FILED 

JULY 21, 2015 


In the Office of the Clerk of Court 


WA State Court of Appeals, Division III 


IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON 


DIVISION THREE 


KEESHA KNUTSON, ) No. 32540-7-III 

) 

Appellant, ) 

) 

v. ) UNPUBLISHED OPINION 

) 

WENATCHEE SCHOOL DISTRICT ) 


#246, a Washington school district, ) 


) 


Respondent. ) 


LAWRENCE-BERREY, J. - Keesha Knutson, the fonner director of childcare 

programs for the Wenatchee School District, sued the school district for a hostile work 

environment based on gender, retaliation for reporting a hostile work environment, and 

violation ofher due process rights. She alleged her harasser was Les Vandervort, the 

school district's chief financial officer, who served as Ms. Knutson's direct supervisor for 

most ofher employment. The trial court granted the school district summary judgment 

on all claims and dismissed Ms. Knutson's complaint with prejudice. Ms. Knutson 

appeals the hostile work environment and retaliation claim dismissals, contending the 
No. 32540-7-III 

Knutson v. Wenatchee Sch. Dist. 

trial court erred in concluding that certain acts occurred outside the statute of limitations. 

She also claims that there are genuine issues of material fact regarding her hostile work 

environment and retaliation claims. We conclude that summary judgment dismissal was 

appropriate and affirm. 

FACTS 

Keesha Knutson was the director of childcare programs for the Wenatchee School 

District. In this position, she oversaw the school district's after-school day care program, 

the Westside Early Learning Center for preschoolers, and the summer camp day care 

program. The school district terminated Ms. Knutson's employment on June 30, 2011, 

when it eliminated the position of director of childcare programs. 

During her employment at the school district, Ms. Knutson received positive 

performance reviews. In each of her first three years of employment, the reviews stated 

she exceeded all expectations. In her July 19,2005 performance evaluation, her 

supervisor, Mr. Vandervort, wrote, "'Keesha, you're great to work with and I appreciate 

you.'" Clerk's Papers (CP) at 5. In Ms. Knutson's September 16,2008 performance 

evaluation, Mr. Vandervort complimented her '" strong work ethic and helpful 

management style [that] model the characteristics critical to developing an effective child 

care team.'" CP at 5 (alteration in original). According to her June 29,2010 

performance evaluation, the last evaluation, Ms. Knutson performed'" satisfactory' " 

2 

No. 32540· 7·III 


Knutson v. Wenatchee Sch. Dist. 


work. CP at 5. 

A. Ms. Knutson's and Mr. Vandervort's pre-October 2008 working relationship 

Ms. Knutson and Mr. Vandervort enjoyed a warm work friendship until October 

2008. The two conversed about their respective personal lives hnd shared confidences. 

Mr. Vandervort flirted with her and sent flirtatious e-mails.Ms. Knutson testified that 

school district Human Resources Director Steve Cole knew of the flirtation before 

December 2008. 

At a 2006 school district conference in Tacoma, Ms. Knutson sat alone at night in 

her hotel room watching a television show. Mr. Vandervort came to her room to watch 

the show. According to Ms. Knutson, she did not invite him. Mr. Vandervort claims she 

invited him. The television show ended at 9 p.m., but Mr. Vandervort stayed an 

additional 5 to 10 minutes. He spoke to Ms. Knutson about his marriage and personal 

life. Ms. Knutson participated in the conversation. She did not find the conversation 

offensive. She was uncertain as to whether to characterize her reaction to the 

conversation as one of discomfort. Ms. Knutson did not know Mr. Vandervort well and 

did not know how to respond to his presence. After 5 to 10 minutes, Ms. Knutson stated 

she was tired and needed to go to bed. Mr. Vandervort left the room. Ms. Knutson did 

not complain about this incident to the school district administration. She was worried 

about rumors because she and Mr. Vandervort both had spouses. 

3 

No. 32540-7-III 


Knutson v. Wenatchee Sch. Dist. 


During work and in his office, Mr. Vandervort spoke to Ms. Knutson about an 

HBO program, Cathouse. The conversation occurred between 2005 and 2007. Ms. 

Knutson lacked knowledge of the program. In her deposition, she recalled few of the 

details of this conversation. Mr. Vandervort explained that the show centered on the 

Bunny Ranch, a house ofprostitution, and he stated that his favorite girls on the show 

were Sunset and Summer. He lightheartedly told her that being the owner of the Bunny 

Ranch would be a perfect job. In her deposition, Ms. Knutson testified she was not 

offended by the conversation. However, in an affidavit, Ms. Knutson claimed that she 

considered the remarks odd and that she was uncomfortable with the conversation. She 

did not report the conversation to the school district administration. Ms. Knutson likely 

mentioned the conversation to some female coworkers. 

Ms. Knutson separated from her ex-husband in May 2007, and she informed Mr. 

Vandervort of the separation. Shortly after the separation, Mr. Vandervort telephoned 

Ms. Knutson to ask her how she was doing. During this conservation, Mr. Vandervort 

shared information that he had had an affair with another woman during the time that he 

and his former wife had experienced marital difficulties. Ms. Knutson did not report this 

telephone call to the school district administration. 

On multiple occasions, Mr. Vandervort invited Ms. Knutson to dance at the 

district office. Mr. Vandervort taught line dancing at the school district for employees' 

4 

No. 32540-7-III 


Knutson v. Wenatchee Sch. Dist. 


recreation. Ms. Knutson knew line dancing, and Mr. Vandervort asked her to help teach. 

While in his school district office, Mr. Vandervort asked Ms. Knutson a couple times if 

she could teach him some line dancing moves. She declined. When she did not appear at 

the classes, Mr. Vandervort emphasized that she should attend the class. Ms. Knutson 

did not report the conversations about line dancing because she was office friends with 

Mr. Vandervort. During her deposition, she admitted that she did not file a complaint 

because she had nothing to complain about. 

On one occasion in 2006 or 2007, Ms. Knutson and her sister saw Mr. Vandervort 

at Costco. Ms. Knutson noticed Mr. Vandervort staring at her breasts. Ms. Knutson's 

sister later stated that Mr. Vandervort could not get his eyes "'off your boobs.'" CP at 

144. Ms. Knutson did not report the incident to anyone at the school district before her 

employment ended. She stated she had no reason to report the incident. 

