                                                                                                   i"LED
                                                                                                    I
                                                                                           o
                                                                                                 T OF APPEALS
                                                                                                D1V1S101111 Ii
                                                                                         2010 DEC 31      AM 9: 14

                                                                                         STA71 E OF WASI-M GTM
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      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                                   DIVISION II

JOSEPH ALONSO               and MARIE ALONSO,                                   No. 43703 -1 - II
husband and wife and the marital community
thereof,


                                   Appellants,


         V.



QWEST COMMUNICATIONS                     COMPANY,                           PUBLISHED OPINION
LLC,     a    Washington     corporation,        and    BEN
MARTINEZ, supervisor,




         JOHANSON, J. —        Joseph Alonso sued his employer, Qwest Communications Company

LLC; and his supervisor, Ben Martinez, for discrimination; the superior court granted Qwest


summary judgment dismissal         of   Alonso'        s complaint.)   Alonso appeals, arguing that he provided

sufficient evidence    to   establish prima       facie discrimination    claims   for ( 1) disparate treatment, ( 2)


a   hostile   work environment, and (       3)    unlawful retaliation.     Viewing the record in a light most

favorable to the nonmoving party, we hold that Alonso established prima facie disparate


1
    Joseph and Marie Alonso, a marital community, are the plaintiffs;. we use " Alonso" to identify
the plaintiff. Though Qwest and Martinez are defendants, we use " Qwest" when referring to the
defendants and " Martinez" when referring to Martinez individually.
No. 43703 -1 - II



treatment and hostile work environment claims; thus, we reverse the superior court' s summary

judgment dismissal          on     those    matters.    Holding that Alonso failed to establish a prima facie

retaliation case, however, we affirm the superior court' s summary judgment dismissal of that

claim.




                                                               FACTS


                                                        I. WORKPLACE


           Alonso is a Mexican- American Gulf War combat veteran who receives partial disability

due to    a service -related       back    injury   and post     traumatic   stress   disorder ( PTSD).   Since childhood,


he has suffered from a speech impediment that required doctors to surgically modify the roof of

his mouth.


           In 1999, Qwest hired Alonso as a Central Office Equipment Installation Technician to

                                                             2
install   and maintain network             infrastructure.        In 2006, Alonso was reassigned from the central

                                                                                                                            3
office    to   a position   that   services customer       location sites,      which    became known     as an "   AQCB"


position.         Several months before Alonso was reassigned to AQCB duty, Qwest provided him
                                                                                                4
with a new work van, a cellular              telephone,   office space, and a computer.




           When       Alonso       was      reassigned    to       AQCB       duty,    two   people   performed      AQCB


responsibilities.       Alonso enjoyed AQCB work, and in 2007, according to Alonso, he and his

then -coworker, William Kling, achieved the distinction of "being first in quality and productivity


2
    We    refer   to Alonso'   s employer as         Qwest because that is the          named   party involved here.   The

record, however, refers to Alonso' s employer as US West, Qwest, and Century Link,
3
    The meaning behind the acronym " AQCB" is unclear from the record.

4 It is unclear when, exactly, Alonso received his cellular telephone, office space, and computer.


                                                                    2
No. 43703 -1 - II



over a      14   state region."      Suppl. Clerk'      s   Papers ( CP)   at    232.    The next year, however, Martinez


became Alonso' s manager. Martinez, also a Mexican -American and military veteran, practiced a

management style with which Alonso did not agree; and by April 2010, their work relationship

had soured.


            Alonso alleges that Martinez surrounded himself with other Qwest employees, Jose


Zuniga, Brad Tuttle, and Dave Thomas, who collectively treated Alonso poorly and tormented

him because            of   his military   status,   Mexican heritage,             and   disabilities,     including his speech

impediment. To Alonso' s disgust, Martinez and other employees also used offensive workplace


language.         According       to Alonso, Martinez          and   Zuniga      referred      to Mexicans   as "   Spies."     CP at


115.        Coworkers         also   described Alonso'        s   speech    as   like    a "   ghetto   Hispanic,"    and Zuniga


contrasted        himself to Alonso because he "               spoke     correct   English,"      unlike   Alonso.     CP at 144,


145.       The harassment was so open that Alonso' s colleagues noticed that some employees,


including Martinez, mocked Alonso' s speech.

