Thomas v. Bethel Sch. Dist. No. 403

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KELLI THOMAS, Appellant, v. BETHEL SCHOOL DISTRICT NO. 403, Respondent.

No. 57013-1-II

Court of Appeals of Washington, Division 2

April 25, 2023

UNPUBLISHED OPINION

VELJACIC, J.

Kelli Thomas appeals the summary judgment dismissal of her claims for hostile work environment based on sexual harassment retaliation, wrongful termination in violation of public policy, intentional infliction of emotional distress (tort of outrage), and negligent infliction of emotional distress against Bethel School District No. 403 (District). She alleges that she presented a prima facie case for all of her claims. We conclude that summary judgment dismissal was appropriate and affirm.

FACTS

In August 2017, the District hired Thomas as an administrative assistant to Chris Brauer, one of the District's elementary school principals. The two had sons who both played high school football and trained at the same facility. Thomas and Brauer would occasionally exchange text messages about work-related issues or football events. After one football training event, Brauer texted Thomas, "Good to see you tonight...have a great Sunday." Clerk's Papers (CP) at 161 (alteration in original). At the end of winter break, Brauer texted Thomas, "Can't wait to see you tomorrow Kelli...Happy New Year!" CP at 160 (alteration in original).

Thomas claims that Brauer complimented her on how she looked and once, at the end of the day, rubbed her back and told her in a low voice it was time to go home. She also claims that Brauer greeted her with a bear hug at a football training session and introduced her to his brother-in-law and son. When Thomas introduced herself as Brauer's secretary Brauer replied, "No. You're more than that." CP at 399. He gave her another bear hug when she left. Thomas further claims that on one occasion Brauer asked how her husband's relationship was with his daughter after discussing Brauer's relationship with his daughter. On another occasion, Brauer commented that marriage is not what it used to be, after discussing a concern about a student's divorced parents.

On another occasion, Thomas claims that Brauer told her that his prior administrative assistant would bring him peanut butter and jelly sandwiches and that she should consider doing the same. Thomas also claims that Brauer invited her to a bar and opened the blinds to a window in his office that faced her desk.

In February 2018, Thomas reported to the District's Human Resources Director, Leigh Sinclair, that Brauer was sexually harassing her. Thomas told Sinclair that Brauer had rubbed her back while speaking to her in a low intimate tone, bear hugged her, inquired about her husband's relationship with their daughter, and asked her to make him peanut butter and jelly sandwiches.

The District's Executive Director of Human Resources, Todd Mitchell, met with Thomas, Sinclair, and Thomas's union representative about Thomas's complaint. After the meeting, Mitchell concluded there was "enough here to have a conversation (w/[Brauer])" and that there needed to be a change in behavior. CP at 130. Mitchell gave Thomas a copy of the District's sexual harassment policy and asked her to review it and decide whether her complaint should be treated as formal or informal.^[1]

Thomas alleges that the District imposed a gag order, restricting her from discussing her allegations against Brauer. But there is no written direction to that effect and Thomas could not recall who told her she could not discuss the matter.

Mitchell met with Brauer, who was surprised by the allegations. Brauer "largely confirmed" the actions but clarified they were "not intended to be sexual in nature." CP at 255, 265. He stated that Thomas had a difficult time when she first started and that he attempted to be encouraging and to communicate that she was doing a good job. Brauer thought the two were friends and that it was mutually acceptable to discuss family and mutual friends and to make joking comments.

Brauer told Mitchell that he would immediately modify his interactions with Thomas. He agreed to limit physical contact, limit personal conversation, and be cognizant of the personal space comforts of others.

Thomas continued at her current position without loss in pay or benefits. At first, Brauer exaggerated giving space to Thomas by walking near the wall when he passed Thomas, having other staff relay information to Thomas, and assigning tasks to other staff. But eventually, Brauer's conduct became clinical and not as exaggerated. All inappropriate advances and touching stopped. Thomas e-mailed Mitchell that she noticed an immediate change in Brauer. She also stated that she felt awkward and uncomfortable, but she did not feel threatened by Brauer's conduct "so it is a good thing." CP at 138. Thomas also clarified that her intent was that her complaint was informal.

