Audra Wilson, V. Archdiocesan Housing Authority, Et Ano

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

AUDRA WILSON,
No. 84372-9-I
Appellant,
DIVISION ONE
v.
UNPUBLISHED OPINION
ARCHDIOCESEN HOUSING
AUTHORITY, SHARONDA
DUNCAN, JANE DOE DUNCAN,

Respondents.

DÍAZ, J. — Appellant Audra Wilson alleges that her former supervisor,

Sharonda Duncan, grabbed her buttock and, after Wilson rebuffed her, was

subsequently hostile and threatening, causing Wilson to resign. Wilson brought

claims of (1) hostile work environment and (2) retaliation against Duncan and her

former employer, the Archdiocesan Housing Authority (AHA), under the

Washington Law Against Discrimination (WLAD). Wilson now appeals the trial

court’s order granting summary judgment for respondents and dismissing all of

Wilson’s claims. We conclude that the trial court erred in granting summary

judgment because, when viewed in the light most favorable to Wilson, genuine

issues of material fact remain. A jury should decide whether the combination of

unsolicited sexual commentary, unwanted touching of a sexual body part, and later
No. 84372-9-I/2

changes to Wilson’s work environment, after she told her supervisor not to touch

her, could constitute valid claims for a hostile work environment and retaliation.

Thus, we reverse and remand for further proceedings.

FACTS

The following recitation of the factual allegations is based on the record

before us, which includes Wilson’s statements at her deposition, declarations, and

other exhibits in support of or in opposition to AHA’s motion for summary judgment.

A. Events of 2018 to 2019

Wilson and Duncan became friends in or around 2012 when they both

worked at a local social service agency. At times, Duncan would make sexual

remarks toward Wilson, which Wilson alternatively described as either “normal

things that women do,” such as “[y]ou’re pretty,” or Duncan “hit[ting] on [her]” and

describing “sexual acts she will want to do to [her]” (“here and there”). 1

As to the latter, at her deposition, Wilson testified that Duncan would

describe various sexual acts, which from the context of her statements broadly,

she appeared to refer to what, in her understanding, lesbians would do. Wilson

described these topics as something Duncan would “always talk about” between

2011 and 2013. During her deposition, Wilson said she was “real uncomfortable”

discussing such acts. Again, Wilson distinguished between, on the one hand, e.g.,

1 At oral argument, counsel for AHA acknowledged that there was no evidence in

the record that Wilson initiated or solicited the latter types of comments. Wilson v.
Archdiocesan Housing Authority et ano, No. 84372-9-I (April 18, 2023), at 16 min.,
58 sec., through 17 min., 51 sec., video recording by TVW, Washington State’s
Public Affairs Network, https://tvw.org/video/division-1-court-of-appeals-
2023041253/?eventID=2023041253.
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No. 84372-9-I/3

back rubs “if your back is hurting” or comments made if “I’m feeling upset or

something” and, on the other hand, Duncan’s comments about touching her

breasts. In an exchange with opposing counsel, Duncan testified, “[t]he breast part

is totally different.”

Wilson added that this type of dialogue began “getting weird to [her]” when

Duncan referred to specific sexual acts. Wilson found the comments “weird”

enough she asked her sister and best friend for advice. Specifically, Wilson asked

her sister for advice about how to handle when “Sharonda . . . coming onto me . .

. I was kind of like wonder what that means and what that looks like.”

In terms of how she responded to Duncan’s comments, Wilson advised

Duncan she was “strictly dicky,” which Wilson purportedly used to convey her

heterosexuality, and Duncan knew that Wilson was “not gay.” But generally Wilson

would “laugh it off and say ew that’s nasty.” She explained that, because they

were friends, she did not take it seriously and was not offended.

About five years later, in 2018, Duncan recruited Wilson to work with her at

AHA. When Wilson began working at AHA in December 2018, Duncan and she

remained social friends, getting lunch during the workday and calling each other

after work. Wilson was employed as a case manager for AHA, in its Bakhita

Gardens residence, from December 6, 2018, to July 17, 2019. Duncan supervised

case managers and, at this stage of the litigation, we accept she was Wilson’s

supervisor. 2

2 The parties discuss another incident in their briefing, although the incident does

not appear to be part of the underlying claims or defenses. For this reason, we
note it for further context, but do not rely on it for our analysis below. Namely,
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In or around June 2019, Wilson requested Duncan’s assistance using a

“bed bug machine” in the laundry room. When Wilson bent down to pick up a

sheet, Duncan “grabbed” her buttock with one hand, which Wilson described as

occurring in a “fresh way like a ‘woo’ type of deal.” Wilson immediately grabbed

Duncan’s hand, held it “real tight,” and told her “don’t ever touch me like that.”

Duncan apologized, and Wilson ran out of the laundry room. Wilson testified that,

while Duncan may have hugged her or patted her on the back previously, Duncan

had never touched her with aggressiveness before, and it “startled” and “scared”

her. Duncan denies any encounter or touching occurred in the laundry room.

Shortly after the laundry room incident, Duncan offered Wilson a ride home

from work. During the car ride, Duncan told Wilson about a time when she used

to work with a “girlfriend” who “became aggressive” and Duncan “got her fired.”