            Alonso stated that Martinez knew that Alonso suffered from combat -
                                                                              related disabilities,


including        PTSD,      and   held this   against   him.      According to Alonso, Martinez " hated the fact that

 Alonso]         was   receiving     disability   pay," commenting, " I will tell you what I hate, people that


served      in the first Gulf War for five days              and claim a     disability "; and      Martinez    added, "      I served


and    I   got   crap."     Suppl. CP at 233.


            In April 2010, Alonso phoned Qwest' s Corporate Ethics and Compliance Advice Line

 hotline)        and reported that Martinez was corrupt, mistreated Alonso by subjecting him to




                                                                     3
No. 43703 -1 - II



heightened scrutiny, and allowed employees to engage in inappropriate workplace behavior.5
Alonso did not report to the hotline any conduct that related to or targeted him based on his

protected statuses.




             At the first safety meeting following Alonso' s initial hotline call, on May 20, Martinez

told the      entire    staff,   including     Alonso, that "     someone     had   called   in"    and   that " someone is



throwing rocks at the big dog and that big dog is going to get you and that big dog is me."

Suppl. CP       at   234. Alonso felt that Martinez            made a "    mockery"   of   his hotline    complaint.      CP at


77.    Employee Margaret Buechel                stated, "   It was obvious from the way that Ben [ Martinez] was

acting towards Joseph [ Alonso] that he knew that Joseph had                        complained."        CP   at   145.   At that


same     safety meeting, Martinez            assigned   the    crew new schedules.         To Alonso' s dissatisfaction,


Martinez changed Alonso' s hours so that, rather than starting work at 5: 00 a.m., he would begin

at   6: 00   a. m.   Following the meeting, Martinez e- mailed the staff that they could no longer report

to work early to earn overtime; but, according to Alonso, Martinez continued to allow Zuniga to

begin working at 5: 00 a.m., one hour before his shift began.

             Alonso followed his April hotline call with several other hotline calls- in May 2010.

During       these     May   calls,   Alonso    claimed     that ( 1)   Martinez retaliated against him for reporting

Martinez in April; (2) Martinez had told other employees that Alonso had complained about their


behavior to the hotline           and,                      coworkers vandalized      Alonso'      s work station; ( 3)    since
                                         consequently,


Alonso initially complained to the hotline, Martinez had reviewed his work with even greater




 5
     Alonso     also   states    that he   claimed   that he    reported " prejudice"      against him, but the partially
redacted hotline reports do not show a report of prejudice in the hotline calls. CP at 108.


                                                                   9
No. 43703 -1 - II



scrutiny.     For example, on May 11, 2010, Alonso was in the middle of working a Fort Lewis job

when Martinez telephoned and asked Alonso to leave for a project at Good Samaritan Hospital

and "   do   whatever      it takes" to finish it. Suppl. CP           at   235.     Alonso finished the hospital job; but


when Alonso told Martinez that he had worked 11 hours, Martinez told him to manipulate his

time card to       read   that he had only        worked     8 hours.       Martinez also threatened to change Alonso


from a 4 -day, 10 -hour work week, to a 5 -day, 8 -hour work week.

         Eventually, Martinez reassigned Alonso from AQCB back to the central office.

According to Alonso, Martinez also forced him to trade his " nice" work van for " an old junky

van"    and required       Alonso to   return     his   cellular   telephone       and computer.         Suppl. CP at 234, 235.


Alonso stated that Martinez did not select him for " lucrative ` per diem' jobs" 7 and barred him

from earning        overtime.       Suppl. CP        at   235.     As Buechel        characterized        it, " After Ben started


looking      at   Joseph [ Alonso,]        negative       things began to happen to Joseph."                   CP   at   145.   For


example, one day, when Alonso was away from his desk, either Tuttle or Zuniga spread hand

sanitizing liquid         over   Alonso'   s   desk telephone, to the        point   that   it   was   dripping.   At other times,


Zuniga glued a computer mouse to the mouse pad at Alonso' s work station; and someone applied


a greasy substance to Alonso' s mouse. Alonso also once found a wet puddle in his work chair.