In March 2018, Thomas e-mailed Mitchell again, stating, "[Brauer's] behavior has changed and I am grateful for that. But, because of this, he has very little interaction with me." CP at 141. Thomas inquired about the process of applying for another position within the District.

In May 2018, Thomas accepted a position as registrar at one of the District's middle schools and resigned from her administrative assistant position. Thomas stated that this was a lower level position. But she pursued this position to maintain her seniority within the District and her benefits.

In February 2021, Thomas filed a complaint against the District for hostile work environment based on sexual harassment; violation of the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW; retaliation; wrongful termination in violation of public policy; intentional infliction of emotional distress (tort of outrage); and negligent infliction of emotional distress.

The District filed a motion for summary judgment, seeking to dismiss all of Thomas's claims. The summary judgment hearing was scheduled for April 22, 2022. After all briefing was in on the motion, Thomas filed a surreply on April 20. The only evidence attached to the surreply was a declaration from Thomas, clarifying her arguments and commenting on exhibits attached to her original response to the District's motion for summary judgment. The District argued that the surreply should not be considered because it was not a permissible pleading under Pierce County Superior County Local Rules. The trial court agreed and struck it.

The trial court granted the District's motion for summary judgment, in part, dismissing Thomas's hostile work environment claim based on sexual harassment and intentional infliction of emotional distress (tort of outrage) claims. Both the District and Thomas filed motions for reconsideration. The trial court granted the District's motion for reconsideration and dismissed the remainder of Thomas's claims.

Thomas appeals the trial court's summary judgment dismissal of her claims.

ANALYSIS

Thomas contends that the trial court erred by granting the District's motion for summary judgment and dismissing her claims. She contends that she presented a prima facie case for hostile work environment based on sexual harassment retaliation, wrongful termination in violation of public policy, intentional infliction of emotional distress (tort of outrage), and negligent infliction of emotional distress. We disagree.

I. Summary Judgment Standard of Review

We review summary judgment orders de novo. Cornwell v. Microsoft Corp., 192 Wn.2d 403, 410, 430 P.3d 229 (2018). Summary judgment is appropriate where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." CR 56(c). Although evidence is viewed in the light most favorable to the nonmoving party, if that party bears the burden of proof on the issue and fails to make a factual showing sufficient to establish an element essential to the party's case, summary judgment is warranted. Young v. Key Pharms., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).

II. Surreply

As an initial matter, Thomas argues that the trial court erred in striking her surreply before the April 22, 2022 summary judgment hearing. She argues that the trial court was required to go through the factors set forth in Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997), before striking her surreply. We disagree.

Neither CR 56(c), nor Pierce County Superior Court Local Rules authorize a party to file a surreply. See CR 56(c) (requiring responding affidavits to be filed not later than 11 days before the hearing); PCLR 7(a)(3)-(6). Like CR 56, the local rules merely provide for the filing of a motion, a response, and a reply. Id. It is within a trial court's discretion whether to accept a surreply. See O'Neill v. Farmers Ins. Co. of Wash., 124 Wn.App. 516, 521, 125 P.3d 134 (2004).

In Keck v. Collins, 184 Wn.2d 358, 369, 357 P.3d 1080 (2015), the court held that a Burnet analysis is "appropriate when the trial court excludes untimely evidence submitted in response to a summary judgment motion." The three Burnet factors include whether a lesser sanction would probably suffice, whether the violation was willful or deliberate, and whether the violation substantially prejudiced the opposing party. 131 Wn.2d at 494. The Burnet analysis promotes the purpose of summary judgment, which is to test the sufficiency of evidence before trial, not to cut litigants off from their right to a jury trial when they have evidence to present. Keck, 184 Wn.2d at 369.

In Keck, the trial court struck a doctor's affidavit as untimely. Id. at 366. Here, the trial court struck an untimely and impermissible pleading that only contained a declaration from Thomas commenting on previously submitted...