Pinney v. Nordstrom, Inc., No. 51844-5-I (WA 6/21/2004)

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Unpublished Opinion

STACY PINNEY, Appellant, v. NORDSTROM, INC., a Washington corporation; and PETER E. NORDSTROM, Respondents.

No. 51844-5-I

Court of Appeals of Washington, Division One.

Filed: June 21, 2004

Appeal from Superior Court of King County. Docket No: 01-2-19525-5. Judgment or order under review. Date filed: 02/06/2003. Judge signing: Hon. Nicole Mac Innes.

Counsel for Appellant(s), Abraham Albert Arditi, Attorney at Law, 600 University St Ste 2100, Seattle, WA 98101-4161.

Counsel for Respondent(s), Kimberly M Meyers, Lane Powell Spears Lubersky, 1420 5th Ave Ste 4100, Seattle, WA 98101-2338.

D. Michael Reilly, Lane Powell Spears Lubersky LLP, 1420 5th Ave Ste 4100, Seattle, WA 98101-2338.

Mary Colleen Kinerk, Cable Langenbach Kinerk Bauer LLP, 1000 2nd Ave Ste 3500, Seattle, WA 98104-1063.

Judith A. Endejan, Graham & Dunn PC, Pier 70, 2801 Alaskan Way Ste 300, Seattle, WA 98121-1128.

APPELWICK, J.

Stacy Pinney, a Nordstrom, Inc. (Nordstrom) employee, entered a relationship with Peter Nordstrom (Peter), who worked in management for Nordstrom. Pinney and Peter were involved intermittently from 1993 to the spring of 2001. Pinney voluntarily resigned from Nordstrom, Inc. in May 2000. She filed suit against Nordstrom, Inc. and Peter Nordstrom in July 2001, alleging sexual harassment under the Washington Law Against Discrimination. The trial court granted the respondents' motion for summary judgment and denied Pinney's motion for reconsideration. Pinney assigns error to the trial court's exclusion of expert witness testimony and its grant of summary judgment in favor of the respondents. Because Pinney fails to meet her burden of establishing a prima facie case of sexual harassment, we affirm the trial court's entry of summary judgment in favor of the respondents.

FACTS

In 1993, Stacy Pinney was a salesperson at Nordstrom's South Coast Plaza store in Orange County, California. Peter Nordstrom, a member of the family that dominates Nordstrom's management, was a regional manager for Nordstrom's Orange County stores at the time. Pinney was never directly supervised by Peter.

Pinney asked Peter out in February 1993, commencing an intimate relationship that continued intermittently until March 2001, when the two permanently severed their relationship. Although Peter moved to Seattle in June 1995, the two continued to date.

In March 1998, Pinney took a leave of absence from work and moved to Seattle for a six-week `trial marriage' with Peter. In May 2000, she resigned from Nordstrom and moved to Seattle to live with Peter. Pinney lived with Peter from June 2000 until October 2000. After Pinney moved back to California, she and Peter remained in contact.

Pinney did not seek reemployment at Nordstrom following her return to California, although she admits that Peter encouraged her to do so. In the fall of 2000, Pinney sought counseling, complaining of depression.

Both Pinney and Peter acknowledge that they remained in friendly contact after Pinney moved back to California. They did not date again until March 2001, when Pinney accepted Peter's suggestion that he visit her in California. During that visit, Peter accompanied Pinney on a tour of some condominiums with a realtor. Peter declined to purchase a condominium for Pinney. The record indicates that the two never reconciled following Peter's March 2001 visit.

Pinney brought suit against Peter and Nordstrom, Inc. in July 2001, alleging sexual harassment. The trial court found that Pinney failed to establish a prima facie case because (1) she had not shown that Peter's attention was unwelcome; and (2) that his attention did not significantly affect the terms and conditions of her employment at Nordstrom.

Accordingly, the trial court entered summary judgment in favor of the respondents on Pinney's sexual harassment claims.¹ The trial court denied Pinney's motion for reconsideration. Pinney appeals the trial court's summary judgment order on her sexual harassment claim and its order denying her motion for reconsideration. We affirm.

ANALYSIS

I. Expert Testimony

Pinney assigns error to the trial court's exclusion of testimony by forensic psychologist Dr. Maria Root.

We review rulings striking expert testimony offered on summary judgment de novo. Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998). `An expert's affidavit submitted in opposition to a motion for summary judgment must be factually based and must affirmatively show that the affiant is competent to testify to the matters stated therein.' Lilly v. Lynch, 88 Wn. App. 306, 319-20, 945 P.2d 727 (1997). Statements as to ultimate facts or conclusions of law may not be considered on summary judgment. Grimwood v. University of Puget Sound, Inc., 110 Wn.2d 355, 359-60, 753 P.2d 517 (1988).