6 Other employees, including Martinez, Laurie Gonce, Jonathan King, Tuttle, Zuniga, Matthew
Dillon, and Shawn Breer, all continued to use their Qwest- issued cellular telephones.

7 Alonso characterized " per diem jobs" as out -of town projects that have potential to yield higher
                                                   -
earnings.         According      to Alonso, Thomas, Tuttle,             and others " worked several weeks and even

several months per year"             in those jobs.          Suppl. CP       at   238.   Martinez denied Alonso' s claim,
saying that he had never denied Alonso a per diem job.


                                                                   5
No. 43703 -1 - II


                                                    II. PROCEDURE


         Alonso      filed    a    complaint      against   Qwest        under   the   Washington    Law   Against

                                   8
Discrimination ( WLAD),                alleging    disparate        treatment,   harassment,   discrimination,   and




retaliation   based    on    his   combat   veteran,    disabled person, and Mexican -
                                                                                     American statuses.


Qwest    moved      for summary judgment.            The superior court ruled that Qwest was entitled to


judgment as a matter of law, granted summary judgment to Qwest, and dismissed Alonso' s

WLAD complaint. Alonso appeals.


                                                      ANALYSIS


         We review summary judgment orders de novo, viewing the facts in the light most

favorable to the nonmoving party.            Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d

16, 26, 109 P. 3d 805 ( 2005).         Trial courts properly grant summary judgment where the pleadings

and affidavits show no genuine issue of material fact and the moving party is entitled to

judgment as a matter of law. CR 56( c).


                                         I. DISPARATE TREATMENT CLAIM


         Alonso first argues that, because he established a prima facie disparate treatment claim

under both the direct evidence and McDonnell Douglas tests, the superior court erred when it

improperly determined that Qwest was entitled to summary judgment as a matter of law.

Viewing the evidence in a light most favorable to Alonso, we hold that Alonso produced




    Ch. 49. 60 RCW.

9
    McDonnell Douglas Corp. v. Green, 411 U. S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 ( 1973).



                                                               el
    No. 43703 -1 - II


    sufficient evidence to establish a prima facie disparate treatment claim under the direct evidence


    test. 10 Thus, the superior court improperly granted Qwest summary judgment on this claim.
                                                             A. Rules of Law


             Disparate treatment occurs when an employer treats some people less favorably than

    others because of race, color, religion, sex, or other protected status. Hegwine v. Longview Fibre

    Co.,    162 Wn.2d 340, 354               n. 7,   172 P. 3d 688 ( 2007).        To establish a prima facie. disparate


    treatment discrimination case, a plaintiff must show that his employer simply treats some people

    less   favorably    than   others   because       of   their   protected status.   Johnson   v.   Dep' t   of Soc. &   Health


    Servs., 80 Wn.       App.    212, 226, 907 P. 2d 1223 ( 1996).                A plaintiff may establish a prima facie

    case by either offering direct evidence of an employer' s discriminatory intent, or by satisfying

    the McDonnell Douglas burden -shifting test that gives rise to an inference of discrimination.

    Kastanis v. Educ. Emps.' Credit Union, 122 Wn.2d 483, 491, 859 P. 2d 26, 865 P. 2d 507 ( 1993).

             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

i   discriminatory motivation was a significant or substantial factor in an employment decision.

    Kastanis, 122 Wn.2d          at   491.     We generally consider an employer' s discriminatory remarks to be

    direct   evidence of   discrimination. See Johnson                 v.   Express Rent & Own, Inc.,      113 Wn. App. 858,




     to
          Because we rely on direct evidence, we need not perform a McDonnell Douglas burden -
    shifting analysis.         See Swierkiewicz         v.           A., 534 U.S. 506, 511, 122 S. Ct. 992, 152 L.
                                                             Sorema N.
    Ed. 2d 1 ( 2002).



                                                                       7
No. 43703 -1 - II



862 -63,        56    P. 3d        567 ( 2002) (        reversing summary judgment based on supervisor' s ageist

comments         that     plaintiff       did   not   fit company'   s   image     of " youthful,
                                                                                       a               fit, `GQ'    looking mold ")."

