[No. 25453-4-III. Division Three. August 30, 2007.]
[1] Judgment — Summary Judgment — Review — In General. An appellate court reviews a summary judgment de novo by engaging in the same inquiry as the trial court and applying the standard of CR 56(c) to the evidence and the reasonable inferences therefrom as viewed most favorably toward the nonmoving party. [2] Civil Rights — Employment Discrimination — Summary Judgment — Plaintiff's Prima Face Case — Averment of Specific Facts — Necessity. In order to avoid a summary judgment in favor of the defendant, the plaintiff in an employment discrimination action must aver specific and material facts supporting each element of the prima facie case. [3] Judgment — Summary Judgment — Issues of Fact — Determination as a Matter of Law — In General. A question of fact may be determined as a matter of law in a summary judgment proceeding only if reasonable minds could reach but one conclusion from the facts submitted. [4] Civil Rights — Employment Discrimination — Summary Judgment — Sufficiency of Plaintiff's Evidence — Competing Inferences. Summary judgment in favor of an employer in an employment discrimination action often is inappropriate because the evidence generally will support reasonable but competing inferences of both discrimination and nondiscrimination that must be resolved by a jury. [5] Civil Rights — Race Discrimination — Hostile Work Environment — Elements — In General. A prima facie case against an employer of hostile work environment racial discrimination under RCW 49.60.180(3) requires a showing by the claimant of (1) unwelcome harassment (2) that occurred because the claimant was a member of a protected class, (3) that affected the terms or conditions of the claimant's employment, and (4) that is imputable to the employer. [6] Civil Rights — Race Discrimination — Hostile Work Environment — Elements — Unwelcome Conduct — What Constitutes. For purposes of a claim against an employer of hostile work environment racial discrimination, offensive conduct is unwelcome if it was not solicited or incited by the claimant. [7] Civil Rights — Race Discrimination — Hostile Work Environment — Elements — Racial Motivation — Question of Law or Fact. Whether a workplace comment or statement was racially motivated is a question of fact that cannot be decided as a matter of law if reasonable minds could find that the comment or statement was racially charged or has racial overtones. [8] Civil Rights — Race Discrimination — Hostile Work Environment — Elements — Effect on Employment — Question of Law or Fact. The terms and conditions of employment are affected by racially charged comments in the workplace if the comments are sufficiently pervasive as to alter the conditions of the employment and create an abusive working environment. This is a question of fact that is determined by looking at the totality of the circumstances. The question may not be decided as a matter of law against an employee if the evidence supports an inference that the comments caused stress between the employee and co-workers and led to the employee's becoming so ill as to take days off from work. [9] Civil Rights — Race Discrimination — Hostile Work Environment — Elements — Imputability to Employer — Test — Question of Law or Fact. For purposes of an action against an employer for hostile work environment racial discrimination, the offending conduct is imputable to the employer if the employer knew or should have known of the conduct and failed to take reasonable corrective action to end the harassment. Whether the employer's acts were sufficient to end the harassment is a question of fact. [10] Civil Rights — Race Discrimination — Discriminatory Treatment — Elements — In General. A prima facie case against an employer of disparate treatment racial discrimination requires a showing by the claimant (1) that the claimant belongs to a protected class and (2) that the employer treated the claimant less favorably in the terms or conditions of employment (3) than a similarly situated, nonprotected employee (4) who does substantially the same work. [11] Civil Rights — Race Discrimination — Discriminatory Treatment — Racial Motivation — Question of Law or Fact. For purposes of a disparate treatment racial discrimination claim against an employer, whether the employer's adverse acts were racially motivated is a question of fact if the evidence supports competing inferences. [12] Civil Rights — Employment Discrimination — Retaliation — Elements — Causation — Partial Retaliatory Motivation. A claim against an employer for unlawful retaliation in employment under RCW 49.60.210(1) is actionable even if the discharge was only partly motivated by retaliatory influences. [13] Civil Rights — Employment Discrimination — Retaliation — Elements — In General. A prima facie claim against an employer of unlawful retaliation in employment under RCW 49.60.210(1) requires a showing by the claimant that (1) the claimant engaged in a statutorily protected activity, (2) the claimant was discharged or suffered some adverse employment action, and (3) retaliation was a substantial motive behind the adverse employment action. [14] Civil Rights — Employment Discrimination — Retaliation — Elements — Protected Activity — Reporting Hostile Work Environment. The reporting of a hostile work environment is a protected activity for purposes of a claim against an employer of unlawful retaliation in employment under RCW 49.60.210(1). [15] Civil Rights — Employment Discrimination — Retaliation — Elements — Causation — Proof — Substantial