                                                              ^ ir.      L Ut* W,


                                                             i.-J i 'J •-< -. L_




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



JIMMIE R. GOODE,                                        No. 73546-2-1


                     Appellant,                         DIVISION ONE


              v.



TUKWILA SCHOOL DISTRICT NO.                             UNPUBLISHED
406,
                                                        FILED: July 5. 2016
                     Respondent.




       Cox, J. — Jimmie Goode appeals the order granting summary judgment

of dismissal to the Tukwila School District. This action is for claimed violations of

the Washington Law Against Discrimination (WLAD) and for negligent and

intentional infliction of emotional distress. We affirm the trial court's grant of

summary judgment on the negligent and intentional infliction of emotional

distress claims. There are no genuine issues of material fact respecting these

claims. Because genuine disputes of material fact exist as to both of the WLAD

claims, we reverse the remainder of the order granting summary judgment. We

also deny both parties' requests for attorney fees on appeal.
No. 73546-2-1/2



       In 2007, Goode began working for the Tukwila School District as a

physical education teacher and coach at Foster High School. Ethelda Burke was

then the district superintendent.

       Goode, an African American, claims that Burke made numerous racially

derogatory remarks about African Americans to employees of the District.

Among these remarks, she allegedly referred to African American employees as

slaves. At a staff meeting, she told one employee to "'giddy up, black man.'"

She also asked a group of African American employees "'Why are all you blacks

sitting together?'" She also allegedly stated that hiring blacks made the District

look "too ghetto."

       Goode further claims that he was subjected to adverse employment

actions due to his race. Among the adverse actions that he claims is an alleged

failure to afford him a name clearing hearing, unfavorable work assignments, and

exclusion from decision making processes.

       He commenced this action against the District on April 10, 2014. In his

complaint, he claims violations of WLAD as well as negligent and intentional

infliction of emotional distress.1

       The District moved for summary judgment on all claims. The trial court

granted the motion in its entirety.

       Goode appeals.




       1 Clerk's Papers at 7.
No. 73546-2-1/3



               WASHINGTON LAW AGAINST DISCRIMINATION

       Goode argues that the trial court erred by dismissing his WLAD claims on

summary judgment. We agree.

       Summary judgment is proper "only when there is no genuine issue as to

any material fact and the moving party is entitled to judgment as a matter of

law."2 There is a genuine issue of material fact if reasonable minds could differ

on the facts controlling the litigation outcome.3 We consider "the evidence and

all reasonable inferences from [such] evidence in the light most favorable to the

nonmoving party."4

       We review de novo a trial court's grant of summary judgment.5

       In WLAD cases, granting summary judgment to an employer is seldom

appropriate due to the difficulty of proving a discriminatory motivation.6

                             Hostile Work Environment

       Goode argues that the trial court erred by dismissing his hostile work

environment claim. We agree.




      2 Scrivener v.Clark Coll.. 181 Wn.2d 439, 444, 334 P.3d 541 (2014);
accord CR 56(c).

       3 Knight v. Dep't of Labor & Indus., 181 Wn. App. 788, 795, 321 P.3d 1275
(quoting Ranger Ins. Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886
(2008)), review denied, 339 P.3d 635 (2014).

       4 Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015).

       5ld

       6 Scrivener, 181 Wn.2d at 445.
No. 73546-2-1/4



       Hostile work environment claims based on discrimination are brought

under RCW 49.607 Because RCW 49.60 substantially parallels Title VII, federal

discrimination cases are persuasive.8

       RCW 49.60.180(3) provides that an employer may not discriminate

against any person due to the person's race or color. To establish a hostile work

environment claim, a plaintiff must show that "'(1) the harassment was

unwelcome, (2) the harassment was because [plaintiff was a member of a

protected class], (3) the harassment affected the terms and conditions of

employment, and (4) the harassment is imputable to the employer.'"9

       Washington courts permit hostile work environment claims "based on acts

that individually may not be actionable but together constitute part of a unified

whole comprising a hostile work environment."10 This is because these claims

"'are different in kind from discrete acts' and '[t]heir very nature involves repeated

conduct.'"11 Thus, determining whether a work environment is hostile involves a

flexible analysis. For example, an employee may satisfy an element of a hostile

work environment claim if, considering the totality of the circumstances, the




      7 Estevez v. Faculty Club of Univ. of Wash., 129 Wn. App. 774, 790, 120
P.3d 579 (2005).

       8 Antonius v. King County, 153 Wn.2d 256, 266, 103 P.3d 729 (2004).

       9 Loeffelholz v. Univ. of Wash., 175 Wn.2d 264, 275, 285 P.3d 854 (2012)
(alteration in original) (quoting Antonius, 153 Wn.2d at 261).