                                                         B. Discriminatory motive

           To        satisfy        the    direct      evidence    test,     Alonso       must    show       that   Qwest        acted   with


discriminatory motive in taking an adverse employment action against him based on his

protected status as either a veteran, Mexican -
                                              American, or disabled person. 12 See Kastanis, 122

Wn.2d      at   491.       Alonso recounts as direct evidence of discriminatory motive, Martinez' s stated

hatred     of   disabled           combat veterans, "          I will tell you what I hate, people that served in the first


Gulf War for five days                     and    claim    a   disability."       Suppl. CP      at   233.   This comment does not


expressly reference Alonso, but the record demonstrates that Alonso was the only disabled Gulf

War combat veteran at Qwest and that he claimed a 40 percent combat disability stemming from

his   service.        Martinez knew of Alonso' s combat veteran status and, according to Alonso, even

 stated    that he hated the               fact that I    was   receiving        disability   pay."   Suppl. CP      at   233.   Here, as in




11 Because our discrimination laws substantially parallel Title VII of the Civil Rights Act of
1964,    we      may look to federal law for                     guidance.        Xieng   v.   Peoples Nat' l Bank of Wash., 120
Wn.2d 512, 518, 844 P. 2d 389 ( 1993).

12
     Veteran         status, national origin, and               disability    are all protected statuses.           RCW 49. 60. 180( 3).
 Disability" may include physical impairments, physiological disorders, or conditions that affect
one' s speech organs.                 RCW 49. 60. 040( 7)(         c)(   i). Our administrative regulations, too, provide that
a student with speech impediments has a disability, making the student eligible for special
education. See WAC 392 -172A- 01035.
         Qwest asserts that Alonso forfeited any argument that Martinez was motivated by anti -
Mexican bias because he did not present this argument at summary judgment. Alonso concedes
that trial counsel did not specifically brief Alonso' s protected status based on national origin; but
he contends that he submitted evidence of hostile and offensive comments directed at him. In his
response to Qwest' s summary judgment motion, for example, Alonso stated that " he was treated
differently          or   in   a   disparate     manner    due to his ...         Mexican      national origin."      Suppl. CP at 219.
Qwest' s argument, therefore, fails, because Alonso called the issue of national origin to the
superior court' s attention on summary judgment. See RAP 9. 12.

                                                                            N.
No. 43703 -1 - II



Johnson, a supervisor expressly stated discriminatory distaste for an employee with a protected

status.    While the Johnson supervisor made ageist comments to an older employee ( telling the

employee     he did   not   fit the company' s "      youthful,        fit, `GQ'   looking   mold "),   here Martinez openly

stated that he hated disabled Gulf War combat veterans and specifically that he hated that Alonso

was disabled and receiving disability pay.

           Similarly,    Alonso     produced evidence        that Martinez          referred   to Mexicans      as "   Spics" and


allowed others      to   also use   the term.    CP   at   115.   Employees, including Martinez, openly mocked

Alonso'    s speech      impediment    and accent,     described his         speech as   that   of a " ghetto   Hispanic,"   and




contrasted    themselves to Alonso because              they "    spoke correct       English,"    unlike   him.       CP at 144,


145.      This open mocking based on Alonso' s national origin and speech impediment constitutes

further direct      evidence      of   discriminative intent,            specifically relating to Alonso' s protected

disability    and   national    origin   statuses.         Viewing this evidence in a light most favorable to

Alonso, we hold that the evidence sufficiently proved that Martinez acted with a discriminatory

motive toward Alonso, a disabled, military veteran of the Gulf War and a man of Mexican-

American heritage.


