Jan. 3 --A communications worker who claims he was treated less favorably and mocked by his boss and others based on his Mexican American national origin, military veteran status and speech impediment raised triable disparate treatment and harassment claims under the Washington Law Against Discrimination, a state appeals court decided Dec. 31 (Alonso v. Qwest Commc'ns Co., 2013 BL 359006, Wash. Ct. App., No. 43703-1-II, 12/31/13).
Reversing a lower court, the Washington Court of Appeals found that Joseph Alonso produced direct evidence that his Qwest Communications Co. supervisor Ben Martinez discriminated against him based on his WLAD-protected statuses by transferring Alonso to a different position with lesser benefits and by mocking and condoning others' mocking of Alonso.
According to Alonso, “Martinez openly stated that he hated disabled Gulf War combat veterans and specifically that he hated that Alonso was disabled and receiving disability pay.” Alonso also alleged that Martinez and others referred to Mexicans as “spics” and that they openly mocked Alonso's accent and lifelong speech impediment, Judge Jill M. Johanson said.
Some of the same proof supported Alonso's hostile work environment claims based on his national origin, military status and disabilities, the judge added. She cited evidence that “[t]he harassment was so severe that in June 2010, Alonso visited a psychiatric emergency room in response to 'great stress at work' and an upsurge in [his post-traumatic stress disorder] symptoms.” The harassment may be imputable to Qwest, Johanson said, because Martinez was Alonso's manager for purposes of the WLAD.
The court, however, affirmed summary judgment in favor of Qwest and Martinez on Alonso's WLAD retaliation claims. Although Alonso called Qwest's employee hotline on a number of occasions to complain about Martinez, none of those complaints ever mentioned discrimination or harassment, so Alonso never engaged in the protected activity needed to establish retaliation under the WLAD, the court ruled.
According to the opinion, Alonso is Mexican American and a Gulf War combat veteran who receives partial disability for a service-related back injury and PTSD. He has had a speech impediment since childhood, which required doctors to surgically modify the roof of his mouth.
Alonso joined Qwest in 1999 as a central office equipment installation technician, installing and maintaining network infrastructure. In 2006, he was reassigned to a position servicing customer location sites, known as an “AQCB” position. Several months before his reassignment, Qwest had provided Alonso with a new work van, a cellular telephone, office space and a computer.
Work problems started for Alonso the following year, when Martinez became his manager. Although Martinez also is Mexican American and a military veteran, by April 2010 the two men had developed a strained relationship, the court said.
According to Alonso, Martinez surrounded himself with other Qwest employees who collectively mistreated Alonso and tormented him because of his Mexican heritage, his military status and his speech impediment and other disabilities.
Among other things, Martinez and another worker referred to Mexicans as “spics,” a colleague described Alonso's speech as being like a “ghetto Hispanic” and co-workers openly mocked Alonso's speech difficulties.
In addition, Alonso asserted that Martinez “hated the fact that [Alonso] was receiving disability pay.” He alleged that Martinez remarked, “I will tell you what I hate, people that served in the first Gulf War for five days and claim a disability,” before adding, “I served and I got crap.”
Alonso called Qwest's corporate ethics and compliance advice line to complain about Martinez, but didn't link any of the objectionable conduct he reported to his WLAD-protected statuses.
Martinez apparently found out about the call and the harassment increased. According to Qwest employee Margaret Buechel, “It was obvious from the way that Ben [Martinez] was acting towards Joseph [Alonso] that he knew that Joseph had complained.”
Martinez's alleged retaliation included changing Alonso's start time from his preferred 5:00 a.m.; subjecting Alonso's performance to greater scrutiny; threatening to switch Alonso from a four-day, 10-hour work week to a five-day, eight-hour work week; and denying him more lucrative work and overtime opportunities. Martinez also later reassigned Alonso from his AQCB position back to the central office and forced Alonso to trade in his “nice” work van for “an old junky van” and to relinquish his company-provided mobile phone and computer.
In addition, co-workers spread hand-sanitizing liquid over Alonso's desk telephone; glued a computer mouse to the mouse pad at his work station another time; and applied a greasy substance to Alonso's computer mouse. Alonso also discovered a wet puddle in his work chair on one occasion.
Alonso continued to call the company hotline to complain about Martinez, but apparently never mentioned discrimination based on his national origin, disabilities or military status. He did, however, sue Qwest and Martinez in state court, asserting disparate treatment, harassment and retaliation claims under the WLAD.
A state trial court granted summary judgment against Alonso on all claims. Alonso appealed.
Reviving most of Alonso's claims, the appeals court found direct evidence that he was subjected to disparate treatment based on his military status, national origin and disabilities. It cited Martinez's alleged statement regarding his hatred of disabled combat veterans.
“This comment does not expressly reference Alonso, but the record demonstrates that Alonso was the only disabled Gulf War combat veteran at Qwest and that he claimed a 40 percent combat disability stemming from his service,” Johanson said. “Martinez knew of Alonso's combat veteran status and, according to Alonso, even 'stated that he hated the fact that I was receiving disability pay.' ”
The court also cited the alleged reference to Mexicans as “spics” and the open mocking of Alonso's speech impediment and accent with terms such as “ghetto Hispanic.” That “unbridled bullying” alone could constitute an adverse employment action, but there also was evidence that Martinez removed Alonso from AQCB duty and transferred him to the central office and stripped him of his newer van and mobile phone.
“Viewed in a light most favorable to Alonso, the van and cellular phone benefits, as well as the preference in employer-supplied workstations, computers, and desk telephones, were not strictly tied to the AQCB position and thus, a reasonable juror could conclude that when Alonso was transferred from AQCB and was forced to also relinquish those 'benefits,' he suffered an adverse employment action,” Johanson wrote.
The court found that Martinez's alleged open expression of hatred for Alonso's disabled Gulf War veteran status alone would support a reasonable inference that Alonso experienced a hostile work environment--“including other employees bullying Alonso and vandalizing his work station”--based on his military status. He also presented evidence of racially derogatory language, including that he wasn't “a real Mexican” given his eating habits, the court said.
“Moreover, Alonso, hampered by a speech impediment, offered evidence that he was the regular victim of open mocking for his speech,” the court added, noting that Martinez allegedly ignored a co-worker who reminded him that “Alonso suffered from a speech impediment, an apparent plea for compassion.”
The court said “the medically documented effect” the alleged harassment had on Alonso's “mental wellbeing,” together with the extent of the bullying, would support a finding that it was harmful to Alonso. Alonso also provided a basis for imputing liability for the hostile environment to Qwest, the court ruled.
It said harassment may be imputed to an employer when an owner, partner, corporate officer or manager personally participates in the alleged misconduct, and that managers are workers given authority and power by an employer to affect other workers' hours, wages or working conditions. “[B]ecause Martinez had authority to affect employees' hours, wages (at least in the context of who could earn overtime), and working conditions, he qualified as a manager, at least for summary judgment purposes,” the court wrote.
Judges J. Robin Hunt and Lisa Worswick joined the opinion.
Stephanie Bloomfield and Eric D. Gilman of Gordon Thomas Honeywell LLP in Tacoma, Wash., represented Alonso. James Sanders of Perkins Coie LLP in Seattle represented Qwest and Martinez.
By Patrick Dorrian
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Text of the opinion is available at http://www.bloomberglaw.com/public/document/ALONSO_v_QWEST_COMMUNICATIONS_COMPANY_LLC_No_437031II_2013_BL_359.
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