       10 Antonius, 153 Wn.2d at 268.

       11 \± at 264 (alteration in original) (quoting Nat'l R.R. Passenger Corp. v.
Morgan, 536 U.S. 101, 115, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002)).
No. 73546-2-1/5


harassment is sufficiently pervasive so as to alter the employee's employment

conditions and create an abusive working environment.12

       Here, there is a threshold issue to address regarding the evidence that

was before the trial court. In its summary judgment order, the trial court

characterized as hearsay what it called "highly offensive remarks ... by

Superintendent Ethelda Burke about African Americans . . . ."13 Although the

court did not expressly strike this evidence as hearsay, it did not discuss in any

detail how these comments applied to the WLAD claims. Because these alleged

comments are not hearsay and must be evaluated in light of the hostile work

environment claim, we take this opportunity to explain why they are not hearsay.

       Hearsay is "a statement, other than one made by the declarant while

testifying at the trial or hearing, offered in evidence to prove the truth of the

matter asserted."14 "Where a statement is not offered for the truth of the contents

of the conversation, but only to show that it was made, the statement is not

hearsay."15

       Here, Burke's statements are not hearsay because they are not offered to

prove the truth of the matters asserted in them. Rather, they are offered to show

that offensive statements were made.




       12 Loeffelholz, 175 Wn.2d at 275.

       13 Clerk's Papers at 2074.

       14 ER 801(c).

       15 State v. Gonzalez-Hernandez, 122 Wn. App. 53, 57, 92 P.3d 789
(2004).
No. 73546-2-1/6


       For example, Burke's reference to other employees as slaves was not

offered to prove that the employees were bound to involuntary servitude.

Likewise, her question to a group of African American employees asking "'Why

are all you blacks sitting together'" was not offered to show that the employees

were actually sitting together. Accordingly, we consider this evidence in our

substantive analysis.

                         Imputing Harassment to Employer

       In this case, determining which harassing conduct can be imputed to the

District is an important initial step to focus the analysis of Goode's hostile work

environment claim. Goode argues that Burke's and the assistant principal's

harassing conduct may be imputed to the District. We need only determine

whether Burke's conduct may be imputed to the District for purposes of summary

judgment review.

       Harassment may be imputed to the employer in one of two ways. First,

the harassment may be imputed if a manager participated in the harassment.16
For summary judgment purposes, employees with authority to affect employee

hours, wages, and working conditions qualify as managers.17 "[A] manager is

something more than a supervisor."18



       16 Davis v. Fred's Appliance, Inc., 171 Wn. App. 348, 362, 287 P.3d 51
(2012).

      17 Alonso v. Qwest Commc'ns Co., LLC, 178 Wn. App. 734, 752, 315 P.3d
610(2013).

       18 Henningsen v. Worldcom, Inc.. 102 Wn. App. 828, 838, 9 P.3d 948
(2000).
No. 73546-2-1/7



       But within some employers, there may be "little distinction" between

managers and supervisors.19 Thus, Washington courts must look to the

functions and responsibilities of the person at issue.20 A manager's rank in a

company's hierarchy must be high enough where the manager is the employer's

"alter ego" to automatically impute harassment to an employer.21

       Harassment may also be imputed to the employer if the harasser is the

employee's supervisor and the employer "'authorized, knew, or should have

known of the harassment and . . . failed to take reasonably prompt and adequate

corrective action.'"22 A supervisor can hire, fire, promote, or discipline an

employee.23 When disputed, a supervisor's status may often be resolved as a

matter of law before trial.24

       Here, only Burke's conduct may be automatically imputed to the District.

Burke's rank in the District hierarchy is high enough that she is the District's "alter




       19 Davis, 171 Wn. App. at 363.

      20 Francom v. Costco Wholesale Corp., 98 Wn. App. 845, 854, 991 P.2d
1182(2000).

       21 Davis, 171 Wn. App. at 363.

       22 jd at 362 (alteration in original) (quoting Glasgow v. Georgia-Pac.
Corp., 103 Wn.2d 401, 407, 693 P.2d 708 (1985)).

       23 Vance v. Ball State Univ.,      U.S.      , 133 S. Ct. 2434, 2443, 186 L.
Ed. 2d 565 (2013).

       24 Id. at 2450.
No. 73546-2-1/8



ego."25 As superintendent, Burke exercised her authority to affect Goode's

wages and working conditions. Thus, her conduct is imputed to the District.

                                      Harassment


        The parties do not appear to dispute the first element of Goode's hostile

work environment claim—that Goode received unwelcome harassment. But a

discussion on what constitutes harassment is necessary to narrow the focus of

this claim.