On several occasions, Mr. Vandervort told Ms. Knutson that ifshe wished to talk 

to someone, she could speak with him at any time. He offered to listen as a work friend. 

As a genuine expression of friendship, Mr. Vandervort told Ms. Knutson, '" If there's 

anything you need, I'd do anything for you.'" CP at 155. Mr. Vandervort recorded 

music CDs (compact disks) for Ms. Knutson. Ms. Knutson did not know ifhe recorded 

CDs for others. Ms. Knutson stated that she viewed this action as a kind gesture and did 

not complain about this conduct. 

5 

No. 32540-7-III 

Knutson v. Wenatchee Sch. Dist. 

In March 2008, Mr. Vandervort offered to loan Ms. Knutson money to complete a 

Spanish class needed to obtain a bachelor's degree. Ms. Knutson considered the offer 

inappropriate and did not want to be indebted to her supervisor. She was not offended, 

but she was uncomfortable and told him so. In the September 2008 performance 

evaluation, Mr. Vandervort stated that Ms. Knutson needed to complete her bachelor's 

degree. When Ms. Knutson objected to this entry in her performance evaluation, Mr. 

Vandervort reminded her that he had offered to pay for the schooling. 

In June 2008, Ms. Knutson came to the school district office on a day off. She 

wore shorts and a tank top with a scooped neckline. Mr. Vandervort later informed her 

that another employee had complained about her dress. Ms. Knutson expressed 

frustration to Mr. Vandervort that the complaining party did not know the full 

circumstances. Mr. Vandervort rejoined, '" I don't know. I kinda like your cleavage.'" 

CP at 148. Ms. Knutson considered the remark to be a light-hearted statement. She was 

not offended because the two were workplace friends who joked. Mr. Vandervort denied 

uttering the remark. 

As a result of the June 2008 complaint about Ms. Knutson's dress, Mr. 

Vandervort's September 2008 performance evaluation of Ms. Knutson included the 

remark, '" As a role model, you set the standard for appropriate dress.'" CP at 150. Ms. 

Knutson asked Mr. Vandervort ifhe had placed that comment in her evaluation because 

6 

No. 32540-7-III 


Knutson v. Wenatchee Sch. Dist. 


ofthe June incident, and he said yes. CP at 151. Ms. Knutson had never before received 

complaints about her dress. Ms. Knutson asked Mr. Vandervort ifhe had put the remark 

in the performance evaluation so no one could complain anymore. Mr. Vandervort 

laughed and said in a flirtatious manner, "'Well.'" CP at 153. Ms. Knutson did not 

complain about this incident to the administration. The overall performance evaluation 

given by Mr. Vandervort in September 2008 was positive. 

B. Ms. Knutson's and Mr. Vandervort's post-October 2008 working relationship 

Ms. Knutson divorced her husband. She testified that she began dating Russ 

Waterman, a school district employee in October 2008. Around that time, Mr. 

Vandervort called Ms. Knutson into his office and said he had heard she was dating Mr. 

Waterman. Mr. Vandervort asked ifMs. Knutson thought the dating relationship was a 

smart idea, to which Ms. Knutson replied, '" What does that mean? Do you know 

something I should know?''' CP at 126. Mr. Vandervort looked at her and performed a 

familiar gesture of extending his hand and shaking his head. Ms. Knutson asked, '" If 

you know something, tell me.'" CP at 126. Mr. Vandervort just looked at Ms. Knutson. 

Mr. Knutson said, '" If that's all, I'm going to go." CP at 126. She left Mr. Vandervort's 

office. 

According to Ms. Knutson, the hostile work environment imposed by Mr. 

Vandervort started after the October 2008 interaction about Mr. Waterman. In her 

7 

No. 32540-7-II1 

Knutson v. Wenatchee Sch. Dist. 

deposition, she stated the relationship "changed 100 percent." CP at 161. The rapport 

changed from friendly to cold and aloof, and Ms. Knutson stated that she received a cold 

shoulder thereafter. Mr. Vandervort refused to answer Ms. Knutson's job questions, 

particularly queries about the budget. After October 2008, Ms. Knutson did not consider 

herself friends with Mr. Vandervort. He was no longer flirtatious with her. Mr. 

Vandervort stopped sitting with her at monthly leadership meetings. Previously, the two 

always sat together. Ms. Knutson did not ask Mr. Vandervort why he no longer sat next 

to her, since the two no longer spoke to each other. 

A series of three consecutive meetings on December 16, 2008 punctuated the 

souring relationship between Ms. Knutson and Mr. Vandervort. The first meeting 

convened in Mr. Vandervort's office. Attending the meeting were Ms. Knutson, Mr. 

Vandervort, Mr. Cole, and Lisa Turner, the district's human resources manager. Mr. 

Vandervort informed Ms. Knutson of the meeting and indicated the subject would be 

staffing issues. 

During the first December 16 meeting, Mr. Vandervort "yelled" at Ms. Knutson 

and directed her not to call the out-of-school program "school age care." CP at Ill. He 

insisted on the title "daycare." CP at 96. He informed Ms. Knutson that her calling the 

program "school age care" caused confusion. CP at 99. Mr. Vandervort knew that Ms. 

Knutson wanted the program to be educational in nature, but he relegated the program to 

8 

No. 32540·7·II1 

Knutson v. Wenatchee Sch. Dist. 

day care. Ms. Knutson does not dispute that Mr. Vandervort held authority to direct her 

to call the program a "daycare" program. CP at 98. She notes, however, that all ofthe 

school district written handbooks used the term "school age care." CP at 99. 

During this first December meeting, Mr. Vandervort also scolded Ms. Knutson for 

missing a school district leadership meeting and informed her that she must attend all 

leadership meetings. Mr. Cole reiterated the importance that Ms. Knutson attend 

leadership meetings. Ms. Knutson became upset, but not angry. Ms. Knutson felt the 

directions to attend leadership meetings were not fair because Mr. Vandervort had 

previously told her that program directors were no longer to attend the meetings. Ms. 

Knutson did not tell Mr. Cole during this meeting that Mr. Vandervort had said directors 

should not attend. The parties resolved the issue with Ms. Knutson agreeing to attend the 

meetings. 