Possibly in the same car ride, Duncan also mentioned that she “gets her cousin to

beat people’s ass” for her. Wilson inferred that Duncan told her these stories to

warn her she would face retaliation if she reported the laundry room incident.

Soon after, Wilson went on vacation and, when she returned, learned that

Duncan had recently hired someone Duncan described as her cousin on

Facebook. Wilson believes her relationship with Duncan changed further after that

hiring, testifying in her deposition that the situation “was really weird after I came

sometime in spring 2019, Duncan asked Wilson to “write up” another employee for
something Wilson “didn’t see.” Wilson refused. After that, Wilson testified that
Duncan became cooler and more distant, but not hostile. While Wilson “didn’t like
how [Duncan’s] demeanor changed after [Wilson] wouldn’t write a statement
against [that employee],” they discussed it and Duncan said they were “still cool.”
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back from my vacation.” Wilson believed Duncan hired this cousin to take

Duncan’s position, so that Duncan could be promoted.

From that point forward, in the period between the laundry room incident

and when Wilson left AHA, she described escalating mistreatment by Duncan.

Wilson described “little stuff where other people wouldn’t catch it,” that Duncan did

to Wilson, such as how she treated her in meetings. According to Wilson, other

coworkers described observing the changed dynamic and encouraged Wilson to

report or document her interactions with Duncan. Wilson knew how the treatment

made her feel, but thought Duncan was just “having a bad day.”

During this time, Wilson could not receive the supervisory support she

needed from Duncan, including being unable to meet with Duncan. Wilson further

was denied authorization to attend trainings on client management and

administration. Wilson instead sought help from other coworkers during this time

to show her “how to do random stuff.”

On or about July 3, in a final “blow-up” meeting with multiple staff members

present, Wilson discussed a client with a challenging issue about whom she was

concerned. Wilson then suggested a possible approach to the issue. In the

meeting, Wilson testified that Duncan “attack[ed]” her, saying Wilson did not “know

her job,” did not “know what she was talking about,” and was “really trying to tear

[Wilson] down.” Wilson left the meeting in tears, at the time saying she felt belittled

and triggered, and that she may “just put in [her] resignation.” Wilson

acknowledged that she said she would resign. She described that decision as a

“fight or flight” situation.

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No. 84372-9-I/6

Shortly after, Crystal Perine called Wilson back into the meeting, where

Duncan and Duncan’s cousin were present. Perine told Wilson that, if she wanted

to quit, she would accept Wilson’s resignation. Wilson responded that she was not

going to resign, that she would continue to work her job, and that she revoked her

resignation. Wilson testified that her supervisors “tried to run” with her resignation

and, stood around her in a corner, and told her she was going to resign.

On July 16, 2019, Wilson emailed a supervisory staff member at AHA

advising AHA she wished to continue in her position. Wilson explained that, when

she initially indicated she would resign, she did so “under distress” because

“Sharonda Duncan made [Wilson’s] working environment intolerable” due to

Duncan creating an “intimidating, offensive, and hostile work environment.”

In a letter subsequently mailed to Wilson on October 4, 2019, AHA stated

that it accepted Wilson’s verbal resignation offered on July 10, and her last day of

employment with AHA was July 18, 2019.

Just after leaving AHA, Wilson attended counseling and received

medication for around one year “as a result of” her termination.

B. Motion for Summary Judgment

On August 5, 2020, Wilson sued Duncan and AHA in King County Superior

Court. Wilson brought three claims: gender-based discrimination, 3 hostile work

environment, and retaliation under WLAD.

3 As confirmed at oral argument, Wilson does not appeal the standalone claim of

gender-based discrimination and, as such, we will not disturb that ruling. Wash.
Ct. of Appeals oral argument, supra at 4 min., 24 sec. through 5 min., 3 sec.
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No. 84372-9-I/7

AHA moved for summary judgment on July 1, 2022. On August 9, 2022,

the trial court granted summary judgment to AHA. In its order, the trial court held

that Wilson did not present a prima facie case of a hostile work environment

because (a) Plaintiff did “not testify” that the sexualized banter was unwelcome

and (b) the one incident of groping was not “sufficiently pervasive” to create an

abusive work environment. The trial court, citing Estevez v. Faculty Club of Univ.

of Wash., also held that Wilson’s retaliation claim failed because, even assuming

an adverse employment action was taken, Wilson did “not present[] evidence that

would allow a reasonable jury to find ‘a causal link between [Plaintiff’s] [protected]

activity and [Defendants’] adverse action.’” 129 Wn. App 774, 797, 120 P.3d 579

(2005)).

Wilson appeals and seeks attorney fees and costs.

ANALYSIS

Our review of the trial court’s order granting summary judgment is de novo,

and we engage in the same inquiry as the trial court. Marquis v. City of Spokane,

130 Wn.2d 97, 105, 922 P.2d 43 (1996). The inquiry on summary judgment

generally, as in WLAD claims specifically, is whether there is a genuine issue as

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

matter of law. Id.; CR 59. “‘A material fact is one upon which the outcome of the

litigation depends.’” Walter Dorwin Teague Assocs., Inc. v. Dep’t of Revenue, 20

Wn. App. 2d 519, 524, 500 P.3d 190 (2021) (quoting Wash. Fed. v. Azure Chelan,

LLC, 195 Wn. App. 644, 652, 382 P.3d 20 (2016)). “We consider the evidence

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No. 84372-9-I/8

and the reasonable inferences therefrom in a light most favorable to the nonmoving

party.” Marquis, 130 Wn.2d at 105.

“Sex discrimination in employment is prohibited by this state’s law against

discrimination. RCW 49.60 declares the right to be free from discrimination on the

basis of race, creed, color, national origin, sex, marital status, age or disability to

be a civil right.” DeWater v. State, 130 Wn.2d 128, 134, 921 P.2d 1059 (1996)

(citing RCW 49.60.010; RCW 49.60.030(1)).

WLAD is to be “construed liberally to effectuate its purpose of remedying

discrimination.” Gibson v. Costco Wholesale, Inc., 17 Wn. App. 2d 543, 556, 488

P.3d 869 (2021). This is so because “‘a plaintiff bringing a discrimination case in

Washington assumes the role of a private attorney general, vindicating a policy of

the highest priority.’” Jin Zhu v. N. Cent. Educ. Serv. Dist.-ESD 171, 189 Wn.2d

607, 613, 404 P.3d 504 (2017) (quoting Marquis, 130 Wn.2d at 109).

Tying these general principles together, summary judgment is “often

inappropriate” in “discrimination cases” because “WLAD ‘mandates liberal

construction.’” Frisino v. Seattle Sch. Dist. No. 1, 160 Wn. App. 765, 777, 249 P.3d

1044 (2011) (quoting Martini v. Boeing Co., 137 Wn.2d 357, 364, 971 P.2d 45

(1999) (citing RCW 49.60.020); see also Gamble v. City of Seattle, 6 Wn. App. 2d

883, 887-88, 431 P.3d 1091 (2018) (describing resolution at summary judgment

as “typically inappropriate”). In other words, summary judgment is “often

inappropriate” because the evidence “will generally contain reasonable but

competing inferences of both discrimination and nondiscrimination that must be

resolved by a jury.” Davis v. W. One Auto. Grp., 140 Wn. App. 449, 456, 166 P.3d

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No. 84372-9-I/9

807 (2007). Summary judgment in WLAD claims is reserved for those times “when

the plaintiff fails to raise a genuine issue of fact on one or more prima facie

elements.” Johnson v. Chevron U.S.A., Inc., 159 Wn. App. 18, 27, 244 P.3d 438

(2010).

Because WLAD is modeled on the federal Title VII of the federal Civil Rights

Act, federal cases interpreting Title VII are persuasive authority. Lodis v. Corbis

Holdings, Inc., 172 Wn. App. 835, 849, 292 P.3d 779 (2013).

A. Hostile Work Environment

We conclude the trial court erred in granting summary judgment to AHA on

Wilson’s hostile work environment claim.

1. Law

Sexual harassment is a form of sex discrimination. Floeting v. Grp. Health

Coop., 192 Wn.2d 848, 853, 434 P.3d 39 (2019). Sexual harassment claims are

generally categorized as “quid pro quo harassment” claims or “hostile work

environment” claims. DeWater, 130 Wn.2d at 134 (quoting Payne v. Children’s

Home Society, 77 Wn. App. 507, 511, n. 2, 892 P.2d 1102 (1995)).

To establish a prima facie claim of a hostile work environment, the

employee must prove (1) she was subject to harassment which was unwelcome,

(2) the harassment was because of sex, (3) the harassment affected the terms or

conditions of employment, and (4) the harassment is imputed to the employer.

DeWater, 130 Wn.2d at 135 (citing Glasgow v. Georgia-Pac. Corp., 103 Wn.2d

401, 406-407, 693 P.2d 708 (1985)); see also Little v. Windermere Relocation,

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No. 84372-9-I/10

Inc., 301 F.3d 958, 966 (9th Cir. 2002).

“To determine whether the harassment is such that it affects the conditions

of employment, we consider: the frequency and severity of the discriminatory

conduct; whether it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an employee's work

performance.” Washington v. Boeing Co., 105 Wn. App. 1, 10, 19 P.3d 1041

(2000). This element is determined with regard to the totality of the

circumstances.” Antonius v. King County, 153 Wn.2d 256, 261, 103 P.3d 729

(2004) (citing Glasgow v. Ga–Pac. Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708

(1985)).

“‘[W]hether the plaintiff has established that she or he was subjected to a

hostile work environment, and whether the employer is liable for the harassment

that caused the environment’ presents ‘mixed questions of law and fact that we

review de novo.’” Christian v. Umpqua Bank, 984 F.3d 801, 808 (9th Cir. 2020)

(citing Little, 301 F.3d at 966). Viewing the evidence in the light most favorable to

the nonmoving party, “we must determine whether there are any genuine issues

of material fact and whether the [trial court] correctly applied the relevant

substantive law.” Id. (citing Dominguez-Curry v. Nev. Transp. Dep’t, 424 F.3d

1027, 1033 (9th Cir. 2005)). Courts should “not weigh the evidence or determine

whether the employee’s allegations are true.” Davis v. Team Electric Co., 520 F.3d

1080, 1088 (9th Circ. 2008).

We review each element in turn.

2. Discussion

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No. 84372-9-I/11

a. Whether the harassment was unwelcomed

“[T]o constitute harassment, the complained of conduct must be unwelcome

in the sense that the plaintiff-employee did not solicit or incite it, and in the further

sense that the employee regarded the conduct as undesirable or offensive.”

Glasgow, 103 Wn.2d at 406.

At issue is whether a reasonable jury might find that Duncan’s alleged

groping of Wilson’s buttock in the laundry room was unwelcome. As Wilson

testified at her deposition, as soon as Duncan did so, Wilson grabbed her hand

and said “don’t ever touch me like that again.” Wilson described that such contact

had never previously occurred between them, and the interaction made her feel

scared and upset. Such testimony, even though Duncan denies the contact

occurred, is enough to create an issue of material fact that the groping was

“undesirable or offensive.” Id.

Respondents argue in response that Wilson “participated in the playful

relationship and thus now cannot contend that this single incident was offensive .

. . as [Wilson] herself participated and solicited this kind of relationship.” There is

a yawning gap in respondents’ argument. Respondents cite to no case law holding

that sexualized banter between parties (what respondents characterize the

dialogue) -- even if at first “playful” or welcomed -- establishes as a matter of law

that the plaintiff thereby consented to or welcomed a later physical touching. When

a party fails to provide citation to support a legal argument, we assume counsel,

like the court, has found none. State v. Loos, 14 Wn. App. 2d 748, 758, 473 P.3d

1229 (2020). We strongly decline to make such case law. And again, because

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Wilson expressly testified to objecting to the behavior, there is a question of fact

as to whether the contact was unwelcome, even if arguendo, the prior sexualized

so-called banter was “consensual,” as respondents argue.

There is, however, a question of material fact whether Wilson consented to

all the prior sexualized comments in the first place. While Wilson had testified to

having laughed off and not being offended by some comments, she distinguished

those comments and explained that other comments were “weird” and that she

was uncomfortable even repeating them at her deposition. Furthermore, as

counsel for Duncan acknowledged at oral argument, nothing in the record

suggests that Wilson initiated or solicited those latter types of comments, contrary

to respondents’ characterization in its briefing. Wilson v. Archdiocesan Housing

Authority et ano, No. 84372-9-I (April 18, 2023), at 16 min., 58 sec., through 17

min., 48 sec., video recording by TVW, Washington State’s Public Affairs Network,

https://tvw.org/video/division-1-court-of-appeals-

2023041253/?eventID=2023041253. When viewed in the light most favorable to

Wilson, those latter types of comment then were unwelcomed because they were

unsolicited, unincited and offensive. Glasgow, 103 Wn.2d at 406.

Finally, on this point, the time between when most of the sexualized

comments occurred (2013) and the groping occurred (2019) cuts in two ways,

when viewed in the light most favorable to Wilson, neither favorable to

respondents. Either the time period does not suggest that Wilson would have

provided consent in 2013 for actions in 2019, and as such, is legally irrelevant. Or,

the “weird” and “uncomfortable” comments continued into her employment at AHA,

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which means it constitutes an independent type of unwelcome conduct. Id. at 406-

07 (examining both verbal and physical conduct as undesirable or offensive).

Ultimately, “the question whether particular conduct was indeed unwelcome

presents difficult problems of proof and turns largely on credibility determinations.”

Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 68, 106 S. Ct. 2399, 91 L. Ed. 2d

49 (1986). To the extent that it weighed the evidence, ignored certain statements

Wilson made, and drew inferences in favor of AHA, the trial court erred because

such determinations are for a jury.

Therefore, Wilson has adduced sufficient factual support to make a prima

facie case that the groping in the laundry room was unwelcome, whether that

action stands alone or represented an escalation of a pattern of unwanted verbal

conduct.

b. Whether the harassment was because of sex

The second element of a prima facie case of hostile work environment,

“harassment because of sex,” can be established through the unwanted touching

of a sexual body part. Case law interpreting Title VII, which is persuasive, holds

that such conduct is prohibited regardless of whether the perpetrator and the victim

are of the same or different genders. Rene v. MGM Grand Hotel, Inc., 305 F.3d

1061, 1068 (9th Cir. 2002) (citing Oncale v. Sundowner Offshore Svcs., 523 U.S.

75, 79, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998)). Furthermore, a plaintiff-

employee’s (perceived or actual) sexual orientation neither provides nor precludes

a cause of action for sexual harassment. Id. at 1068.

Stated otherwise, unwanted physical touching targeting body parts “linked”

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to the victim’s sexuality “is inescapably ‘because of ... sex.’” Id. at 1066 (quoting

Doe v. City of Belleville, 119 F.3d 563, 580 (7th Cir.1997)). And, the touching of

the buttocks in particular can constitute sex-based harassment. Id. (citing as

patting buttocks cases Schmedding v. Tnemec Co., Inc., 187 F.3d 862, 865 (8th

Cir. 1999) and Jones v. Wesco Investments, Inc., 846 F.2d 1154, 1155 (8th Cir.

1988)). Contrary to respondents’ unsupported suggestion, a plaintiff need not

allege that a sexual organ was touched.

In Rene, although presenting a different fact pattern, at issue was a male

employee facing harassment by other male employees due to his sexual

orientation. Id. at 1063. The Ninth Circuit reversed the district court’s holding for

the defendant employer because the district court erred in finding no sex-based

harassment occurred because Rene was harassed by other men for being a gay

man. Id. at 1066. The Ninth Circuit held:

“The [Supreme] Court’s holding that offensive sexual touching in a
same-sex workforce is actionable discrimination under Title VII
necessarily means that discrimination can take place between
members of the same sex, not merely between members of the
opposite sex. Thus, [the plaintiff in Oncale] did not need to show that
he was treated worse than members of the opposite sex. It was
enough to show that he suffered discrimination in comparison to
other men.”

Id. at 1067 (citing Oncale, 523 U.S. at 79).

Here, Wilson need not allege or establish Duncan’s romantic or sexual

interest in Wilson, but need only adduce facts that may convince a jury that Duncan

groped a sexual body part to establish the harassment was “because of sex.”

Rene, 305 F.3d 1068. She did so testify here. There is also nothing in the record

that suggests that Duncan did the same to, or otherwise treat Wilson the same as,

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other women. Finally, contrary to respondents’ argument, there is no sweeping

“close friend” exception, or some de minimis exception, when it comes to the

unwelcome touching of a sexualized body parts, such as the buttocks. We again

decline to create one here.

“Therefore, a jury armed with ‘[c]ommon sense, and an appropriate

sensitivity to social context’ could reasonably conclude” the actions alleged here

could be because of sex. Fuller, 865 F.3d at 1168 (9th Cir. 2017) (citing Oncale,

523 U.S. at 82). As the court summed up in Fuller, “[i]t is up to a jury, not us, to

decide whether that plausible inference is the best one to draw from this record.”

Id.

c. Whether the harassment affected the terms of employment

Our next inquiry is whether there is a genuine issue of material fact as to

whether the groping (along with any prior or subsequent actions) affected the terms

and conditions of Wilson’s employment.

As a starting point, in determining whether there is a genuine issue of

material fact, we need not look only at the unwanted verbal comments and the

groping, but also the entire environment, or overall “ambience” of the workplace

behavior, in which Duncan operated.

For example, in Christian v. Umpqua Bank, Christian filed a Title VII claim

against her employer after she alleged the employer did not deter a bank customer

from continuing to stalk her at work and send her letters after she declined his

advances. Christian, 984 F.3d at 806-07. After requesting the customer be barred

from the bank multiple times and being rebuffed by a supervisor, Christian

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transferred to another branch and eventually quit after advice from a medical

professional for managing her severe anxiety from the experience. Id. at 808.

The Ninth Circuit concluded the district court erred in isolating the stalking

Christian experienced (that occurred in two distinct time periods) and in finding

that, when so isolated, that the separate instances did not constitute severe and

pervasive harassment. Id. at 809-10. The Ninth Circuit explained, “[t]he real social

impact of workplace behavior often depends on a constellation of surrounding

circumstances, expectations, and relationships.” Id. (citing Oncale, 523 U.S. at

81-82). Moreover, the court explained, “what might be an innocuous occurrence

in some circumstances may, in the context of a pattern of discriminatory

harassment, take on an altogether different character, causing a worker to feel

demeaned, humiliated, or intimidated on account of her gender.” Id. at 810 (citing

Draper v. Coeur Rochester, Inc., 147 F.3d 1104, 1109 (9th Cir. 1998)). Finally, the

court held, “[w]e cannot say that a juror would not find that fear reasonable or the

resulting environment hostile. The district court’s overly narrow approach—which

ignored the reality ‘that a hostile work environment is ambient and persistent, and

that it continues to exist between overt manifestations’—was error.” Id. (quoting

Draper, 147 F.3d at 1108 n.1 (9th Cir. 1998)).

Here, like in Christian, we review the overall “ambience” of the workplace

that Duncan created, in the light most favorable to Wilson. In that light, Wilson

described not only a single incident of being groped in the laundry room, but (a),

before that, “weird” unsolicited, sexualized comments that she was uncomfortable

detailing at her deposition, and (b), after that, (i) thinly veiled threats of retaliatory

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actions (as was done against another girlfriend), or even physical intimidation,

Duncan may take against Wilson; (ii) escalating mistreatment by Duncan, including

failures to communicate, to provide supervisory support and to authorize trainings;

(iii) all of which led to the final “blow up” meeting, where Duncan “attack[ed]” her,

causing Wilson to resign. Wilson testified that each was temporally and causally

related to her declining Duncan’s propositions.

Respondents counter that Wilson “engaged in a sexually playful relationship

with Duncan for years, where she solicited, incited, and participated in the ‘girly’

behavior,” and, as such, the single incident of groping “simply does not rise to the

level of severity required for a reasonable person to find in her favor.”

Respondents flatly state that Wilson’s “allegations are not so severe and pervasive

as to affect the terms and conditions of employment.” This is an assumption and

an “overly narrow approach,” which at this stage in the proceedings, we cannot

make. Christian, 984 F.3d at 810.

Instead, when viewed in its totality and the light most favorable to Wilson,

there is a question of fact for whether Wilson experienced severe and pervasive

harassment – again beginning with the sexualized commentary, continuing

through the groping, and ending with her forced termination – because she

rebuffed the advances.

Moreover, even if we were to take a narrower view of the record, “a single

‘incident’ of harassment . . . can support a claim of hostile work environment

because the ‘frequency of the discriminatory conduct’ is only one factor in the

analysis.” Little, 301 F.3d at 967. Furthermore, the duration of unwanted touching

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or other harassment is also not dispositive. “It is not how long the sexual

innuendos, slurs, verbal assaults, or obnoxious course of conduct lasts. The

offensiveness of the individual actions complained of is also a factor to be

considered in determining whether such actions are pervasive.” Carrero v. New

York City Hous. Auth., 890 F.2d 569, 578 (2d Cir. 1989) (superseded by statute on

other grounds as stated in Olszewski, v. Bloomberg L.P., No. 96-3393, 1999 WL

182596 (S.D.N.Y. 1999)).

Thus, respondents’ argument that, “[w]hen the relationship escalated to a

place in which she no longer wanted to partake in it, the conduct stopped,” is

unavailing. If a reasonable jury could find the one incident of groping severe

enough to alter Wilson’s work environment, then this element has been met. This

is particularly true, given that Duncan was Wilson’s supervisor. Dominguez-Curry,

424 F.3d at 1039 (finding that courts “have repeatedly held that a single

discriminatory comment by a plaintiff’s supervisor or decisionmaker is sufficient to

preclude summary judgment for the employer”). 4

Furthermore, if there is a genuine factual dispute about the frequency or

severity of conduct, that creates a genuine issue of material fact, when viewed in

the light most favorable to the plaintiff. Dominguez-Curry, 424 F.3d at 1035. In

that case, the district court erred in granting summary judgment to the defendant

4 At oral argument, counsel for the respondents contested that Duncan was
actually Wilson’s supervisor. Wash. Ct. of Appeals oral argument, supra, at 13
min., 2 sec., through 15 min., 22 sec. This was the first time AHA contested such
a fact and, as such, we will not consider such a dilatory argument. RAP 12.1(a).
We note also that the only evidence in the record suggests Duncan was Wilson’s
supervisor and that AHA itself referred to Duncan as Wilson’s supervisor on the
first page of their brief. At a minimum, it is an issue of fact for the jury to resolve.
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employer because the district court disregarded testimony from the plaintiff

describing graphic, sexually explicit jokes as “everyday jokes.” Id. at 1035. The

Ninth Circuit held that dismissal of such allegations and determining the plaintiff’s

credibility were the province of the factfinder at trial, not a district court on summary

judgment. Id. at 1035-36.

Likewise, as in this case, “[w]hen severity is questionable, ‘it is more

appropriate to leave the assessment to the fact-finder than for the court to decide

the case on summary judgment.’” Fried v. Wynn Las Vegas, LLC, 18 F.4th 643,

648 (9th Cir. 2021) (quoting Davis, 520 F.3d at 1096). Thus, the trial court erred

on this ground.

Finally, Respondents do not contest the fourth element, whether Duncan’s

harassment may imputed to AHA. For these reasons, we conclude the trial court

erred in granting summary judgment to AHA on Wilson’s hostile work environment

claim.

B. Retaliation

We conclude that Wilson made a prima facie claim of retaliation under

WLAD sufficient to preclude summary judgment.

1. Law

The WLAD protects employees engaged in statutorily protected activity

from retaliation by their employer. RCW 49.60.210; Lodis, 172 Wn. App. at 847.

Specifically, “[i]t is an unfair practice for any employer . . . to discharge, expel, or

otherwise discriminate against any person because he or she has opposed any

practices forbidden by [the WLAD].” RCW 49.60.210(1). A claim of retaliation

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under WLAD thus requires establishing three elements: (1) the employee engaged

in a statutorily protected activity, (2) the employer took some adverse employment

action against the employee, and (3) there is a causal link between the protected

activity and the adverse action. Lodis, 172 Wn. App. at 846. We discuss each in

turn.

2. Discussion

a. Protected activity

Again, an employee engages in a statutorily protected activity under WLAD

when they oppose “any practices forbidden by” the act. Currier v. Northland

Servs., Inc., 182 Wn. App. 733, 742, 332 P.3d 1006 (2014) (quoting Coville v.

Cobarc Servs., Inc., 73 Wn. App. 433, 440, 869 P.2d 1103 (1994)). To show that

they are engaged in a statutorily protected activity, a plaintiff “need only prove that

[their opposition] went to conduct that was at least arguably a violation of the law,

not that [their] opposition activity was to behavior that would actually violate the

law against discrimination.” Estevez, 129 Wn. App. at 798 (quoting Kahn v.

Salerno, 90 Wn. App. 110, 130, 951 P.2d 321 (1998)).

When viewed in the light most favorable to Wilson, Duncan’s groping of

Wilson’s buttock in the laundry room “at least arguably” violated WLAD. Estevez,

129 Wn. App. at 798. In turn, the protected activity that Wilson engaged in was

telling Duncan after that incident never to touch her again. That allegedly forceful

statement was her “opposition” to the forbidden act. Currier, 182 Wn. App. at 742;

see also Lodis, 172 Wn. App. at 848 (holding that the “term ‘oppose,’ undefined in

the statute, carries is ordinary meaning: ‘to confront with hard or searching

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questions or objections’ and ‘to offer resistance to, contend against, or forcefully

withstand.’”) (quoting W EBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1583

(2002).

Respondents argue that, while complaints about discriminatory conduct are

statutorily protected activities, Wilson “never complained” at staff meetings,

investigatory meetings, or by email. By this, it appears respondents mean that

Wilson needed to file a formal complaint or advise persons other than her direct

supervisor (Duncan) about Duncan’s actions. Respondents provide no case law

in support of this position. Loos, 14 Wn. App. 2d at 758 (holding that when a party

fails to provide citation to support a legal argument, we assume counsel, like the

court, has found none).

More substantively, as this court explained a decade ago, “the United States

Supreme Court recently interpreted the opposition clause in Title VII very broadly.”

Lodis 172 Wn. App. at 850 (citing Crawford v. Metro. Gov't of Nashville & Davidson

County, Tenn., 555 U.S. 271, 276, 129 S. Ct. 846, 172 L. Ed. 2d 650 (2009)). As

the Court described in Crawford, “[t]he employer argued the opposition clause did

not cover Crawford, because she had not instigated or initiated a complaint. The

Court rejected this theory.” Id. at 851 (citing Crawford, 555 U.S. at 276).

We conclude that the Respondents’ suggested reading of “opposition” is too

constrained and goes against the legislature’s directive “that the provisions of the

WLAD ‘shall be construed liberally for the accomplishment of the purposes

thereof.’” Currier, 182 Wn. App. at 741-42 (citing RCW 49.60.020). This liberal

understanding of the term “oppose” is particularly true here where the person to

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whom Wilson lodged her objection was indeed her direct supervisor, whom Wilson

asked to stop an action that at least arguably violated WLAD. Wilson thereby also

placed AHA on notice of her opposition, i.e., the protected activity.

We hold that, when viewing the evidence in the light most favorable to

Wilson, there is sufficient evidence in the record for this first element of a claim of

retaliation.

b. Adverse action

“Adverse employment action means a tangible change in employment

status, such as ‘hiring, firing, failing to promote, reassignment with significantly

different responsibilities, or a decision causing a significant change in benefits.’”

Crownover v. State ex rel. Dep’t of Transp., 165 Wn. App. 131, 148, 265 P.3d 971,

980 (2011) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S. Ct.

2257, 141 L. Ed. 2d 633 (1998)). “If shown, constructive discharge is an adverse

employment action.” Jordan v. Clark, 847 F.2d 1368, 1377 n. 10 (9th Cir. 1988).

Wilson claims the adverse action AHA took was constructive discharge. An

employee is constructively discharged when (1) the employer deliberately makes

an employee’s working conditions intolerable; (2) thereby forcing the employee to

resign; (3) a reasonable person in an employee’s shoes would have felt compelled

to resign; and (4) the action harmed the employee. Sneed v. Barna, 80 Wn. App.

843, 849, 912 P.2d 1035 (1996).

“Generally, whether working conditions have risen to ‘intolerable’ level, [as

required for constructive discharge,] is a factual question for jury.” Id. at 849-50

(citing Sanchez v. City of Santa Ana, 915 F.2d 424, 431 (9th Cir. 1990)).

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Here, as to the first element, Wilson testified that the working conditions

became intolerable because, as reviewed previously, Duncan made thinly veiled

threats of a both professional and physical safety nature, refused to give Wilson

supervisory assistance with her day-to-day work and professional development,

and made slights in front of others, leading to an all-out personal attack. Contrary

to respondents’ characterization, it was only by way of summary that Wilson said

“it was bad.” For these reasons we conclude that there is a question of fact that a

jury should evaluate whether such conditions, if shown, are intolerable.

As to the second element, Wilson testified that she felt forced to resign upon

the alleged treatment by Duncan in the staff meeting, to the point where she claims

she said in that moment, in tears, she may as well resign. Wilson explained that,

in this meeting, she felt like Duncan was “trying to trigger me, talking me down . . .

talking to me like I am stupid . . . just making me look dumb in front of the whole

coworkers . . . It was bad. I had to literally walk out crying.” When called back into

a meeting, Wilson said that she did not mean to resign, but the staff would not

accept the verbal withdrawal.

Based on this testimony, again in the light most favorable to her, we

conclude that there is a genuine question of material fact as to whether Wilson felt

forced to resign and wrongly was not allowed to rescind her resignation. If we were

to agree with respondents’ argument that the working conditions could not have

been “so intolerable” if Wilson asked to continue to work, we would not be taking

the facts in the light most favorable to Wilson.

Respondents do not contest the third or fourth elements of constructive

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discharge. Thus, we hold that, when viewing the evidence in the light most

favorable to Wilson, there is sufficient evidence in the record for a reasonable jury

to find that an adverse action occurred.

c. Causal link

Again, the third element for a claim of retaliation is whether a jury could find

a causal link between the protected activity (Wilson telling Duncan not to touch

her) and subsequent adverse action (here, a constructive discharge).

“‘Because employers rarely will reveal they are motivated by retaliation,

plaintiffs ordinarily must resort to circumstantial evidence to demonstrate

retaliatory purpose.’” Currier, 182 Wn. App. at 746-47 (quoting Estevez, 129 Wn.

App. at 799). At the summary judgment stage, the plaintiff’s burden is one of

production, not persuasion. Cornwell, 192 Wn.2d at 412. Thus, “to avoid summary

judgment on causation, the employee must show only that a reasonable jury could

find that retaliation was a substantial factor in the adverse employment decision.”

Id. at 412-13.

“Employees may rely on the following facts to show this: (1) the employee

took a protected action, (2) the employer had knowledge of the action, and (3) the

employee was subjected to an adverse employment action.” Id. at 413 (citing

Wilmot, 118 Wn.2d 46, 69, 821 P.2d 18 (1991)).

In Cornwell, Cornwell’s supervisor terminated her shortly after learning of a

lawsuit Cornwell filed against a prior supervisor at the same workplace. Id. at 415-

416. There, our Supreme Court held that, given the proximity in time between the

knowledge and termination, it was “a reasonable inference that these actions were

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in retaliation for Cornwell’s previous lawsuit.” Id. (citing Raad v. Fairbanks North

Star Borough School Dist., 323 F.3d 1185, 1197 (2003) (“That an employer’s

actions were caused by an employee’s engagement in protected activities may be

inferred from proximity in time between the protected action and the allegedly

retaliatory employment decision.”) and Wilmot, 118 Wn.2d at 69 (“‘[p]roximity in

time between the claim and the firing is a typical beginning point’” for proving

retaliation) (alteration in quoting 1 LARSON, supra, § 6.05[5], at 6-51)).

Here, again, Wilson testified to escalating negative changes to her work at

AHA after Duncan groped her in the laundry room and Wilson told her not to touch

her again. Viewing the record in the light most favorable to Wilson, Duncan, as

her supervisor, obviously would have been aware that the alleged incident and

objection occurred. Then, shortly after this incident, Duncan made the thinly veiled

threat that she “got someone fired,” could get someone beaten up, and began

(when viewed in the light most favorable to Wilson) saying things to “trigger” Wilson

and demean her in front of her coworkers in meetings. The adverse employment

action suffered by Wilson was the constructive discharge, reviewed above.

This alleged constructive discharge occurred shortly after, within one or two

months, after Wilson opposed Duncan’s advances and, thus, it was “a reasonable

inference that these actions were in retaliation for” Wilson’s opposition to the

alleged groping. Cornwell, 192 Wn.2d at 415-416.

Therefore, Wilson “presented the necessary circumstantial evidence to

show that her [opposition to Duncan’s touching] was a substantial motivating factor

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in her” constructive discharge. Id. at 416.

In turn, because respondents do not contest the final element of her

retaliation claim, 5 a prima facie case of retaliation was made and it was error to

dismiss it. 6

C. Attorney Fees and Costs

RAP 18.1 permits recovery of attorney fees and costs on review if the

applicable law grants that right. RAP 18.1(a). As a result, if a party requests fees

under this rule, the appellate court may grant them. Id. WLAD grants parties the

right to attorney fees and costs on appeal. Frisino, 160 Wn. App. at 786. If a party

is successful on appeal, the appellate court may direct on remand the trial court to

award fees and the costs of the appeal, should the same party prevail in the lower

court. Id.

Thus, we direct that the trial court grant Wilson an award of her fees and

costs for this appeal, if and only if she ultimately prevails on her claims.

CONCLUSION

5 We note that Wilson alleged that she was forced to pay for counseling and

medication for over a year just after the incident occurred.
6 Normally, where a “plaintiff establishes a prima facie case [of retaliation], then

the defendant may rebut the claim by presenting evidence of a legitimate
nondiscriminatory reason for the adverse action. This shifts the burden back to
the plaintiff to prove that the employer’s reason is pretextual. The trier of fact must
then ‘choose between inferences when the record contains reasonable but
competing inferences of both discriminatory and nondiscriminatory actions.’”
Currier, 182 Wn. App. at 743 (quoting Burchfiel v. Boeing Corp., 149 Wn. App.
468, 483, 205 P.3d 145 (2009)). We need not reach whether respondents rebutted
the prima facie case, as respondents’ entire argument below and on appeal
revolved around Wilson’s alleged failure to make her prima facie case.
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We reverse the dismissal of Wilson’s hostile work environment claims and

remand this matter to the superior court for further proceedings.

WE CONCUR:

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