? ?The court dismissed one of the employee?s discrimination and retaliation claims to proceed to trial,? ?but? ?dismissed? ?all? ?other?? claims.???? ?The employees appealed.

Division Three affirmed. ?The court held that with respect to the majority of the plaintiffs there were no acts that could count towards a hostile work environment based on a protected category during the 3 year period prior to commencement of the action. ?It is not enough that offensive conduct did occur.?? The court also held that discrete acts of retaliation could not? count towards? a continuing violation ?with ?respect ?to ?a? hostile? work environment based on sex.

The court affirmed the dismissal of one plaintiff?s hostile work environment on the merits.? ?The plaintiff claimed that on one occasion a supervisor asked another crew member, while they were all eating hot dogs, whether the crew member wanted a bite of his wiener. ?Another supervisor frequently talked about sex. ?The Department sustained some complaints of sexual harassment against the second supervisor.?? ?He ?received ?only? minor ?discipline. The? supervisor? also ?told ?the? plaintiff? that ?she should be a ?cheerleader.?

The court concluded that plaintiff?s claims failed because the comments were not directed to her as a woman? ?and? ?the?? objectionable?? treatment? ?was directed to both males and females. ?The court held that ?the? ?cheerleader?? comment ?was ?not necessarily gender based. ?The court also held that none ?of ?the ?conduct ?could ?be ?attributed ?to ?the employer because there were no complaints specifically alleging sexual harassment that the Department failed to address.

Getting the law backwards, the court held that the because the employees could not show that the Department?s explanation for the actions that they alleged were retaliatory was pre-textual, the employees did not have a prima facie case. The court rejected the employees? claim of constructive discharge, despite the fact that Martini doesn?t not require a constructive discharge for a state law discrimination claim.

Crownover v. State Dep?t of Transp., — Wn. App–, 265 P.3d 971 (Nov. 29, 2011) (Div. 3) (Brown, Kulik, Siddoway)