        Harassment is conduct an employee finds offensive.26 Discriminatory or

derogatory comments, mockery, or insults towards the employee generally

constitutes harassment.27 Asserting subjective offense to facially innocuous

comments, especially without acknowledging how the comment was

discriminatory, is not sufficient to prevent summary judgment dismissal.28

        "[I]f racial hostility pervades a workplace, a plaintiff may establish a

violation of Title VII, even if such hostility was not directly targeted at the

plaintiff."29




        25 Davis, 171 Wn. App. at 363.

        26 Glasgow, 103 Wn.2d at 406.

       27 See, e^, Loeffelholz. 175 Wn.2d at 275; Antonius. 153 Wn.2d at 259;
Alonso. 178 Wn. App. at 740; Davis. 171 Wn. App. at 362; Davis v. W. One Auto.
Grp.. 140 Wn. App. 449, 453, 457, 166 P.3d 807 (2007).

     28 See Crownover v. Dep't of Transp., 165 Wn. App. 131, 144-45,265
P.3d971 (2011).

        29 McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1117 (9th Cir. 2004).


                                               8
No. 73546-2-1/9



       Here, Goode relies on discriminatory comments Burke made to other

employees to establish harassment. For example, Burke referred to athletic

director J.D. Hill as "J.Darky," who found this name to be offensive. Goode

overheard Burke refer to Hill as "J.Dark."

      After Hill informed Burke that he was expecting another child, Burke stated

"'typical black man'" in response to him.

       Burke also allegedly referred to African American employees as slaves.

At a staff meeting, she told one employee to "'giddy up, black man'" and asked a

group of African American employees "'Why are all you blacks sitting together?'"

Goode was present at the staff meeting but did not hear the "giddy up" comment.

He was told that Burke made the comment.

       These comments constitute harassment. Specifically, Burke's statements

to the African American employees are not "facially innocuous" because they

were used to refer to the employees based on their skin color.30 Although Goode

did not understand the "J.Dark" name when he heard it, Goode stated that he

"would have been highly upset" had he known and was "sickened" after Hill

explained the name to him. Goode also stated that he was "disturbed" by the

slave comment and "offended" by the "'giddy up, black man'" comment. Goode's

reactions to these comments demonstrate that he found them to be offensive,

which establishes the harassment requirement for his claim.

       Goode also relies on numerous incidents throughout his employment to

establish harassment, such as the change of the physical education department


       30 Crownover, 165 Wn. App. at 145.
No. 73546-2-1/10


head and his exclusion from decision making processes. But case authority

demonstrates that these incidents do not constitute harassment for hostile work

environment purposes. These incidents may support a disparate treatment

claim, as discussed later in this opinion.

       The District argues that Goode cannot base his claim on conduct allegedly

directed at others, citing Crownover v. Department of Transportation31 to support

this argument. We disagree.

       In that case, Division Three of this court stated that "The law requires

some of the alleged acts directed at the particular plaintiff to occur within the

statute of limitations in order for the claim to be timely filed."32 But that case does

not support the untenable proposition that a hostile work environment claim fails

ifdiscriminatory comments are not made directly to a plaintiff who is also a

member of the protected class. Rather, the court merely explained why one of

the plaintiffs failed to identify discriminatory conduct within the statute of

limitations.33

       The very nature of a hostile work environment claim is that the working

environment is poisoned by discriminatory conduct. It makes no sense to this

court that proof of such a claim requires that the discriminatory conduct must be

directed at a specific individual. As previously stated, "if racial hostility pervades




       31 165 Wn. App. 131,265P.3d971 (2011).

       32 Id, at 143.

       33 ]d

                                              10
No. 73546-2-1/11



a workplace, a plaintiff may establish a violation of Title VII, even if such hostility

was not directly targeted at the plaintiff."34

         In sum, Goode established this element of his hostile work environment

claim.