                         C. Significant or Substantial Factor in Employment Decision


           We must next determine whether the discriminatory motive was a significant or

substantial    factor in    an employment         decision relating to Alonso.                 See Kastanis, 122 Wn.2d at


491.      An adverse employment action involves a change in employment conditions that is more

than an inconvenience or alteration of one' s job responsibilities, such as reducing an employee' s

workload and        pay. Campbell       v.   State, 129 Wn.       App.     10, 22, 118 P. 3d 888 ( 2005), review denied,


 157 Wn.2d 1002 ( 2006).             A demotion or adverse transfer, or a hostile work environment, may




                                                                  GI
No. 43 703 - 1 - II



also amount to an adverse employment action. Kirby v. City of Tacoma, 124 Wn. App. 454, 465,

98 P. 3d 827 ( 2004), review denied, 154 Wn.2d 1007 ( 2005).


                                                      1.   Adverse transfer


          Here, Martinez removed Alonso from AQCB duty, and transferred him to the central

office.   While both positions did the same work for the same pay and fell within the same union

contract    classification,     Martinez       stated      that the AQCB      position   came     with "   some benefits,"


including a newer van, cellular telephone, and preference in employer -supplied workstations,

computers, and        desk telephones.     CP at 47. In O' Neal v. City of Chicago, 392 F. 3d 909, 912 ( 7th

Cir. 2004), the Seventh Circuit held that the loss of a plaintiff' s cellular telephone, pager,


vehicle, and parking space did not amount to an adverse employment action when those benefits

were associated with          the   position    from       which   the plaintiff was transferred.     Thus, if Alonso' s


newer van, cellular phone, and preference for workplace stations were tied to his AQCB

position, under O' Neal, he could not prove an adverse action against him for loss of these

benefits when he was reassigned out of the AQCB back to the central office.

          But, the    parties   dispute the     role of     the   newer van and cellular   telephone.      Martinez states


that the newer van was for the AQCB employee because that employee interacted with

customers and should          drive the   nicer vehicle.           Alonso, however, claims that he was assigned the


newer van "[     s] everal months" before he became an AQCB employee, dispelling the idea that he

was assigned      the   van   only because       of    his AQCB capacity.       Suppl. CP    at   232.     Also, the record


demonstrates that Qwest assigned a number of Qwest central office employees cellular phones,


not   just AQCB       employees.       Because the record is conflicting regarding whether the newer van

and Qwest- issued cellular telephone were tied to the AQCB position, O' Neal is unavailing.



                                                                   10
No. 43703 -1 - II



Viewed in a light most favorable to Alonso, the van and cellular phone benefits, as well as the


preference in employer -supplied workstations, computers, and desk telephones, were not strictly

tied to the AQCB position and thus, a reasonable juror could conclude that when Alonso was


transferred from AQCB              and   was   forced to      also       relinquish    those "   benefits," he suffered an


adverse employment action.



                              2. Adverse action through hostile work environment


            Alonso   also    claims     that he    suffered    from        a   negative    employment         decision —being

subjected to an increasingly hostile work environment as the subject of harassment targeting his

protected statuses.




            The WLAD is not intended as a general civility code. Adams v. Able Bldg. Supply, Inc.,

114 Wn.       App.   291, 297, 57 P. 3d 280 ( 2002).                And not everything that makes an employee

unhappy is      an actionable adverse action.           Smart       v.   Ball State Univ., 89 F. 3d 437, 441 ( 7th Cir.


1996).


            Alonso offers evidence of various derogatory comments made by Martinez or other

employees.       In his deposition, he       recounted   how Martinez               referred   to Mexicans    as "   Spics."   CP


at   115.    Workers also openly mocked Alonso' s speech impediment and accent; some described

his speech as like a " ghetto Hispanic" and contrasted themselves to Alonso because they " spoke

correct     English,"   unlike   him. CP     at   144, 145.    And, Alonso stated that Martinez made fun of his


veteran status       and    PTSD   by    asking, "[ A] re     you    crazy     or   something ?" 'and,   "[   D] id you know


Vietnam      was over      in 1978 ?" Suppl. CP at 233.


            Viewed in a light most favorable to Alonso, the evidence showed that Martinez and other


employees openly bullied and condoned the bullying of Alonso because of his accent stemming



                                                               11
No. 43703 -1 - II



from his Mexican -American heritage and speech impediment disability, as well as his disabled

veteran     status.   The bullying was so pervasive that other employees noticed and sympathized

with   Alonso;    one coworker opined          that Alonso'    s    treatment was   so   bad that "[ i] t was evident in


the way that Ben Martinez treated Joseph Alonso that he did not like him and that he was trying

to   make   Joseph'   s   working   conditions so poor        that Joseph   would quit."      CP   at   140.    Because of


the severity of this unbridled bullying and harassment, this hostile work environment amounted

to an adverse employment action.