Factor. For purposes of a claim against an employer of unlawful retaliation in employment under RCW 49.60.210(1), whether retaliation was a substantial motive behind an adverse employment action taken by the employer is a question of fact if the evidence supports competing inferences. [16] Civil Rights — Employment Discrimination — Retaliation — Proof — Burden of Proof — Evidence of Pretext — Sufficiency. When a claimant presents sufficient evidence to establish a prima facie case of unlawful retaliation for opposition to a discriminatory employment practice, the burden shifts to the employer to produce admissible evidence of a legitimate reason for the adverse employment action. Summary judgment for the employer is improper if the claimant presents sufficient facts to raise a genuine issue of material fact as to whether the employer's claimed legitimate reason for the adverse employment action was a pretext. [17] Judgment — Summary Judgment — Purpose — Triable Issue. While the object and function of the summary judgment procedure is to avoid a useless trial, a trial is not useless, but is absolutely necessary, when there is a genuine issue as to any material fact. Nature of Action: Action under Washington's Law Against Discrimination (chapter 49.60 RCW) for unlawful employment discrimination based on claims of hostile work environment racial discrimination, disparate treatment racial discrimination, and retaliatory discharge. Superior Court: The Superior Court for Franklin County, No. 05-2-50667-1, Dennis D. Yule, J., on August 14, 2006, entered summary judgment in favor of the employer. Court of Appeals: Holding that the plaintiff presented sufficient evidence to prima facie establish his claims, the court reverses the judgment and remands the case for further proceedings. George Fearing-, for appellant. Dan'L W. Bridges- and Justin E. Bolster- (of McGaughey, Bridges, Dunlap, PLLC), for respondent. ¶1 STEPHENS, J. — Mark Davis worked for West One Automotive Group from February 2005 until July 2005. After he was terminated, he brought this action under Washington's Law Against Discrimination (WLAD), chapter 49.60 RCW, alleging hostile work environment, disparate treatment, and retaliatory discharge. The trial court granted West One's motion for summary judgment dismissal. Mr. Davis appeals. Because there are disputed issues of material fact, summary judgment was not proper and we reverse and remand for further proceedings. FACTS ¶2 The facts as adduced on summary judgment are set forth here in a light most favorable to the nonmoving party. See Marquis v. City of Spokane, 130 Wn.2d 97, 105, 922 P.2d 43 (1996). ¶3 Mark Davis, an African American, was hired as a salesman for West One in February 2005 and terminated in July 2005. During the course of his five-month employment, Mr. Davis experienced racially charged comments in the workplace. On one occasion, West One manager and Mr. Davis's supervisor, Dan Willard, asked Mr. Davis if he knew "why blacks have a day off on Martin Luther King Day?" Clerk's Papers (CP) at 52-53. When Mr. Davis said he did not know, Mr. Willard responded, "Because they shot and killed his black ass." CP at 53. Mr. Davis told Mr. Willard the comment was inappropriate and not to make such a comment again. Another time, Mr. Willard stated, "Blacks on the eastside, Mexicans on the west; hell I don't know." CP at 53. Mr. Davis was offended and told Mr. Willard so. A third incident involved Mr. Willard walking by Mr. Davis's desk, kicking it and remarking, "What's up, bitch." CP at 53. Mr. Davis was offended, regarding "bitch" as a derogatory term some African American men use to refer to each other. Mr. Davis again told Mr. Willard he was offended. ¶4 Fellow sales employee, Joe Klein, also made comments that Mr. Davis found racially offensive. On an occasion when Mr. Davis had customers in the finance office and his telephone rang, Mr. Klein stopped him from answering, stating, "Hey, Buckwheat, you can't get that call." CP at 53. Mr. Davis was offended and asked Mr. Klein to refer to him by name. One day after Mr. Davis had sold a car to a woman who worked with his wife and whose husband had previously bought a car from Mr. Klein, Mr. Klein grew angry and stated, "if you're going to be here at West One Automotive Group, you need to do things our way." CP at 53. Another time, some customers arrived to see Mr. Davis and Mr. Klein told him he had "black people" waiting for him. CP at 54. Mr. Davis was offended, noting he did not refer to Mr. Klein's customers as "white people." CP at 54. ¶5 Mr. Davis complained to West One Human Resources about Mr. Klein's "Buckwheat" comment. No disciplinary action was taken. At a subsequent staff meeting, Mr. Willard discussed generally with the entire staff that "no use of any type of insensitive name, nickname or not, would be tolerated." CP at 78. Because no action had been taken against Mr. Klein and because he regarded Mr. Willard as "the worst offender of racial discrimination," Mr. Davis did not complain again. CP at 54. ¶6 In June 2005, Mr. Davis was salesman of the month. Per customary practice, this honor entitled him to drive any vehicle on the lot for the month, enjoy free gasoline, and have his picture in the newspaper. Due to an error, Mr. Davis's picture was not put in the paper; instead another salesman was pictured and identified as salesman of the month. When Mr. Davis discovered the error and brought it to West One's attention, West One refused to place a corrected photo in the newspaper. ¶7 As salesman of the month, Mr. Davis