                    Motivating Factor for the Harassing Conduct

         To establish this element of the hostile work environment claim, an

employee need only produce evidence supporting a reasonable inference that

his or her protected class status was the motivating factor for the harassing

conduct.35 The employee "must prove the conduct would not have occurred had

the employee been [outside of the protected class]."36 A jury could reasonably

conclude that subjecting an employee to "derogatory racial name-calling [i]s

motivated by racial or ethnic reasons."37 Additionally, derogatory comments

about the class to which the employee belongs is "sufficient evidence to raise a

question of fact on this element."38

         Here, Goode produced evidence supporting a reasonable inference that

race was the motivating factor for Burke's harassing conduct. Burke's comments

towards African American employees were based on the employees' race or

ethnicity, which constitutes derogatory racial name-calling. Although the


         34 McGinest, 360 F.3d at 1117.

         35 Alonso. 178 Wn. App. at 749.

         36 Crownover. 165 Wn. App. at 146.

         37 Alonso, 178 Wn. App. at 750.

         38 Campbell v. State, 129 Wn. App. 10,19,118 P.3d 888 (2005).

                                                 11
No. 73546-2-1/12



comments were not directed to Goode, some of the comments were made in his

presence. Further, the comments were derogatory towards African Americans,

the protected class to which Goode belongs. This is sufficient evidence to raise

a genuine issue of fact for trial on this element.39

                   Harassment Affecting Employment Conditions

       A hostile work environment occurs over time and is "'based on the

cumulative effect of individual acts.'"40 A single act of harassment is rarely

sufficient to establish a claim.41 More specifically, "Casual, isolated or trivial

manifestations of a discriminatory environment do not affect the terms or

conditions of employment to a sufficiently significant degree to violate the law."42

       An employee satisfies this element if, considering the totality of the

circumstances, the harassment is sufficiently pervasive so as to alter the

employee's employment conditions and create an abusive working

environment.43 Courts must look at the "frequency and severity of harassing

conduct, whether it was physically threatening or humiliating, or merely an

offensive utterance, and whether it unreasonably interfered with the employee's




       39 id, at 19-20.

       40 Loeffelholz, 175 Wn.2d at 273 (internal quotation marks omitted)
(quoting Antonius, 153 Wn.2d at 264).

       41 h± at 277.

       42 Glasgow, 103 Wn.2d at 406.

       43 Loeffelholz, 175 Wn.2d at 275.


                                              12
No. 73546-2-1/13



work performance."44 The conduct must be "objectively abusive" and subjectively

perceived as abusive or offensive by the employee.45

       Additionally, the conduct's level of severity or seriousness varies inversely

with the conduct's pervasiveness or frequency.46 For example, "'mere utterance

of an . .. epithet which engenders offensive feelings in an employee[]' does not

sufficiently affect the conditions of employment to implicate Title VII."47 Use of a

racial slur towards an employee "on three separate occasions does not, as a

matter of law, reach the level of severity sufficient to create an issue of fact as to

whether a hostile work environment existed."48 But "'[r]epeated derogatory or

humiliating statements . . . can constitute a hostile work environment.'"49
       Further, a work environment may be considered hostile even ifoffensive

comments are not made directly to the employee.50 That is the case here.




       44 Alonso. 178 Wn. App. at 751.

       45 Clarke v. Office of the Att'v Gen.. 133 Wn. App. 767, 787, 138 P.3d 144
(2006).

       46 McGinest. 360 F.3d at 1113.

       47 Harris v. Forklift Svs., Inc., 510 U.S. 17,21, 114 S. Ct. 367, 126 L. Ed.
2d 295 (1993) (citation omitted) (quoting Meritor Sav. Bank. FSB v. Vinson, 477
U.S. 57, 67, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986)).

       48 Egual Emp't Opportunity Comm'n v. Swissoort Fueling. Inc.. 916 F.
Supp. 2d 1005, 1022 (D. Ariz. 2013).

     49 McGinest, 360 F.3d at 1115 (alteration in original) (quoting Raw.
Henderson. 217 F.3d 1234, 1245 (9th Cir. 2000)).

          50 Eoual Emp't Opportunity Comm'n, 916 F. Supp. 2d at 1023.


                                              13
No. 73546-2-1/14



       Whether offensive comments affect employment conditions is a factual

question.51 Humiliation, emotional distress, absence from work, or "friction" with

other employees is sufficient to create an "inference" that such reactions resulted

from a hostile work environment.52

       The employee need not prove that the harassment lessened his or her

"'tangible productivity.'"53 "It suffices to prove that a reasonable person subjected

to the discriminatory conduct would find . . . that the harassment so altered

working conditions as to 'ma[k]e it more difficult to do the job.'"54

       Here, Burke's discriminatory conduct was sufficiently pervasive so as to

create an abusive working environment. The comments are "objectively abusive"

and are "subjectively perceived as abusive" by Goode.55

       Specifically, Goode stated that Burke's comments affected and impacted

his work environment and discouraged him. He also allegedly suffered emotional

distress, causing him to miss work. He experienced headaches, high blood

pressure, difficulty sleeping, anxiety, and depressed mood. Viewing this

evidence in the light most favorable to Goode and considering the totality of the




       51 Alonso. 178 Wn. App. at 751.

       52 See W. One Auto. Grp., 140 Wn. App. at 457-58; see also Glasgow,
103 Wn.2d at 403; Alonso, 178 Wn. App. at 752.

       53 Harris, 510 U.S. at 25 (Ginsburg, J. concurring) (quoting Davis v.
Monsanto Chem. Co.. 858 F.2d 345, 349 (6th Cir. 1988)).

