The Plaintiff was a Mexican-American Gulf War combat veteran who received partial disability due to a service related back injury and post-traumatic stress disorder. He also suffered from a speech impediment. He was hired by Quest in 1999 as an Equipment Installation Technician. After being reassigned in 2006, he received a new manager, who was also Mexican-American. Plaintiff alleged that his manager surrounded Plaintiff with co-workers who tormented him because of his military status, Mexican heritage, and disabilities. He alleged that his manager and co-worker referred to Mexican Americans as ?spics,? and his language as ?ghetto Hispanic.? Allegedly they mocked his speech impediment.
Plaintiff complained about the adverse behavior without specifically referring to his protected classifications. In response, his manager stated: ?someone is throwing rocks at the big dog and that big dog is going to get you and that big dog is me.? Thereafter Plaintiff complained again, alleging retaliation; that co-workers vandalized his work station, and the manager reviewed his work with greater scrutiny. The manager then reassigned Plaintiff without changing his job classification. At the new reassignment Plaintiff?s van was downgraded; he was required to return his cell phone and computer; was not selected for favorable jobs; and barred from earning overtime. Plaintiff also alleged various acts of sabotage.
Plaintiff filed suit alleging a violation of the Washington Law Against Discrimination (?WLAD?) on the grounds of disparate treatment, harassment, and retaliation. The trial court granted summary judgment and Plaintiff appealed. The Court of Appeals reversed. The Court of Appeals ruled that Plaintiff presented ?direct evidence? and therefore applied the so-called ?direct evidence test.? ?Under the direct evidence test, a plaintiff can establish a prima facie case by providing direct evidence that (1) the defendant employer acted with a discriminatory motive and (2) the discriminatory motivation was a significant or substantial factor in an employment decision.? The Court ruled that ?[w]e generally consider an employer’s discriminatory remarks to be direct evidence of discrimination.? But see Scrivener v. Clark College, 176 Wn. App. 405, 309 P.3d 613 (2013) (distinguishing discriminatory comments as ?stray remarks?). The Court held that the manager directly expressed his dislike for an employee with a protected status, referred to Mexicans as ?spics? and allowed others to do so, and made fun of his speech. None of the comments relied upon by the Court involved the decision making process.
In reference to whether there existed an adverse employment action, the Court ruled that if Plaintiff?s new van, cellular phone, and preference for workplace stations were tied to his former position, then he could not prove an adverse action. But see Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (For particular treatment at work to amount to an adverse employment action, “a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination”). The Court found, however, that there existed a question of fact about whether those benefits were tied to his previous position. The Court also ruled that Plaintiff demonstrated that the ethnic and disability bullying was severe and pervasive that ?this hostile work environment amounted to an adverse employment action.?
The Court of Appeals then independently analyzed whether there existed a ?hostile work environment,? and focused on whether the hostility adversely affected the terms and conditions of employment. The fact that Plaintiff visited a psychiatry emergency room in response to “great stress at work” sufficiently demonstrated that the alleged harassment affected the terms and conditions of his employment. Because the harasser had the authority to affect Plaintiff?s hours, wages, and working conditions, he qualified as a manager under state law and there the harassment was imputed to the employer.
On the issue of retaliation, the Court found for the Defendant because the Plaintiff failed to complain specifically on the basis of a protected classification. ?A general complaint about an employer?s unfair conduct does not rise to the level of protected activity in a discrimination action under WLAD absent some reference to the plaintiff’s protected status.?
Alonso v. Quest Communications, — Wn. App. —, 315 P.3d 610 (Dec. 31, 2013) (Johanson, Hunt, Worswick)