During this meeting, Mr. Vandervort directed Ms. Knutson to keep "regular work 

hours"; however, he did not define "regular hours." CP at 97, 106. Ms. Knutson came to 

work later on Mondays so she could take her son to school, but she stayed at work later 

the first workday of the week. Mr. Cole said he would not nitpick Ms. Knutson's work 

hours. There was no directive at the end ofthe meeting that Ms. Knutson would work 

any certain hours. Mr. Vandervort did not object to Ms. Knutson's coming to work later 

on Mondays. 

9 

No. 32540-7-III 

Knutson v. Wenatchee Sch. Dist. 

Ms. Knutson informed Mr. Cole that she lacked an office and work computer at 

the school district administration building. Mr. Cole expressed shock that Ms. Knutson 

had no office in the district building. Ms. Knutson explained to Mr. Cole and others that 

the lack of an office and computer required her to continually travel between home and 

school. Ms. Knutson had previously asked Mr. Vandervort for office space. 

During this meeting, Mr. Cole told Ms. Knutson that an employee, Krissy Quilter, 

did not wish to receive text messages. Ms. Knutson agreed to send no texts to Ms. 

Quilter. Ms. Turner and Mr. Cole left Mr. Vandervort's office, but Mr. Vandervort and 

Ms. Knutson continued to talk. Ms. Knutson referred to this short interaction after Ms. 

Turner and Mr. Cole left as the second meeting of December 16. 

During this second meeting, Ms. Knutson asked why Mr. Vandervort told her that 

program directors were no longer desired at leadership meetings. Ms. Knutson asked Mr. 

Vandervort that ifhe intended to change the rules, he let her know what to expect. In 

reply, Mr. Vandervort yelled at Ms. Knutson, stating, "'What are you talking about? I 

did not say that. '" CP at 113, 116. Ms. Knutson reminded Mr. Vandervort ofthe 

meeting when he told her that directors should no longer attend leadership meetings. He 

then remarked, '" I can't believe you didn't throw me under the bus. I forgot about 

telling you that.'" CP at 116-17. Ms. Knutson also reminded Mr. Vandervort that he had 

approved her flexible work schedule because of her different work sites. 

10 

No. 32540-7-III 

Knutson v. Wenatchee Sch. Dist. 

At the conclusion of this second meeting, Ms. Knutson walked directly to Mr. 

Cole's office and complained to him about Mr. Vandervort's behavior. Ms. Turner was 

present during this third meeting. Ms. Knutson considered this the third December 16 

meeting. Ms. Knutson told Mr. Cole that she wanted the hostile treatment from Mr. 

Vandervort stopped. During this meeting, Ms. Knutson complained to Mr. Cole about a 

series of actions by Mr. Vandervort. Ms. Knutson told Mr. Cole that Mr. Vandervort 

offered to pay for her Spanish class and meet her off campus to study. She complained 

that Mr. Vandervort mentioned in her performance evaluation that she lacked a college 

degree. Ms. Knutson also complained about Mr. Vandervort talking with her about 

inappropriate personal subjects. 

During this third December 16 meeting, Ms. Knutson also explained to Mr. Cole 

that Mr. Vandervort grew angry with her once he learned she had a boyfriend and that is 

when the hostile treatment commenced, including Mr. Vandervort yelling at her in 

meetings and ignoring her in the hallways. During the meeting, Ms. Knutson asked for a 

different supervisor. Mr. Cole asked ifMs. Knutson wished to file a formal complaint. 

She responded that she did not want to lose her job, she just wanted Mr. Vandervort's 

behavior to stop. Mr. Cole said okay and the meeting ended. During the last December 

16 meeting, or a later meeting, Ms. Turner told Ms. Knutson, '" If you want to swim in 

the swamp, you better make nice with the alligators.'" CP at 276. 

11 

No. 32540-7-111 


Knutson v. Wenatchee Sch. Dist. 


The hostile work atmosphere continued after the December 16,2008 meetings. 

The silent treatment in the hallways continued. On one occasion, Mr. Vandervort walked 

by Ms. Knutson at the school district front desk and Ms. Knutson greeted Mr. Vandervort 

but he just walked by. Ms. Knutson believed Mr. Vandervort ignored her on other 

occasions, but she could not recall the details. 

In February 2009, Ms. Knutson was called into Ms. Turner's office to discuss 

staffing and budget reductions. Mr. Vandervort had previously advised Ms. Knutson of a 

need to reduce her budget by $50,000. During the meeting, Mr. Vandervort asked Ms. 

Knutson for a report he claimed he asked her to write. According to Ms. Knutson, Mr. 

Vandervort had not asked for any report, only ways to cut the budget. Ms. Knutson had 

already put in writing how to cut the budget by $50,000. Mr. Vandervort looked at Ms. 

Knutson, threw his arms into the air, raised his voice, looked at Ms. Turner, and said, 

'"' See! I get nothing! I just get nothing!'" CP at 124, 172. 

Mr. Vandervort concedes that he may have raised his voice due to frustration 

during the February 2009 meeting with Ms. Turner and Ms. Knutson. Mr. Vandervort 

claims he would have used the same tone of voice if he had addressed a man under the 

same circumstances. He purports to be direct with all employees and claims that on the 

rare occasions that he raises his voice, his tone is directed more at men than women. 

Chet Harum, executive director ofstudent and support services, and Ms. Turner testified 

12 

No. 32540-7-II1 


Knutson v. Wenatchee Sch. Dist. 


that each has heard Mr. Vandervort raise his voice with both male and female employees. 

Exhibit 9 to Ms. Knutson~s deposition is a three-page e-mail string between Ms. 

Knutson and Mr. Vandervort~ which begins on April24~ 2009. The school district 

presented the content of the e-mail to contradict Ms. Knutson~s claim that a hostile work 

environment began in October 2008. In an April 27, 2009, 6:45 a.m. e-mail.Ms. 

Knutson wrote to Mr. Vandervort about his visiting a day care program: 

"Good morning. I can do any day or time. I'd love for you to come out. It 

has been a long time and would be fun. Your schedule is probably harder 

to find time, so just let me know even if last minute the time opens up for 

you." ... "Should I make a CD for road trip? Hahah." 

CP at 188-89. 

In June 2009, Mr. Vandervort asked Ms. Knutson to telephone Natalie, a person 

who did not work for the school district but who wanted to conduct a summer camp at a 

school district facility. Mr. Vandervort directed Ms. Knutson to tell Natalie no. CP at 

183. Before calling, Ms. Knutson wanted to speak with the school district licensor to 

discuss limitations on outside groups using district facilities. Mr. Vandervort called Ms. 