       54 Id, (quoting Monsanto Chem. Co., 858 F.2d at 349).

       55 Clarke, 133 Wn. App. at 787.

                                              14
No. 73546-2-1/15



circumstances, a genuine dispute of material fact exists whether the harassment

was sufficiently pervasive so as to alter Goode's employment conditions.

       Accordingly, summary judgment was improper on his hostile work

environment claim. We must reverse.

                               Disparate Treatment

        Goode also argues that the trial court erred by dismissing his disparate

treatment claim. We agree.

       Under WLAD, disparate treatment occurs when employers treat certain

employees "less favorably" than others because of race, color, or other protected

status.56

       To survive summary judgment, the employee must show that a

reasonable jury could find that the employee's "protected trait was a substantial

factor motivating the employer's adverse actions."57 The plaintiff bears this

burden of production and may use either direct or circumstantial evidence.58
                                  Adverse Action


       Goode argues that he suffered a variety of adverse employment actions.

For the most part, we disagree.

       Adverse employment actions are "tangible change[s] in employment

status," such as reducing an employee's workload and pay.59 They involve



       56 Alonso. 178 Wn. App. at 743.

       57 Scrivener. 181 Wn.2d at 445.

       58 Id,

       59 Alonso. 178 Wn. App. at 746; Crownover, 165 Wn. App. at 148.
                                            15
No. 73546-2-1/16



changes in employment conditions that are more than inconveniences or

alterations of an employee's job responsibilities.60 A "'reassignment with

significantly different responsibilities'" or a demotion constitute adverse

employment actions.61 According to the Ninth Circuit Court of Appeals, an

undeserved and negative performance evaluation can constitute an adverse

employment decision.62 But there is no adverse employment action if the

evaluation is subject to modification by the employer.63

       Whether a particular action is materially adverse is case specific, using the

reasonable person standard.64 Determining whether a reasonable employee in

the employee's position would view an action as adverse is a question of fact for

a jury.65

        Here, Goode relies on numerous claimed adverse employment actions.

But these claims fall outside the statute of limitations and are not actionable.

        Discrimination claims must be brought within three years.66 The

limitations period starts when a cause of action accrues, which is when a party


        60
             Id.

        61 Id.; Crownover, 165 Wn. App. at 148 (quoting Burlington Indus.. Inc. v.
Ellerth, 524 U.S. 742, 761, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998)).

        62 Brooks v. City of San Mateo. 229 F.3d 917, 929-30 (9th Cir. 2000).

        63 Id, at 930.

      e^ Bovd v. Dep't of Soc. & Health Servs.. 187 Wn. App. 1,13, 349 P.3d
864(2015).

        65 Id, at 13-14.

        66 Antonius, 153 Wn.2d at 261-62.

                                              16
No. 73546-2-1/17



has the right to seek relief in court.67 Specifically, "[a] cause of 'action accrues

when the plaintiff knows or should know the relevant facts . . . .'"68

       Here, Goode filed his complaint on April 10, 2014. Thus, Goode's claims

arising from incidents prior to April 10, 2011 are time barred.

       Goode was the physical education department head from 2007 through

2008. Later, he was told that he would share these responsibilities by rotating

with Shauna Briggs as the department head. Briggs is not African American.

The responsibilities were not rotated back to Goode after Briggs obtained the

responsibilities. But Goode told Briggs and another employee that he did not

want the department head position after he requested the position. In any event,

this record does not establish that this event occurred after the April 10, 2011 bar

date. It cannot be a basis for a disparate treatment claim.

       In 2008, Goode was prohibited from attending football practice or the last

two games after swearing at a referee during a football game. Sometime before

2009, Goode chaperoned at a school prom and was assigned outside to monitor

the back of the venue. In 2009, the District denied Goode's request for his

daughter, a former Foster high school student, to use the school's pole vaulting

facilities. These events are all outside the April 10, 2011 bar date, as well.

       Goode also substituted for another teacher in 2010 and saw a picture of

President Obama in the class room. Someone had made the picture "black face"



       67 Crownover, 165 Wn. App. at 141.

       68 Id, (internal quotation marks omitted) (quoting Gilbert v. Sacred Heart
Med. Ctr., 127 Wn.2d 370, 381, 900 P.2d 552 (1995) (Durham, C.J., dissenting)).


                                              17
No. 73546-2-1/18



and drew monkey ears. Goode reported the picture to the District, but he claims

the District did not respond. Goode also claims that his compensation in 2010

did not accurately reflect his coaching experience. Again, these incidents fall

outside the bar date.


           Lastly, Goode claims that because he is African American, African

American students with disciplinary issues were placed in his class for him to

supervise. He claims that this interfered with his class instruction. But this

incident does not appear to fall within the April 10, 2011 bar date. It does not

create any genuine issue of material fact.

       The absence of a record to show any of these incidents fell within the

three-year statute of limitations is fatal. Accordingly, we decline to address them

further.


       The following incidents fall within the statute of limitations. But Goode fails

to show how these incidents are adverse employment actions.

       Goode claims that the former principal, Forrest Griek, rated Goode poorly

although Griek had not observed Goode's performance. In 2012, Goode

discussed this with Griek, who allegedly responded "okay my bad." The record is

unclear on the date of this rating. But there is nothing in this record to show that

it was final or not subject to modification.

           In or after December 2012, Daryl Wright went to Goode's home while he

was absent from work due to illness. Goode claims that the District wanted

Wright to check that Goode was actually ill and that this was not done with other




                                               18
No. 73546-2-1/19


teachers. How this constitutes an adverse employment action is left

unexplained.

       In September 2011, Goode complained about another teacher's

continuous use of the bathroom near Goode's office where the teacher did not

flush the toilet. Again, there is no showing how this is an adverse employment

action by the District.

       In 2013, Goode was not selected to participate on a committee formed to

acquire a new principal. He also claims that he was a member of a disciplinary

committee and was excluded from meetings. But Goode fails to explain how

these incidents changed his employment conditions and status as a physical

education teacher, which is required to show an adverse employment action.

       Goode further argues that he worked in an unsafe weight room and that

his safety concerns were ignored due to his race. Although Goode sustained an

injury while assisting a student in class, he fails to explain how the allegedly

unsafe weight room tangibly changed his employment conditions or status. For

example, the record does not show that the weight room was safe before Goode

taught there and later became unsafe when he started teaching. And Goode

fails to show how the weight room condition was more than an inconvenience or

altered his job responsibilities.

       Lastly, Goode claims he was denied a "name clearing hearing" after

Briggs alleged that Goode made an inappropriate comment to her. Goode

claims that the mentor teacher consultant told Briggs to keep her distance from

Goode, although he was Briggs's mentor. Goode claims that this negatively


                                             19
No. 73546-2-1/20



impacted his opportunity for professional development and impacted his work

environment. He also claims that this damaged his reputation. Goode also

argues that "the District promptly investigated and cleared a [Caucasian] teacher"

after he made a racially insensitive comment toward Goode.

       But the record shows that the District responded to Goode's concern

about this incident and offered to contact Briggs to inquire into the situation. The

District also retained an investigator in response to Goode's request for an

investigation into the matter. The record indicates that Goode declined to

participate in the investigation, and, accordingly, the District did not proceed with

an investigation.

       On this record, there is simply no genuine issue of material fact for trial.

To the extent this incident was problematic, the District has demonstrated that it

responded to his report of alleged disparate treatment. His failure to participate

in the proposed investigation bars pursuit of any claim based on this incident.

       This brings us to another incident involving Briggs. Viewing the evidence

in the light most favorable to Goode, we conclude it creates a genuine issue of

material fact for trial.

        Goode claims that Briggs was allowed to make department operation

decisions without his "input," resulting in "major changes" for him. He also stated

that this exclusion from the decision making process adversely impacted his

teaching and class structure and negatively impacted his work environment.

        Although the record does not clearly show that this significantly changed

Goode's responsibilities as a physical education teacher, we must view the


                                             20
No. 73546-2-1/21



evidence in the light most favorable to him. A reasonable person in his position

would consider this to be an adverse employment action because it adversely

impacted his teaching and class structure and negatively impacted his work

environment. Thus, Goode satisfied this element of his disparate treatment

claim.


          Protected Status as Substantial Factor Motivating Adverse Action

         Having concluded that there is a genuine issue of material fact regarding

the adverse employment action regarding Briggs, the question is whether the

motivation is racially based. Goode argues that discrimination motivated the

District's adverse employment action. We conclude there is a genuine issue of

material fact.

         An employee establishes a disparate treatment claim either by offering

direct evidence of an employer's discriminatory intent or by satisfying the

McDonnell Douglas Corp. v. Green69 burden-shifting test.70

         If an employee uses direct evidence, he or she must show that the

employer acted with a "discriminatory motive" and that "the discriminatory

motivation was a significant or substantial factor in an employment decision."71




         69 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).