chose to drive a Bavarian Motor Works (BMW) vehicle and began using it on a Saturday. On Sunday, Mr. Willard told Mr. Davis that the BMW needed to be returned for service. Mr. Davis believed this was not true and the car had already been serviced, so he drove the car home. Mr. Davis called in ill on Monday and asked to speak to Mr. Willard. When Mr. Willard did not respond to his page, he asked the receptionist to tell Mr. Willard he was sick. Approximately two days later, Mr. Davis returned to West One, driving the BMW. When he returned, he was terminated. ¶8 Mr. Davis brought this action under WLAD, chapter 49.60 RCW, alleging hostile work environment, disparate treatment, and retaliatory discharge. West One moved for summary judgment dismissal. ¶9 In support of its motion, West One submitted two declarations of counsel, attaching various documents, extracts of Mark Davis's deposition and declarations of Dan Willard, Joe Klein, and other West One employees. ¶10 The trial court granted West One's motion for summary judgment dismissing all claims. This appeal followed. ANALYSIS A. HOSTILE WORK ENVIRONMENT ¶14 The record on summary judgment provides ample evidence to sustain the first and second elements. Mr. Davis testified at deposition and by affidavit that he was subjected to racially derogatory comments, which he did not welcome and which he found offensive. While West One argues that certain comments, however offensive to Mr. Davis, were not racially motivated, this cannot be determined as a matter of law. Reasonable minds could find that Mr. Willard's statements regarding Dr. Martin Luther King, Jr., were racially charged and not merely "odd" as West One suggests. A jury could also find that calling an African American man a "bitch" has racial overtones, as understood by Mr. Davis. We reject West One's invitation to take "judicial notice" that such a term has no racial connotation but is invariably a gender-based term. See Resp't's Br. at 30. ¶15 The third element requires that the harassment be sufficiently pervasive as to alter the conditions of employment and create an abusive working environment. Glasgow, 103 Wn.2d at 406. Whether the comments here affected the conditions of Mr. Davis's employment is a question of fact. Mr. Davis asserts he was humiliated by these comments. He claims emotional distress. The record shows Mr. Davis was often late and absent from work. There was friction between him and other employees. When he called in ill a few days before his termination, Mr. Davis testified that he was "[p]robably mentally sick, drained." CP at 134. An inference could be drawn that this was the result of the hostile work environment. ¶16 To determine whether West One's conduct was sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment, we look at the totality of the circumstances. Adams v. Able Bldg. Supply, Inc., 114 Wn. App. 291, 296, 57 P.3d 280 (2002). Looking at all the evidence in the light most favorable to Mr. Davis, as required, we conclude he had raised a question of fact with regard to the third element of this claim. ¶17 To establish the fourth element, Mr. Davis must show West One knew or should have known of the comments and failed to take reasonable corrective action to end the harassment. Francom v. Costco Wholesale Corp., 98 Wn. App. 845, 853-54, 991 P.2d 1182, review denied, 141 Wn.2d 1017 (2000); Campbell v. State, 129 Wn. App. 10, 20, 118 P.3d 888 (2005), review denied, 157 Wn.2d 1002 (2006). ¶18 Mr. Davis reported the "Buckwheat" comment by Mr. Klein. He was not required to report the comments by Mr. Willard, as Mr. Willard was his supervisor. The comments occurred openly in the work place. West One did respond to the one comment Mr. Davis reported by telling all staff during a general staff meeting that use of insensitive names would not be tolerated. Whether this was sufficient to end the harassment is a question of fact. See Campbell, 129 Wn. App. at 20. ¶19 Given the numerous factual issues surrounding Mr. Davis's hostile work environment claim, we reverse the superior court's order granting summary judgment dismissal. B. DISPARATE TREATMENT ¶22 Mr. Davis next alleges he was treated less favorably than other similarly situated employees because he was not permitted to drive any car he wanted as salesman of the month, though Mr. Klein was always permitted to do so. When Mr. Davis was salesman of the month, he elected to drive a BMW. When he took the BMW, he was told to return it for service. There is a factual dispute about whether service was necessary. This dispute presents a question of fact for a jury. ¶23 Mr. Davis claims he was held to a higher standard than other employees; he was disciplined more harshly for missing work and being late than were his co-workers. West One disputes this claim. There is conflicting evidence as to the tardiness and truancy of Mr. Davis and other employees, and as to West One's tolerance, or not, of this behavior. On this record, summary judgment was not appropriate. ¶24 We reverse the superior court's order granting summary judgment dismissal of Mr. Davis's disparate treatment claim. C. RETALIATORY DISCHARGE ¶29 Viewing the evidence in a light most favorable to Mr. Davis, as we must on summary judgment, we conclude that Mr. Davis has presented facts that raise a genuine issue of material fact whether West One's proffered reason for his termination was a pretext. Renz, 114 Wn. App. at 619. Summary judgment dismissal of Mr. Davis's retaliation claim was not appropriate. CONCLUSION SCHULTHEIS, A.C.J., and BROWN, J., concur.