Knutson into his office the following day, upset that she had not yet called Natalie. He 

yelled at Ms. Knutson, '" Why the hell haven't you called her or called her back yet?'" 

CP at 185. He accused Ms. Knutson of insubordination. According to Mr. Vandervort, 

his reaction to her was not the result ofher being a woman. 

13 
No. 32540-7-III 


Knutson v. Wenatchee Sch. Dist. 


In July or August 2009, Mr. Cole told Ms. Knutson that Mr. Harum would be her 

new supervisor. Ms. Knutson stated that Mr. Harum did not create a hostile work 

environment toward her. Mr. Vandervort's last performance evaluation of Ms. Knutson 

occurred in September 2008, which preceded the alleged hostile work environment. 

In September or October 2009, Mr. Vandervort and Ms. Knutson passed on the 

stairs in the Wenatchee School District administration building. Ms. Knutson stopped 

Mr. Vandervort. She wanted to rebuild the relationship. Although Mr. Vandervort was 

no longer her supervisor, Ms. Knutson asked if she had made progress in her work 

performance. Mr. Vandervort responded that he had attempted to promote her to a 

director but the promotion might not be beneficial. Ms. Knutson asked Mr. Vandervort 

to explain. He stated that he was on the way to a cabinet meeting and could not talk then. 

Ms. Knutson met with Mr. Harum and Mr. Vandervort in October 2010 to discuss 

the budget. Mr. Vandervort raised his voice and stated that he was not getting 

information he wanted on the budget. Ms. Knutson mentioned some ideas for the budget 

and offered suggestions to charge parents for summer camps. She mentioned missing 

money from one of her accounts. Ms. Knutson said that Mr. Vandervort's finance 

department failed to provide her information needed for the budget. Mr. Vandervort 

snickered and rolled his eyes at her. Mr. Vandervort became angry and expressed 

displeasure about Ms. Knutson's handling of the budget process. Ms. Knutson felt 

14 

No. 32540-7-111 


Knutson v. Wenatchee Sch. Dist. 


humiliated. 

Mr. Vandervort left the meeting, and Ms. Knutson sat alone with Mr. Harum. She 

then complained about Mr. Vandervort's behavior. She told Mr. Harum that she had 

spoken with Mr. Cole and Ms. Turner and had hoped the hostile work environment would 

end with a new supervisor. She was upset that the antagonistic environment continued. 

Mr. Harum said that he observed the hostility and that he would speak with Mr. 

Vandervort to end the hostility. 

Ms. Knutson complains that after her reporting of Mr. Vandervort to Mr. Cole, the 

school district, primarily Ms. Turner and Mr. Vandervort, repeatedly wrote negative 

comments about her job performance. According to her, the school district also refused 

to provide information to her regarding grant money that funded her program, making it 

impossible for her to create budget reports. She also believes that the school district 

refused to respond to her e-mails expressing concerns over responsibilities and 

expectations being placed on her without adequate experience or training. In February 

2011, the school district placed Ms. Knutson on a personal improvement plan, a version 

of formal discipline. 

C. Mr. Vandervort's treatment ofother female employees 

In response to the school district's summary judgment motion, three former female 

employees-Melissa Campbell, Sandra Mueller, and Trisha Johnson-signed affidavits 

15 

No. 32540-7-III 


Knutson v. Wenatchee Sch. Dist. 


critical ofMr. Vandervort and the school district's human resources department. Ms. 

Campbell worked at the school district from 2005 to 2010. She first served as the 

substitute teacher coordinator in the human resources department. By 2007, Ms. 

Campbell worked as substitute teacher coordinatorlhuman resources secretary under the 

supervision of Ms. Turner and Mr. Cole. 

According to Ms. Campbell, Mr. Vandervort worked in the same office building 

as the human resources staff. Thirty to 40 females and 3 males worked in the school 

district administration office. According to Ms. Campbell, Mr. Vandervort tried to 

dominate the office and disliked being confronted or questioned. According to Ms. 

Campbell, Mr. Vandervort responded to unpleasant questions with the "f' word. 

CP at 285. Because of his frequent "WTF [what the f***]" looks, Mr. Harum drew a 

caricature of him for the 2008 superintendent's cabinet. CP at 285. Mr. Vandervort and 

Kevin Bredesen, an earlier human resources director, butted heads and screamed at each 

other. 

Ms. Campbell testified that Mr. Vandervort was fine to work with and be around 

as long as you were on his "good side." CP at 284. If one "got on his bad side," he grew 

cold and hostile. CP at 285. Mr. Vandervort enjoyed causing discord between finance 

department and human resources department personnel. He initiated marshmallow fights 

with marshmallow guns and tossed rubber balls or screaming monkeys across a divider 

16 

No. 32540-7-111 


Knutson v. Wenatchee Sch. Dist. 


between the finance and human resource departments. According to Ms. Campbell, a 

running joke in the school district office was that one needed to treat Mr. Vandervort like 

a weapon and'" point him away from you.'" CP at 285. 

In her affidavit, Ms. Campbell related a conversation she had had with Mr. 

Vandervort in which he spoke about a finance department employee, Trisha Johnson. 

i 

! The school district had terminated Ms. Johnson's employment purportedly because of 

,

! 

I 

budget constraints. Mr. Vandervort told Ms. Campbell that he would wait a few months 

and then re-post the job with different qualifications so that Ms. Johnson would lack the i 

I 

1 qualifications and Linda Honeywell, another employee, would fill the opening. 	 ! 

l 

According to Ms. Campbell, Mr. Vandervort performed Ms. Knutson's budget 	 , 

r tasks for the day care program. After Ms. Knutson began to date Mr. Waterman, Mr. 	 ! 

f 

; 

I 

Vandervort ended this assistance. One year, Ms. Campbell wore a "Kiss Me I'm Irish" 	 l

j.

, 

I 

~, 

shirt on St. Patrick's Day. On that day, without warning, Mr. Vandervort kissed Ms. 

f 

i Campbell full on the lips in front of other staff members. Ms. Campbell spoke to Mr. f 

Cole about the kiss in the presence of Ms. Turner. Mr. Cole appeared shocked, grew 	 1, 

f 

I 

J pale, and asked Ms. Campbell ifshe wanted him to speak with Mr. Vandervort. Ms. 