         70 Alonso, 178 Wn. App. at 744.

         71 jd,

                                             21
No. 73546-2-1/22



         Direct evidence proves discriminatory animus without inference or

presumption.72 An employer's discriminatory remarks are direct evidence of

discrimination.73

         When an employer's statements do not directly concern the plaintiff, some

inference is necessary to establish discrimination against the plaintiff.74 But

"when evidence establishes the employer's animus toward the class to which the

plaintiff belongs, the inference to the fact of discrimination against the plaintiff is

sufficiently small," and the evidence is treated as direct evidence.75

         For example, in Dominguez-Currv v. Nevada Transportation Department,

a supervisor made demeaning comments to and about women in the work place,

including the plaintiff.76 The Ninth Circuit Court of Appeals determined that the

supervisor's comments were direct evidence of his "discriminatory animus,"

"overtly exhibited] his hostility to women in the workplace," and were "probative

of his discriminatory intent even if he directed them to other women in the

division."77




         72 Rashdan v. Geissberger, 764 F.3d 1179, 1183 (9th Cir. 2014).

         73 Alonso, 178 Wn. App. at 744.

         74 Coghlan v. Am. Seafoods Co. LLC, 413 F.3d 1090, 1095 n.6 (9th Cir.
2005).

         75 id,

         76 424 F.3d 1027, 1031 (9th Cir. 2005).

         77 id, at 1038.

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No. 73546-2-1/23


       Similarly, in Mullen v. Princess Anne Volunteer Fire Co.. Inc.. the plaintiff

used depositions from other employees stating that the employer used racial

slurs when describing African American employees.78 The employer argued that

the district court's exclusion of this evidence was proper because the statements

were not directed toward the plaintiff.79 The Fourth Circuit Court of Appeals

concluded that the jury was entitled to consider this evidence. It specifically

stated "that the value of these statements in revealing state of mind may still be

significant. . ." and that the employer's argument went more toward the weight of

the evidence rather than its admissibility.80

       But there must be a connection between the discriminatory motive and the

employment decision.81 And a reasonable factfinder could conclude that

discriminatory animus affected an employment decision "[w]here the person who

exhibited discriminatory animus influenced or participated in the decisionmaking

process."82 Thus, courts must determine whether a reasonable jury could




       78853F.2d 1130, 1132 (4th Cir. 1988).

       79 id, at 1134.

       80 id,

      81 See Alonso, 178 Wn. App. at 746; Dominguez-Currv, 424 F.3d at 1038-
40; McGinest, 360 F.3d at 1123; Laxton v. Gap Inc.. 333 F.3d 572, 584 (5th Cir.
2003); Russell v. McKinnev Hosp. Venture. 235 F.3d 219, 226-27 (5th Cir. 2000);
Hunt v. City of Markham, 219 F.3d 649, 652-53 (7th Cir. 2000); Llampallas v.
Mini-Circuits. Lab. Inc.. 163 F.3d 1236, 1246-49 (11th Cir. 1998); Shager v.
Upjohn Co., 913 F.2d 398, 405 (7th Cir. 1990); DeHomevv. Bank of Am. Nat'l
Trust & Sav. Ass'n, 879 F.2d 459, 468 (9th Cir. 1989).

       82 Dominguez-Currv, 424 F.3d at 1039-40.


                                                23
No. 73546-2-1/24



conclude that the employee exhibiting discriminatory animus was in a position to

influence the employment decision.83

         For example, in Ercegovich v. Goodyear Tire & Rubber Co., Edward

Ercegovich's employer, Goodyear, eliminated Ercegovich's position and denied

him the opportunity to transfer to available positions.84 Ercegovich sued based

on age discrimination, arguing that high ranking employees in his division,

including the vice president overseeing the division, made age-based

discriminatory statements.85 The district court concluded that the statements

were irrelevant because they were not made by the decision-maker.86

         The Sixth Circuit Court of Appeals disagreed, stating the vice president

"was in a position to shape the attitudes, policies, and decisions" of the decision

maker.87 The court then concluded that "a genuine issue of fact exists as to

whether [the vice president] was involved in the employment decisions adverse

to Ercegovich."88




         83 Ercegovich v. Goodyear Tire & Rubber Co.. 154 F.3d 344, 355 (6th Cir.
1998).

         84 154 F.3d 344, 348 (6th Cir. 1998).

         85 Id, at 354.

         86 id,

         87 JU at 355.

         88 Id.


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No. 73546-2-1/25


      The court also "assume[d] for purposes of summary judgment that [the

vice president] did in fact play a meaningful role in those decisions."89 Thus, the

court ultimately reversed the district court's granting of summary judgment on

that claim, concluding that the vice president's remarks "support[ed] the inference

that age-discriminatory animus entered in Goodyear's alleged decision to deny

Ercegovich the opportunity to transfer to available positions."90

       Here, Goode relies only on direct evidence to support his claim. He

specifically relies on Burke's discriminatory comments to and about African

American employees, such as her discriminatory comments to Hill and other

African American employees as described earlier.

       Because these comment are discriminatory, they are direct evidence of

discrimination towards the class to which Goode belongs.91 Burke's comments

were based on the employees' skin color, which is "probative of [her]

discriminatory intent" towards Goode, even if she directed these comments

toward other African American employees.92

       Additionally, a reasonable jury could conclude that Burke was in a position

to influence the adverse employment action as district superintendent.

Specifically, Goode discussed his exclusion from the decision-making process

with assistant principal Daryl Wright. Wright allegedly told Goode that "nothing


       89 id,

       90 Id, at 356, 358.

       91 Alonso. 178 Wn. App. at 744.

       92 Dominguez-Currv. 424 F.3d at 1038.


                                            25
No. 73546-2-1/26



w[ould] change" because Burke was "in charge." Thus, a genuine issue of

material fact exists as to whether Burke was involved in the adverse employment

action and whether Goode's race was a substantial factor motivating the adverse

action. Accordingly, summary judgment was improper on Goode's disparate

treatment claim regarding this aspect of his relations with Briggs.

             NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS

       Goode argues that the trial court erred in dismissing his negligent infliction

of emotional distress claim. We disagree.

       An employee may recover damages for emotional distress in an

employment context but only ifthe factual basis for the claim is distinct from the

factual basis for the discrimination claim.93 The employee must also establish

emotional distress by "'objective symptomatology,'" which means the distress is

"'susceptible to medical diagnosis and proved through medical evidence.'"94
       Here, the trial court dismissed Goode's negligent infliction of emotional

distress claim because he made "no showing that the factual basis for such a

claim [wa]s distinct from the factual basis for his discrimination claim."95
       This was proper because Goode explicitly attributes his distress "to the

different treatment" he received and the District's "discriminatory environment."



       93 Haubrv v. Snow, 106 Wn. App. 666, 678, 31 P.3d 1186 (2001).

       94 Kumar v. Gate Gourmet. Inc.. 180 Wn.2d 481, 505-06, 325 P.3d 193
(2014) (first quoting Strong v. Terrell, 147 Wn. App. 376, 387, 195 P.3d 977
(2008); then quoting Hegel v. McMahon, 136 Wn.2d 122, 135, 960 P.2d 424
(1998)).

       95 Clerk's Papers at 2077.

                                              26
No. 73546-2-1/27



Thus, "there is no separate compensable claim because the factual basis for the

emotional distress claim is the same as the [hostile work environment and

disparate treatment] claim[s]."96

       Goode argues that there are "sufficient questions of fact" whether he

satisfied the objective symptomology requirement for this claim. He argues that

his treating physician's declaration should have defeated the District's motion for

summary judgment. He is mistaken.

       Although Goode's doctor's declaration may satisfy the objective

symptomology requirement for this claim, Goode does not overcome the first

hurdle in establishing this claim.97 This claim must be distinct from the factual

basis for the discrimination claim.98 That is simply not the case here. The

dismissal of this claim was proper.

            INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

       Goode also asserted in his complaint a claim for intentional infliction of

emotional distress. The trial court dismissed this claim on summary judgment.

But Goode does not discuss this on appeal. We deem the claim abandoned.99




       96 Haubrv. 106 Wn. App. at 678.

       97 See id.

       98 id,

      99 See Podbielancik v. LPP Mortg. Ltd.. 191 Wn. App. 662, 668, 362 P.3d
1287(2015); RAP 10.3(a)(6).

                                             27
No. 73546-2-1/28


                                 ATTORNEY FEES

       Each party requests attorney fees. Goode requests attorney fees

pursuant to the WLAD under RCW 49.60.030(2). The District requests fees

based on its claim that this appeal is frivolous.

       Goode's request for fees is premature because he has not, as yet,

prevailed under the provisions of the WLAD statute. Thus, we deny without

prejudice this request.

       The District bases its request for fees on RAP 18.9(a), which provides for

attorney fees if a party "files a frivolous appeal." "An appeal is frivolous if there

are no debatable issues [upon] which reasonable minds might differ and it is so

totally devoid of merit that there is no reasonable possibility of reversal."100
       Because there is no basis to conclude this appeal is frivolous, an award to

the District is not merited.

       We affirm in part and reverse in part. We affirm the trial court's grant of

summary judgment on the negligent and intentional infliction of emotional

distress claims. We reverse the trial court's grant of summary judgment on both

of the WLAD claims. We deny both parties' requests for attorney fees on appeal.
                                                             fa* X si        .



WE CONCUR:




                                                               cKc^

       100 Ha v. Signal Elec, Inc., 182 Wn. App. 436, 456, 332 P.3d 991 (2014),
review denied, 182 Wn.2d 1006 (2015).
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