                                                     D. Conclusion


          We hold that Alonso has sufficiently established a prima facie disparate treatment case

under   the direct     evidence    test.    We view the evidence in a light most favorable to Alonso as the


nonmoving party           and    further hold that Alonso           produced   direct    evidence   of (   1)   Martinez' s


discriminatory        motive —    his hatred toward Alonso as a disabled Gulf War veteran with a speech

impediment,       and (   2) how he    suffered adverse employment          decisions —loss of his newer van and


cell phone, and an increasingly hostile work environment laden with bullying and mockery of his

Mexican- American heritage and disabilities.


                                            II. HOSTILE WORK ENVIRONMENT


          Alonso next argues that he presented sufficient evidence of a hostile work environment to


defeat summary judgment for Qwest.                  Specifically, Alonso contends that Martinez and others

made comments based on their animus toward his protected statuses; their harassment affected

his   employment;         and   Martinez'   s participation   in the harassment is imputed to Qwest.              Viewing

the evidence in a light most favorable to Alonso, we hold that Alonso presented sufficient


evidence to establish a prima facie hostile work environment case.




                                                               12
No. 43703 -1 - II



         To establish a prima facie hostile work environment claim, the plaintiff must allege facts


proving that ( 1)        the harassment      was unwelcome, (          2) the harassment was because the 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. Loeffelholz v. Univ. of Wash.,

175 Wn.2d 264, 275, 285 P. 3d 854 ( 2012).                       Harassment is only actionable if it is sufficiently

pervasive    so     as    to    alter the    conditions       of employment              and    create   an   abusive     working


environment. Antonius v. King County, 153 Wn.2d 256, 261, 103 P. 3d 729 ( 2004).

                               A. Harassment Motivated by Alonso' s Protected Status

         The parties do not dispute that Alonso did not welcome any hostility or harassment.

Therefore, we next analyze whether Alonso' s protected status motivated the harassment.

         To establish the second element of a hostile work environment claim, a plaintiff need


only produce " evidence that supports a reasonable inference that [ his protected class status] was

the motivating factor for the            harassing      conduct."      Doe   v.       Dep' t   of   Transp., 85 Wn. App. 143,

149, 931 P. 2d 196,            review   denied, 132 Wn.2d 1012 ( 1997).                   Here, Martinez openly expressed

that he hated that Alonso was a disabled Gulf War combat veteran. Martinez even compared his

own veteran status with            Alonso'    s,   noting, " I   served and       I    got   crap."    Suppl. CP   at   233.   This


evidence, alone, supports a reasonable inference that Martinez' s hatred for Alonso as a disabled

Gulf War combat veteran motivated Martinez' s harassing conduct and condoning of others'

harassing    conduct —         including other employees bullying Alonso and vandalizing his work

station —   satisfying the second element in establishing a prima facie hostile work environment

claim.




                                                                  13
No. 43703 -1 - II



            Also, Alonso offered evidence that Martinez and others subjected Alonso to racially

derogatory          language. For example, Alonso testified in his deposition that Martinez characterized


Alonso       as "    not   a real    Mexican" based        on    Alonso'    s   eating habits.          CP   at   114.       Alonso also


testified that Martinez             and other coworkers referred           to Mexicans       as "   Spics."       CP   at   115. Buechel


declared that         a coworker said           Alonso   spoke   like   a " ghetto     Hispanic "; and, Zuniga contrasted his


own speech with                Alonso'    s,   saying that Zuniga       spoke " correct     English,"        unlike     Alonso.      CP at


144, 145.          Buechel       also recalled a     time that Martinez         said   Alonso " didn' t speak good English."


CP     at   144.    A jury could reasonably conclude that subjecting Alonso to derogatory racial name-

calling was motivated by racial or ethnic reasons and that comments touching on Alonso' s
                                                                                                                                13
English      skills   implied      racial and ethnic motivations           based     on   Alonso'   s   Mexican heritage.