Campbell said no. CP at 286. Ms. Turner laughed. Ms. Campbell wore her shirt again 

t 

I the next St. Patrick's Day, and Mr. Vandervort kissed her again. She never wore the shirt 	 J

, 

again. 

17 
No. 32540-7-II1 

Knutson v. Wenatchee Sch. Dist. 

The second female former employee who signed an affidavit, Ms. Mueller, 

worked at the school district in the human resources department from 2004 until 2012. 

She described Mr. Vandervort as unprofessional and disrespectful to staff, including Ms. 

Knutson. According to Ms. Mueller, Mr. Vandervort threw personnel requisitions in the 

trash as people submitted them. On one occasion around 2010, Mr. Vandervort 

confronted Ms. Mueller and asked why she limited interaction with him. Ms. Mueller 

stated she did not like how he treated others. Mr. Vandervort asked her if she referred to 

his treatment of Ms. Knutson. The queries led to a one-hour conversation about Mr. 

Vandervort's disruption of others' work. Ms. Mueller told Mr. Vandervort that she had 

issues with how he treated Ms. Knutson but that he also mistreated others. After this 

conversation, Ms. Mueller's performance evaluations lowered. Ms. Mueller complained 

to Ms. Turner about this and said, '''You are documenting me out ofthisjob[,] aren't 

you.'" CP at 292. Ms. Turner replied, '" No, maybe you are no longer suited for this 

position.'" CP at 292. Ms. Turner told her that maybe she should start looking for a new 

job. Shortly thereafter, Ms. Mueller found a new job outside the school district. 

The third female former employee who signed an affidavit was Trisha Johnson, 

who worked at the school district from March 2004 to February 2006 as Mr. 

Vandervort's assistant and as an assistant accountant. According to Ms. Johnson, the 

atmosphere in the school district office was cliquish. Mr. Vandervort was initially 

18 

No. 32540-7-III 


Knutson v. Wenatchee Sch. Dist. 


friendly to Ms. Johnson but eventually excluded her from office activities. Mr. 

Vandervort criticized her job performance but was vague in his criticism. Ms. Johnson 

noticed Mr. Vandervort giving female employees back rubs and receiving back rubs from 

the female employees. 

In February 2006, the school district terminated Ms. Johnson's employment. Mr. 

Vandervort told Ms. Johnson that the school district had to eliminate the finance assistant 

position that another employee occupied due to budget cuts and because there was not 

enough work. Because the other employee had seniority, that employee received Ms. 

Johnson's job. One year later, the employee who took Ms. Johnson's job as assistant 

accountant left and the position was posted. Ms. Johnson submitted an application for the 

position but received no call for an interview. 

D. The disputed budget shortfall 0/2010-2011 

1. The district's claims 

According to Mr. Vandervort and school district Superintendent Brian PIones, as a 

result ofthe 2008 national recession and decreased state funding, the school district 

initiated cost saving measures. During the 2009-20 I 0 school year, the school district did 

not replace 20 retired certified staff positions. During that year, the school district 

terminated the employment of and eliminated the positions of assistant director of 

maintenance and the school age care billing clerk. 

19 

No. 32540-7-III 


Knutson v. Wenatchee Sch. Dist. 


Even after the cuts of2009-2010, the programs lost money. By the spring of 

2011, state funding for the Wenatchee School District had decreased in the sum of 

$3 million and further decreases were anticipated. In March 2011, the school district 

contemplated further reductions in staff and cuts in the day care program. The school 

district board of directors directed the school district's administrative cabinet to consider 

cuts to self-sufficient programs that incurred losses. The school age care program was 

such a program. 

The administrative cabinet consisted of Mr. Flones and several high-ranking 

administrators, presumably including Mr. Vandervort. Mr. Vandervort provided budget 

information to assist the cabinet and the board. The cabinet recommended elimination of 

Ms. Knutson's position, in addition to other budget cuts, including not replacing 10 

certified staff, a reduction in force of 33 1 classified staff, and the elimination of a part of 

the school age care program. The board accepted the cabinet's recommendation and 

terminated Ms. Knutson's position along with the others described above. The district 

states that the decision to terminate Ms. Knutson was budget driven and had nothing to 

do with her complaints concerning Mr. Vandervort. 

2. Ms. Knutson's claims 

I This number is 34 in one administrator's declaration but 33 in the district's 

interrogatory answer. 

20 
No. 32540-7-111 


Knutson v. Wenatchee Sch. Dist. 


School district financial records show that the district finished the 2008-2009 

fiscal year with $2,199,024.81 in excess revenue. The school district finished the 2009­

2010 fiscal year with $1,281,589.17 in excess revenue, finished the 2010-2011 fiscal year 

with $826,782.93 in excess revenue, and finished the 2011-2012 fiscal year with 

$1,046,705.03 in excess revenue. During those years, the school district increased 

expenditures. 

Ofthe 33 classified staffthat the school district laid off in 2011, the school district 

rehired 24. Of the 9 not rehired, 4 retired or quit. 

Similar to the 24 who were rehired, Ms. Knutson also attempted to become reemployed with the school district. On October 7, 2011, the school district posted an open 

position for an early learning coordinator at the Westside Early Learning Center. Ms. 

Knutson applied for the job but was not afforded an interview. According to Ms. Turner, 

no one was granted an interview or hired for the position. The school district mistakenly 

believed it needed a licensed early learning supervisor to lead the preschool care 

program, but later discovered otherwise. 

E. Procedure 

Ms. Knutson ultimately ftled a lawsuit against the Wenatchee School District on 

October 30, 2012, alleging she was subject to a hostile work environment and terminated 

from employment because of her gender in violation ofRCW 49.60.180. She claimed 

21 

No. 32540-7-111 


Knutson v. Wenatchee Sch. Dist. 


that the school district retaliated against her after she engaged in statutorily protected 

activity in violation ofRCW 49.60.210 and that the school district violated her 

constitutional due process rights when firing her. 

The school district filed a motion for summary judgment to dismiss all three 

claims. The trial court granted the motion and dismissed all claims. The trial court 

dismissed Ms. Knutson's hostile work environment claim by excluding from 

consideration events occurring prior to the statute of limitations running and by finding 

the conduct occurring before and after the statute of limitations to be "not the same 

course of behavior." CP at 356. The trial court concluded that Ms. Knutson failed to 

support her retaliation claim since there was no question of fact as to a causal link 

between Mr. Vandervort's behavior and the elimination ofMs. Knutson's position. 

