Talley v. Seattle Pub. Sch.

SUSAN TALLEY, Individually, Appellant, v. SEATTLE PUBLIC SCHOOLS, Respondent.

No. 80934-2-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

April 26, 2021

UNPUBLISHED OPINION

BOWMAN, J. — Susan Talley sued Seattle Public Schools (SPS), alleging several forms of discrimination based on her race, age, and gender. She also claimed negligent and intentional infliction of emotional distress. The trial court dismissed Talley's claims on summary judgment. Because Talley failed to produce specific and material facts sufficient to support her allegations, we affirm.

FACTS

Talley is an African-American woman over 40 years old. She has been the administrative secretary at SPS' Dunlap Elementary School since 2002. According to Principal Winifred Todd and many of the Dunlap staff, Talley is a "[h]ighly competent and efficient" administrative secretary who knows her job well.

In September 2015, Issa El Hayek joined Dunlap as the assistant principal to Todd. El Hayek was new to SPS and school administration. On October 30, 2015, SPS' Southeast Region Executive Director of Schools Kelly Aramaki announced that El Hayek would become interim principal of Dunlap. Principal Todd would temporarily serve as interim principal at neighboring Martin Luther King Jr. Elementary School (MLK) while MLK's principal was on administrative leave.

El Hayek started as Dunlap's interim principal on November 2, 2015. That morning, he called for a meeting with Talley and office assistant Creigh Haty. Talley and Haty said they "couldn't meet" because they were busy checking in students for the day and there was no one to "cover the phones." El Hayek insisted they meet, and eventually, Talley met with him while Haty covered the office duties. Before the meeting, Talley e-mailed a colleague at another school, saying, "OMG!¹ Winifred [Todd] is gone and we have a little dictator here now and he is about to get cussed out."

According to Talley's account of that first meeting, El Hayek informed her that Aramaki had "directed" him to make some changes at Dunlap, including keeping the front door unlocked in the morning and Talley greeting each person as they arrive. Talley insisted the door remain locked for safety reasons. El Hayek told Talley that failure to follow the directions could cause her to be "snatched" from her job. After hearing these "directives," Talley told El Hayekthat she would no longer meet with him unless she had a union representative with her. She declined to speak with him several times throughout the day.

Shortly after her meeting with El Hayek, Talley e-mailed Aramaki to report that she felt "harassed, undermined and threatened by [El Hayek] and his actions." She also e-mailed Todd on November 2, complaining about El Hayek:

This is not going to work with Issa here. He undermines what is put in place and is sneaky about what he is doing which should involve the office staff not just him and his agenda. If he makes it through today it will be by the skin of his teeth!!

The relationship between Talley and El Hayek continued to deteriorate. El Hayek started questioning Dunlap staff about Talley. He asked instructional assistant Christopher Glenn if he liked Talley. During meetings designed to get to know the staff, El Hayek asked if they had any issues with Talley. He told people that he received daily complaints about Talley and asked staff to report their complaints.

Glenn saw El Hayek "be aggressive" and give Talley directions, saying, " 'This is your job description and this is what I need you to do and there's no ifs, ands, or buts. This is how it's going to be done.' " El Hayek told Glenn, " 'I'm the principal. She needs to know her place.' " And, " 'I can't work with Susan . . . [b]ecause she doesn't listen.' " El Hayek told substitute staff member Evelyn Beeler that he "needed to control" Talley and that "if he was a woman it would be easier."

Talley said that El Hayek would become angry and stand over her with his fists clenched. According to Talley, this happened "whenever I challenged him, whenever he would ask something or ask me to do something and I challengedhim about why or — or give him reasons why it can't be done, that's when he would get mad."

Talley complained to her SPS friends about El Hayek's requests and refused to open his e-mails because "I thought he wanted something from me." She told a Dunlap staff member, "Please don't ask him anything. He doesn't know anything!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!"

Talley communicated her frustrations to Todd many times. In mid-November, Todd responded to one of Talley's e-mails, encouraging Talley to make El Hayek "crazy":

You just keep working the plan. Send me the e[-]mails and I'll write the response. You breathe, write in your notebook and talk with other people to make him crazy! You do know that . . . when you don't have anything to say to him it drives him crazy. He is obsessed with you. I told you!

Todd also recommended that Talley stop writing the monthly newsletter to "[g]ive him rope." At one point, Talley e-mailed Todd that El Hayek "is about to crack!"

On January 7, 2016, Talley filed an SPS harassment, intimidation, and bullying (HIB) complaint against El Hayek. She alleged that El Hayek made the workplace "uncomfortable and unsafe" for her, citing several disagreements with his policies and their interpersonal dynamic. She made no allegations of discriminatory conduct in the complaint.

Soon after Talley filed the HIB complaint, El Hayek issued Talley two letters of counseling, both dated January 13, 2016. One letter explained that its purpose "is to inform you that you must follow my directions as a supervisor."The letter states:

Because several of my instructions to you have been meet [sic] with resistance or perplexity, I am putting my expectations down in writing. In the future, any failure to follow my direction will result in progressive discipline being imposed.

El Hayek then outlined his three expectations that Talley (1) receive his written approval for nonemergency communications with families, (2) provide him with advance notice of leave for a "personal emergency or personal illness," and (3) obtain his permission to use the school intercom for nonemergency purposes. The second counseling letter accused Talley of using inappropriate language in the office and provided "a formal reminder" of SPS policy that she could not use profane language at school.

Talley wrote responses to the letters denying the allegations, accusing El Hayek of using profanity, and complaining about his micromanagement. She hoped he could "find a balance between giving directive, micromanaging and undermining me in order for me to effectively complete my job responsibilities."

On February 2, 2016, Talley filed a second HIB complaint against El Hayek with SPS. Talley added allegations of discrimination based on race, gender, and age.

Ten days later on February 12, an incident occurred at Dunlap involving El Hayek and Talley's husband Ben Lawton, a teacher at MLK. Because Talley claimed she was afraid of El Hayek, Lawton sometimes walked Talley to her car after school. On that day, Lawton and El Hayek exchanged words in the Dunlap parking lot in front of several employees. El Hayek called SPS security and the police to report that Lawton had threatened and harassed him. SPS immediatelyplaced Talley and Lawton on paid administrative leave pending an investigation into the allegations.

El Hayek petitioned for a restraining order against Lawton. At the hearing, Dunlap instructional assistants Glenn and Joseph Phillips testified that El Hayek was the aggressor and that Lawton never threatened El Hayek. Phillips, who was "new" and "trying to graduate to become a teacher," also testified that he felt pressured by El Hayek to testify in El Hayek's favor. But Phillips refused "to lie." Phillips said El Hayek gave him a "horrible" performance review for that school year.²

SPS eventually determined that Talley and Lawton's actions on February 12, 2016 did not warrant administrative leave or discipline. Lawton returned to teaching at MLK. Talley agreed to remain on paid leave for the rest of the school year and El Hayek withdrew his antiharassment action.³

An outside investigation into Talley's HIB complaints concluded on May 12, 2016 that El Hayek neither harassed nor discriminated against Talley. Instead, it determined that many of Talley's complaints were "objectively reasonable acts of a principal." And the "hostile dynamic" between the two was attributable to "personality conflicts, misunderstandings, and poor communication."

In September 2018, Talley filed a complaint against SPS, alleging hostile work environment, disparate treatment, and disparate impact. She also allegedshe suffered adverse employment consequences in retaliation for reporting El Hayek's race, age, and gender discrimination. Finally, Talley claimed both negligent and intentional infliction of emotional distress.

SPS moved for summary judgment dismissal. The trial court found that Talley "failed to establish specific and material facts to support each element of her prima facie case" and "failed to offer any substantial evidence to establish the existence of a genuine issue of material fact." The court granted summary judgment and dismissed Talley's claims.

Talley appeals.

ANALYSIS

Talley argues the trial court erred in dismissing her claims on summary judgment. We review orders on summary judgment de novo. Kim v. Lakeside Adult Family Home, 185 Wn.2d 532, 547, 374 P.3d 121 (2016). Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998) (citing CR 56(c)). We consider the evidence and reasonable inferences from it in the light most favorable to the nonmoving party. Kim, 185 Wn.2d at 547.

To defeat summary judgment, the opposing party must set...