            Moreover, Alonso, hampered by a speech impediment, offered evidence that he was the

regular      victim        of open       mocking for his     speech.        When a coworker reminded Martinez that


Alonso suffered from a speech impediment, an apparent plea for compassion, Martinez ignored

her.    So here, we can reasonably infer that the mocking of Alonso' s speech was at least partially

motivated by his speech impediment, a disability, which also satisfied the second element in

establishing a prima facie hostile work environment claim.




13
     Qwest         argues that these racial comments were not                      directed    at    Alonso personally.              But a

defendant need not levy derogatory racially charged language directly at the plaintiff to subject
the plaintiff to           a   hostile   work environment and survive       summary judgment. See Davis v. West
One Automotive       Group, 140 Wn. App.                  449, 457, 166 P. 3d 807 ( 2007), review denied, 163 Wn.2d
 1040 ( 2008) (   defendant' s derogatory statements about Dr. Martin Luther King, Jr. and calling
African       American plaintiff a " bitch" could be considered racially motivated and subjected
plaintiff to hostile work environment).




                                                                    14
No. 43703 - 1 - II


                                       B. Harassment' s Effect and Consequences


         Next, the parties disagree whether the harassment affected the terms and conditions of


Alonso' s employment.


         To determine whether conduct was severe or pervasive enough to affect the terms and


conditions of employment, we look at the totality of the circumstances, including 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 work

performance.            Washington          v.    The    Boeing   Co.,     105 Wn.   App.   1,   10,       19 P. 3d 1041 ( 2000).


Whether           offensive    comments          affect   the   conditions   of employment       is   a    factual   question.   See


Davis    v.       West One Auto.       Group,        140 Wn.      App.     449, 457, 166 P. 3d 807 ( 2007) (           holding that

employee' s          alleged    Humiliation         and    self diagnosed
                                                                -             mental   sickness       from " racially charged"


workplace comments raised inference that condition resulted from hostile work environment),

review    denied, 163 Wn.2d 1040 ( 2008).                         But 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.    Washington, 105 Wn. App. at 10.

          Here,       employees,       including          Martinez,   used   the racially   derogatory "          Spics" to refer to


some    Mexicans.         CP    at   115.    Coworkers also characterized Alonso and his speech as like that of

a " ghetto         Hispanic,"    implying         that he    spoke    incorrect English.     CP       at   144.    And, coworkers


openly mocked Alonso' s speech, to the point that another employee confronted Martinez in

Alonso'       s   defense.      Finally, Martinez expressed his hatred for Alonso' s disabled Gulf War

combat veteran status.




                                                                      15
No. 43703 -1 - II



        The harassment was so severe that in June 2010, Alonso visited a psychiatry emergency

room   in   response   to "   great stress at work" and an upsurge            in PTSD     symptoms.      Suppl. CP at 242.


Given the extent of harassment to which Alonso was subjected, and the medically documented

effect it had on his mental wellbeing, we hold that he sufficiently demonstrated that the alleged

harassment affected the terms and conditions of his employment.


                                          C. Harassment Imputable to Qwest


        Next, the parties disagree whether the alleged harassment may be imputable to Qwest.

Harassment is imputed to an employer when an owner, manager, partner or corporate officer


personally    participates      in the harassment.           Glasgow    v.   Georgia- Pacific   Corp.,    103 Wn.2d 401,


407, 693 P. 2d 708 ( 1985).              Managers are those whom the employer has given authority and

power   to   affect   the hours,       wages, and    working       conditions of   the   employer' s workers.     Robel v.


Roundup Corp., 148 Wn.2d 35, 48 n. 5, 59 P. 3d 611 ( 2002).