ANALYSIS 

A. 	 Whether Mr. Vandervort's conduct that occurred outside the statute oflimitations 

period may be considered when assessing Ms. Knutson's claim for a hostile work 

environment 

Initially, we must address what acts this court may consider when determining 

whether the trial court correctly granted summary judgment to the school district on Ms. 

Knutson's claim of a hostile work environment. The school district argues that the 

purported sexually motivated remarks and conduct ofMr. Vandervort that occurred 

before the relationship between Mr. Vandervort and Ms. Knutson changed in October 

22 

No. 32540-7-III 

Knutson v. Wenatchee Sch. Dist. 

2008 cannot be considered because the comments and behavior occurred outside the 

statute of limitations. Ms. Knutson argues that Mr. Vandervort's remarks and actions 

before October 2008 may be considered because the comments and behavior were part of 

a pattern of discrimination that constituted a hostile work environment. 

The trial court determined as a matter of law that the relevant acts that could be 

considered in Ms. Knutson's hostile work environment claim were only those that 

occurred within the statute of limitations period. Since Ms. Knutson filed suit on 

October 30,2012, acts occurring before October 30,2009 were outside the statute of 

limitations. As detailed above, Ms. Knutson claimed that she was subject to flirtatious 

conduct or unwelcome advances until the Waterman conversation of October 2008. 

After that date, her relationship with Mr. Vandervort changed and Mr. Vandervort never 

again communicated with her in a flirtatious manner. After October 2008, he grew cold 

and aloof and yelled at Ms. Knutson for her job performance. The trial court excluded 

actions that occurred outside the statute of limitations since they were of a different 

character than those inside the statute of limitations. 

Washington's Law Against Discrimination (WLAD), chapter 49.60 RCW, 

prohibits employment discrimination based on sex. RCW 49.60.010, .030, .180. 

RCW 49.60.l80(3) makes it an unfair practice for an employer "[t]o discriminate against 

any person in compensation or in other terms or conditions of employment because of ... 

23 

No. 32540-7-111 


Knutson v. Wenatchee Sch. Dist. 


sex." RCW 49.60.030(2) authorizes a person discriminated against in violation of 

WLAD to bring a civil action. Two types of sex discrimination claims are recognizedthe quid pro quo sexual harassment claim, where the employer requires sexual 

consideration from the employee for job benefits, and the hostile work environment 

claim. Antonius v. King County, 153 Wn.2d 256,261, 103 P.3d 729 (2004). Ms. 

Knutson asserts a hostile work environment. The four elements of a prima facie hostile 

work environment claim are (1) the harassment was unwelcome, (2) the harassment was 

because of sex, (3) the harassment affected the terms and conditions of employment, and 

(4) the harassment is imputable to the employer. Glasgow v. Ga.-Pac. Corp., 103 Wn.2d 

401,406-07,693 P.2d 708 (1985). 

The WLAD does not contain its own limitations period. Discrimination claims 

must be brought within three years under the general three-year statute of limitations for 

personal injury actions. RCW 4.16.080(2); Antonius, 153 Wn.2d at 261-62. An issue 

that arises in these cases is whether discriminatory or hostile conduct of the defendant or 

the defendant's employee that occurs outside the limitation period may be included in the 

calculus of a hostile work environment if some impermissible conduct occurs inside the 

limitation period. 

For example, in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 122 

S. Ct. 2061, 153 L. Ed. 2d 106 (2002), the United States Supreme Court addressed this 

24 

No. 32540-7-II1 


Knutson v. Wenatchee Sch. Dist. 


issue in the context of a charge of discrimination and retaliation with the Equal 

Employment Opportunity Commission under federal law. The plaintiff claimed, among 

other things, a racially hostile work environment during his employment. Id. at 104-05. 

The employer argued that it was entitled to partial summary judgment as to acts occurring 

before the relevant 300-day limitations period for filing such charges under Title VII of 

the 1964 Civil Rights Act, 42 U.S.C. §§ 2000e to 2000e-17, that precludes employment 

discrimination on account of sex. Morgan, 536 U.S. at 106. The Court distinguished 

those cases involving discrete retaliatory or discriminatory acts, such as termination, 

failure to promote, denial of transfer, or refusal to hire, from cases involving claims of a 

hostile work environment. For discrete acts, the Court noted that the limitations period 

runs from the act itself, and if the limitations period has run, a discrete act is not 

actionable even ifit relates to acts alleged in timely filed charges. Id. at 113. However, 

the Court concluded that "[h ]ostile work environment claims are different in kind from 

discrete acts[ and t]heir very nature involves repeated conduct." Id. at 115. 

The Court stated that an '" unlawful employment practice' therefore cannot be 

said to occur on any particular day. It occurs over a series of days or perhaps years and, 

in direct contrast to discrete acts, a single act of harassment may not be actionable on its 

own. Such claims are based on the cumulative effect of individual acts." Id. (citation 

omitted). The Court explained that a hostile work environment claim is composed of a 

25 

No. 32540-7-II1 


Knutson v. Wenatchee Sch. Dist. 


series of separate acts that collectively constitute one'" unlawful employment practice.'" 

Id. at 117 (quoting 42 U.S.C. § 2000e-5(e)(l)). 

Because Title VII's filing provision requires only that the charge be filed within a 

certain period after the unlawful practice occurred, the Court reasoned it does not matter, 

for purposes of the statute, that some of the component acts of the hostile work 

environment fall outside the statutory time period. Id. The Court 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." Id. Nevertheless, the acts about which an employee complains must be part of 

the "same actionable hostile work environment practice." Id. at 120. 

The Morgan Court rejected the rule applied by several of the federal circuits that a 

plaintiff could not base a suit on acts occurring outside the statute of limitations period 

unless it would have been unreasonable to expect the plaintiff to sue before the statute 

ran. It did so precisely because the entire hostile work environment claim encompasses a 

single unlawful employment practice. Id. at 117. Thus, it does not matter that a plaintiff 

knows or should know at the time discriminatory acts occur outside the statute of 

limitations period that the acts are actionable. Id. at 118. The Court explained that its 

holding did not leave employers defenseless because if an employee unduly delayed suit 

an employer could assert equitable defenses such as waiver and unreasonable delay, as 

26 

No. 32540-7-III 

Knutson v. Wenatchee Sch. Dist. 

well as laches if the employer could establish lack of diligence on plaintiffs part and 

prejudice to the employer as a result of the delay. Id. at 121. 