In her declaration, Dr. Root stated that the relationship between Pinney and Peter `{a}s early as 1994, and clearly by 1995, . . . was not mutual.' She also concluded that Pinney's relationship with Peter `has all the dynamics of an emotionally abusive relationship and constitutes sexual harassment by psychological definitions.' The trial court found that Dr. Root's testimony was `replete with factual conclusions' and that her conclusions were based on incomplete information. Finding that Dr. Root's testimony would not `assist the trier of fact in either understanding the evidence or determining a fact in issue,' the trial court concluded that Dr. Root's testimony did not satisfy the criteria of Washington Rules of Evidence (ER) 702.

ER 702 permits testimony by a qualified expert where "scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue." Miller v. Likins, 109 Wn. App. 140, 147-48, 34 P.3d 835 (2001) (quoting ER 702). Based on our review of the record, we conclude that the trial court correctly characterized Dr. Root's testimony as speculative, conclusory, and based on incomplete information. Dr. Root's testimony failed to satisfy the criteria for expert testimony set forth in ER 702. Accordingly, the trial court did not err in excluding Dr. Root's declaration.

II. Sexual Harassment

Pinney assigns error to the trial court's summary judgment dismissal of her sexual harassment claim.

We review a grant of summary judgment de novo, engaging in the same inquiry as the trial court. Youngblood v. Schireman, 53 Wn. App. 95, 99, 765 P.2d 1312 (1988). Summary judgment is appropriate `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.' CR 56(c). `The facts and all reasonable inferences therefrom must be considered in the light most favorable to the nonmoving party.' Nivens v. 7-11 Hoagy's Corner, 133 Wn.2d 192, 197-98, 943 P.2d 286 (1997).

A motion for reconsideration is `addressed to the sound discretion of the trial court, whose judgment will not be reversed absent a showing of manifest abuse.' Perry v. Hamilton, 51 Wn. App. 936, 938, 756 P.2d 150 (1988). `A trial court abuses its discretion when it exercises it in a manifestly unreasonable manner or bases it upon untenable grounds or reasons.' Wagner Dev., Inc. v. Fidelity and Deposit Co. of Maryland, 95 Wn. App. 896, 906, 977 P.2d 639 (1999).

Pinney asserts a `hostile work environment' claim.² To establish a hostile work environment claim, the plaintiff has the burden of proving that (1) the harassment was offensive and unwelcome; (2) that it occurred because of sex or gender; (3) that it affected the terms or conditions of employment; and (4) that the harassment can be imputed to the employer. Boeing Co., 105 Wn. App. at 10. The failure to provide competent evidence of any one of the mandatory elements of a prima facie case is fatal to a plaintiff on summary judgment in a workplace discrimination suit. Sangster v. Albertson's, Inc., 99 Wn. App. 156, 160, 991 P.2d 674 (2000).

`{T}he Washington Supreme Court has generally looked to federal cases for guidance when ruling upon discrimination claims.' Carle v. McChord Credit Union, 65 Wn. App. 93, 99 n.7, 827 P.2d 1070 (1992). Washington cases and federal Title VII cases addressing hostile work environment claims guide our analysis here. We look to the totality of the circumstances to determine whether the harassment was ``sufficiently severe and persistent to seriously affect the emotional or psychological well being' of the employee.' Graves v. Department of Game, 76 Wn. App. 705, 714, 877 P.2d 424 (1994) (quoting Glasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 406, 693 P.2d 708 (1985)).

A. Offensive and Unwelcome

The trial court concluded that Pinney did not meet her burden of establishing that Peter's attention was offensive and unwelcome. Pinney argues on appeal that the trial court erred because questions of material fact exist as to whether Peter's conduct was unwelcome.

`The gravamen of any sexual harassment claim is that the alleged sexual advances were `unwelcome.'' Meritor Savings Bank v. Vinson, 477 U.S. 57, 68, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986) (quoting 29 CFR sec. 1604.11(a)). To satisfy the unwelcome and offensive element of the hostile work environment test, `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. The test looks to whether conduct is both objectively and subjectively unwelcome and offensive. The reasonable victim standard `classifies conduct as unlawful sexual harassment even when harassers do not realize that their conduct creates a hostile working environment.' Ellison v. Brady, 924 F.2d 872 (9th Cir. 1991). Pinney as the nonmoving party is entitled to all reasonable inferences...