        Under this test,          we     analyze    whether      Martinez    was   a " manager "; so     we   must   review




whether he enjoyed the authority to affect the hours, wages, and working conditions of Qwest

employees.        See Robel, 148 Wn. 2d        at   48   n. 5.   Here, the record includes evidence that Martinez, a


QTI Operation Supervisor, set his crew' s hours; for example, in a June 2010 e -mail, Martinez


advised     his   crew of     their   new work schedules and start            times.     Alonso declared that Martinez


assigned     him   new work       hours    against   Alonso'     s will; and,   Alonso   stated, "   Martinez changed my

position     from working       at    AQCB to working in the Central Office."              Suppl. CP at 234. Evidence


also shows that Martinez managed how employees were to spend their work days on certain




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No. 43703 -1 - II



projects;    and   he   controlled      overtime    and      placement        on       of town
                                                                                   out -  -       projects.   Under Robel,


because Martinez had authority to affect employees' hours, wages ( at least in the context of who

could earn overtime),       and working conditions, he qualified as a manager, at least for summary

judgment     purposes.       See    148 Wn.2d           at   48   n. 5.      Alonso produced evidence that Martinez


personally    participated    in    some    of   the harassment, using " Spics" to describe Mexicans, CP at


115,   and   characterizing Alonso          as "   not    a real    Mexican,"       CP at 114, and not speaking good

English; thus, Alonso has demonstrated that the harassment is imputable to Qwest through

Martinez.     See Glasgow, 103 Wn.2d               at   407.      Viewing the evidence in a light most favorable to.

Alonso, we hold that he has established a prima facie hostile work environment claim and, thus,


the superior court erred in granting Qwest' s summary judgment motion on this issue.

                                                        III. RETALIATION


          Finally,   Alonso    contends      that Martinez unlawfully                retaliated   against   him because ( 1)


Alonso engaged in statutorily protected activity by reporting discrimination to the Qwest hotline;

 2) Qwest engaged in conduct tending to deter discrimination victims from coming forward, an

adverse employment action; and ( 3) the close temporal proximity between Alonso' s complaint

and    further   mistreatment      demonstrates         causation.        Here, Alonso failed to sufficiently establish a

prima facie retaliation case because he did not demonstrate that he phoned the hotline to report

                                                                        14
discrimination based         on     his   protected       statuses.          Therefore, the trial court did not err in


dismissing his retaliation claim.




14
     Instead, Alonso     called    to   complain about corruption, " vulgar conversation,"                  and mistreatment

in the form of heightened scrutiny and being singled out, without connecting these actions to a
protected status.       CP at 81.



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        The WLAD prohibits retaliation against a party asserting a claim based on a perceived

violation of his civil rights or participating in an investigation into alleged workplace

discrimination.       RCW 49. 60. 210.            To establish a prima facie retaliation case, a plaintiff must


show   that ( 1)    he   engaged         in statutorily       protected    activity, ( 2) his employer took an adverse


employment         action   against       him,   and (   3)    there is a causal link between the activity and the

adverse action.      Short       v.   Battle Ground Sch. Dist.,           169 Wn. App. 188, 205, 279 P. 3d 902 ( 2012).

        We must first determine whether Alonso produced sufficient evidence that he engaged in


statutorily protected activity that led to the retaliation.

        An employee engages in WLAD -
                                    protected activity when he opposes employment

practices forbidden by antidiscrimination law or other practices that he reasonably believed to be

discriminatory.       Short, 169 Wn.          App.   at       205.   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.         See Graves v. Dep' t of Game, 76 Wn.

App.   705, 712, 887 P. 2d 424 ( 1994) (            affirming lower court' s grant of summary judgment on the

plaintiff s retaliation claim because the complaints " were not of sexual discrimination ").


           Here, Alonso argues that he called the Qwest hotline to complain of discriminatory

activity   motivated        by    his statutorily    protected       statuses.    But according to the record, Alonso

called the hotline to report Martinez and Zuniga for corruption, mistreatment, and vulgar


language.      Alonso did not express to the hotline that these complaints were in response to


harassment based on any protected status. 15



is Qwest' s redacted hotline reports do not indicate that Alonso claimed he was being
discriminated against on account of his religious beliefs and values.



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        Because Alonso did not phone the hotline to report discrimination against him based on


any protected status, he did not establish a prima facie case under WLAD, and we need not

consider the remaining elements of a prima facie retaliation claim. Accordingly, we hold that the

superior court did not err in dismissing Alonso' s retaliation claim.

        We reverse the trial court' s dismissal of Alonso' s disparate treatment and hostile work

environment claims, and we affirm the trial court' s dismissal of his unlawful retaliation claim.




                                                                        Johanson,




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