Thus, under Morgan, a court's task is to determine whether the acts about which 

an employee complains are part ofthe "same actionable hostile work environment 

practice" and, if so, whether any act falls within the statutory time period. Id. at 120. 

The acts must have some relationship to each other to constitute part of the same hostile 

work environment claim, and if there is no relation, or if "for some other reason, such as 

certain intervening action by the employer," the act is "no longer part of the same hostile 

environment claim, then the employee cannot recover for the previous acts" as part of 

one hostile work environment claim. Id. at 118. 

In Antonius, the Washington Supreme Court adopted the Morgan analysis for 

purposes of suits under chapter 49.60 RCW. There, Rose Antonius began working for 

King County's Department of Adult and Juvenile Detention as a bookkeeper in 1983. 

Antonius, 153 Wn.2d at 259. In 1985, she was promoted to a position as a corrections 

officer and worked at the Seattle jail, where she supervised male inmates. She alleged 

that until she was transferred to an all-female corrections facility in February 1996, she 

was frequently subjected to sexually derogatory comments by inmates, coworkers, and 

supervisors, and was exposed to sexually explicit inmate conduct. Id. at 259-60. She 

often encountered pornographic materials, including magazines and videos, in inmate 

27 

No. 32540-7-III 

Knutson v. Wenatchee Sch. Dist. 

areas, as well as pornographic materials left at correctional officers' workstations. At the 

all-female facility, she did not encounter this discriminatory conduct. 

In December 1996, Ms. Antonius was promoted to sergeant and reassigned to the 

Seattle jail. In March 1997, she was transferred to the newly opened Regional Justice 

Center correctional facility in Kent. Id. at 259. With her return to the Seattle jail and 

continuing in her assignment in Kent, Ms. Antonius saw pornographic materials in 

inmates' residential areas and at workstations, and was exposed to sexually explicit 

videos. She also was subjected to derogatory comments toward herself and other 

females. She did not complain, believing that it would not be productive and that it would 

subject her to ridicule and possible reprisal. Id. 

Ms. Antonius filed suit against King County on December 22, 2000, alleging the 

county violated chapter 49.60 RCW by fostering and maintaining a sex-based hostile 

work environment. The county moved for summary judgment on statute of limitations 

grounds. The county maintained that Ms. Antonius's suit was untimely as to events 

occurring more than three years before the suit was filed and that she did not face sexbased discrimination during the limitations period itself. Id. at 260. Ms. Antonius 

countered by arguing that the hostile work environment was a continuing violation giving 

rise to an equitable exception to the statute of limitations and that she encountered 

discriminatory conduct during the limitations period. The trial court granted partial 

28 

No. 32540-7-II1 

Knutson v. Wenatchee Sch. Dist. 

summary judgment in favor of the county as to acts occurring more than three years 

before Ms. Antonius brought suit. The trial court reasoned that the hiatus in events 

occurring while Ms. Antonius was assigned to the all-female facility precluded 

application of a continuing violation exception to the statute of limitations. Id. 

The court applied the Morgan analysis to determine whether the trial court 

properly granted summary jUdgment to the county as to any acts allegedly occurring 

more than three years before suit was filed. Id. at 270. The trial court had reasoned that 

Ms. Antonius failed to demonstrate sufficient facts to show a systemic continuing 

violation and that she could not show that acts occurring more than three years before suit 

were part of a serial continuing violation because ofthe hiatus in events while she was at 

the Alder Street facility for female inmates. The Court ofAppeals, applying Morgan, 

held that the county was not entitled to summary judgment because Ms. Antonius alleged 

sufficient facts to show an act contributing to the hostile work environment occurred 

within the limitations period. Id. at 265. The county maintained, however, that even 

under Morgan partial summary judgment was proper. Id. 

The Supreme Court remanded the case to the trial court to determine whether 

summary judgment was appropriate under Morgan. Id. at 271. For purposes of remand, 

the Antonius court rejected the county's argument that a gap in the events precluded a 

court, as a matter of law, from considering previous acts to be sufficiently related to any 

29 

No. 32540-7-III 

Knutson v. Wenatchee Sch. Dist. 

acts occurring within the statute of limitations period to constitute a single hostile work 

environment. Id. at 271-72. 

The question before us is whether Mr. Vandervort's conduct before Ms. Knutson's 

relationship with Mr. Waterman constitutes the "same actionable hostile work 

environment practice" as Mr. Vandervort's conduct after knowledge ofMs. Knutson's 

relationship with Mr. Waterman. Morgan, 536 U.S. at 120. The acts must have some 

relationship to each other to constitute part ofthe same hostile work environment claim. 

An intervening action by the employer could preclude the acts from being part of the 

same hostile environment claim. 

Burkhart v. American Railcar Industries, Inc., 603 F.3d 472 (8th Cir. 2010) is 

helpful. There, the plaintiff complained about sexual e-mails and comments from her 

supervisor that occurred outside the statute of limitations and complained about being 

shunned, suspended, and terminated within the statute of limitations. Id. at 474-75. Her 

male supervisor was suspended for five days as a result of sending the sexually charged 

e-mails. After the supervisor's suspension, the plaintiff received no further nonwork email or offensive comments from her supervisor. Id. at 475. She alleged, however, that 

she was'" ostracized'" because of her complaint, that other employees exhibited a 

.. , standoff attitude'" toward her, and that the plant manager no longer called her by a 

nickname. Id. The plaintiff sought to claim that all of the conduct was part ofone hostile 

30 

No. 32540-7-III 

Knutson v. Wenatchee Sch. Dist. 

work environment claim, including the sexual e-mails and comments and the alleged 

retaliatory actions. Id. The court rejected this argument because there was no evidence 

that the sexually explicit e-mailsorcommentscontinued.ld. The alleged retaliatory acts 

could not be considered sexual harassment. Id. at 476. Thus, the plaintiffs sexual 

harassment claim was time barred. Id. 

Similarly, the conduct of Mr. Vandervort before October 2008 is significantly 

different from the conduct thereafter. Mr. Vandervort was no longer engaged in sexual 

banter or flirtations. According to Ms. Knutson, the relationship between her and Mr. 

Vandervort changed 100 percent. Ms. Knutson does not even characterize Mr. 

Vandervort's conduct before October 2008 as hostile. His aloofness may have been 

motivated by an unrequited affection engendered before October 2008, but his conduct 

changed after October 2008. The conduct after October 2008 is retaliatory in nature, 

which Burkhart considers different in nature than the sexual misconduct. Id. We 

conclude that the trial court correctly applied the statute of limitations. 

B. 	 Whether Ms. Knutson presented prima facie evidence ofa hostile work 

environment 

We review a decision to grant summary judgment de novo. Campbell v. State, 

129 Wn. App. 10, 18, 118 P.3d 888 (2005). We will affirm the summary judgment only 

if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence 

31 

No. 32540-7-III 


Knutson v. Wenatchee Sch. Dist. 


of any genuine issues of material fact, entitling the moving party to judgment as matter of 

law. CR 56(c). The court should consider all facts and all reasonable inferences from 

them in the light most favorable to the nonmoving party. Qwest Corp. v. City of 

Bellevue, 161 Wn.2d 353,358, 166 P.3d 667 (2007). 

As noted above, the four elements of a prima facie hostile work environment claim 

are (1) the harassment was unwelcome, (2) the harassment was because of sex, (3) the 

harassment affected the terms and conditions of employment, and (4) the harassment is 

imputable to the employer. Glasgow, 103 Wn.2d at 406-07. The school district does not 

contest the first and fourth elements. We, therefore, limit our inquiry to the second and 

third elements. We also limit our inquiry to alleged hostile acts occurring after October 

2008 because of application of the limitation period. 

1. Because ofsex 

In determining whether harassment occurs "because of sex," the appropriate 

question is, "would the employee have been singled out and caused to suffer the 

harassment ifthe employee had been ofa different sex?" Id. Under Glasgow, gender 

must be the "motivating factor" for the unlawful discrimination. Id.; Payne v. Children's 

Home Soc 'y, 77 Wn. App. 507, 514, 892 P.2d 1102 (1995). "Sex" in this context refers 

to gender, not activity of a sexual nature generally. John Doe v. Dep 't ofTransp. , 85 Wn. 

App. 143, 149,931 P.2d 196 (1997). 

32 
No. 32540-7-III 

Knutson v. Wenatchee Sch. Dist. 

To establish that offensive conduct constituted sex discrimination, the employee 

must show that the conduct was (a) directed at women and (b) motivated by animus 

against them as women. It is not sufficient to show that the employee suffered 

embarrassment, humiliation, or mental anguish arising from nondiscriminatory 

harassment. Payne, 77 Wn. App. at 514. The dispositive question is whether the 

employee would have been subjected to harassment if she had been a man. Id. at 515. 

Adams v. Able Building Supply, Inc., 114 Wn. App. 291, 57 P.3d 280 (2002) is 

instructive. In Adams, the plaintiffs boss was a "rude, boorish, thoroughly obnoxious 

supervisor prone to outrageous temper tantrums." Id. at 293. We evaluated whether his 

frequent vocal and physical outbursts constituted a hostile work environment based on 

Ms. Adams's gender. Id. at 295-96. We upheld the summary judgment dismissal of the 

employee's harassment claim, concluding that the conduct was not sufficiently gender 

specific to support a claim of gender-based harassment. Id. at 297-98. 

In Payne, a female employee sued, claiming that her boss was abusive. She 

alleged that when the boss talked while upset, he would get red in the face. He paced on 

the floor and used a demeaning tone of voice. His means of dealing with most women in 

the office were anger and outbursts. The plaintiff declared, '" It was like you should have 

known what he needed and wanted before he did.'" Payne, 77 Wn. App. at 509. The 

plaintiff claimed that his behavior toward her was unlike his behavior toward men. Id. at 

33 

No. 32540-7-III 


Knutson v. Wenatchee Sch. Dist. 


514. However, there was also testimony that the employer had angry outbursts toward 

male employees and the plaintiff failed to present any affidavits from other employees 

that would show that the boss's behavior was abusive because of sex. ld. at 515. The 

Payne court upheld the summary judgment ofdismissal concluding that the employee did 

not come forward with sufficient evidence to establish that her supervisor's conduct was 

directed at her because ofher gender. ld. 

Ms. Knutson complains that after Mr. Vandervort learned of her relationship with 

Mr. Waterman, Mr. Vandervort became aloof, stopped sitting with her at monthly 

leadership meetings, and blamed Ms. Knutson for failing to attend leadership meetings. 

She contends that Mr. Vandervort also blamed Ms. Knutson for failing to properly 

prepare a budget for the day care programs when Mr. Vandervort and his finance office 

were to blame. Ms. Knutson also cites that Mr. Vandervort yelled at her during meetings, 

ignored her in the hallway, and greeted others in the workroom but ignored her. During a 

meeting, Mr. Vandervort snickered and rolled his eyes at Ms. Knutson. 

Mr. Vandervort's acts after October 2008 are gender neutral because the record 

shows that Mr. Vandervort also treated male employees in the same rude and aloof 

manner he treated Ms. Knutson. Ms. Turner and Mr. Harum testified that Mr. 

Vandervort yelled at both male and female employees. Ms. Knutson testified that Mr. 

Vandervort ignored her in the workroom but he greeted other women, illustrating a lack 

34 

No. 32540-7-II1 


Knutson v. Wenatchee Sch. Dist. 


of animus toward women. Affidavits submitted by Ms. Knutson from other female 

employees undermine Ms. Knutson's hostile work environment claim. According to Ms. 

Campbell, Mr. Vandervort sought to dominate the office and disliked being confronted or 

questioned. Because of his frequent "WTF" look, Mr. Harum drew a caricature of him. 

Mr. Vandervort and Mr. Bredesen butted heads and screamed at each other. According 

to Ms. Campbell, a running joke in the school district office was that one needed to treat 

Mr. Vandervort like a weapon and "point him away from you." Ms. Campbell did not 

claim that Mr. Vandervort singled out only females for this hostile conduct, but gave the 

example of Mr. Vandervort yelling at another male employee. Ms. Mueller testified that 

she avoided Mr. Vandervort because of his boorish behavior toward Ms. Knutson and 

others. She did not testify that Mr. Vandervort engaged in this boorish behavior only 

toward women. 

Ms. Knutson argues that although Mr. Vandervort may have also treated others 

rudely, Mr. Vandervort's rude treatment of her was motivated by a spumed love and thus 

should be considered the result "of sex." According to Ms. