Large Award for Hostile Work Environment and Gender Discrimination – Statute of Limitation Issues

Broyles v. Thurston County, --- P.3d ----, 2008 (Wash.App. Div. 2 Nov 12, 2008) (NO. 35950-2-II)

The plaintiffs sued on hostile work environment and retaliation claims. After a three-week trial, the jury found in favor of all three plaintiffs, awarding $599,000 to Broyles, $250,000 to Sargent, and $673,000 to Sackett-DanPullo. The plaintiffs then moved for an award of attorney fees under the Washington Law Against Discrimination, chapter 49.60 RCW, (WLAD), asking for fees for the work in both Broyles I and Broyles II. The court granted this motion, awarding $1,296,108 in attorney fees and $158,474.62 in costs. The trial court used a 1.5 lodestar multiplier in setting its attorney fees award.

Thurston County appealed asserting (1) it is not liable for the acts of the prosecuting attorney, Edward Holm; (2) the trial court erred in allowing evidence outside the statute of limitations, in not applying collateral estoppel, and in allowing marital discrimination evidence; (3) the trial court erred in not allowing evidence detailing a meeting in which the plaintiffs and another deputy prosecutor consulted an attorney; (4) the jury's verdict was excessive; and (5) the trial court abused its discretion in setting the plaintiffs' attorney fee award. The Court of Appeals, Division II (Spokane) affirmed.

To establish a claim for a hostile work environment, a plaintiff must file the claim within the applicable statute of limitations and must prove that harassment (1) was unwelcome, (2) was because she is a member of a protected class, (3) affected the terms and conditions of her employment, and (4) was imputable to her employer. Domingo v. Boeing Employees' Credit Union, 124 Wn.App. 71, 84, 98 P.3d 1222 (2004). To satisfy the third element, the harassment must be sufficiently pervasive so as to alter her employment conditions. Washington v. Boeing, 105 Wn.App. 1, 10, 19 P.3d 1041 (2000). It is not sufficient that the conduct is merely offensive. Adams v. Able Bldg. Supply, Inc., 114 Wn.App. 291, 296, 57 P.3d 280 (2002).

Statute of Limitations and Evidence Issues

“Discrimination claims must be brought within three years to satisfy the statute of limitations. Antonius v. King County, 153 Wn.2d 256, 261, 103 P.3d 729 (2004). Washington’s Supreme Court in Antonius adopted the United States Supreme Court's analysis in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002), to determine whether an employer is liable for hostile work environment conduct that occurred more than three years before the plaintiff filed suit. 153 Wn.2d at 258. The court held that hostile work claims can occur over a series of days or years and generally are not single, discreet acts. Antonius, 153 Wn.2d at 264 (citing Morgan, 536 U.S. at 115). It held that “ ‘[p]rovided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability.’" Antonius,
153 Wn.2d at 264 (alteration in original) (quoting Morgan, 536 U .S. at 117).”

Clarke v. State Attorney General's Office, 133 Wn.App. 767, 785-86, 138 P.3d 144 (2006).

The Court derived several principles from these cases. First, discrete discriminatory acts are not actionable if time barred, even when they are related to acts alleged in timely filed charges. Each discrete discriminatory act starts a new clock for filing charges alleging that act. The charge, therefore, must be filed within the 180- or 300-day time period after the discrete discriminatory act occurred. The existence of past acts and the employee's prior knowledge of their occurrence, however, does not bar employees from filing charges about related discrete acts so long as the acts are independently discriminatory and charges addressing those acts are themselves timely filed. Nor does the statute bar an employee from using the prior acts as background evidence in support of a timely claim.

A plaintiff with a hostile work environment claim may not use that claim to seek damages for a discrete discriminatory act that is time barred but, if otherwise admissible, may use that discrete act as background information if it tends to support a hostile work environment claim.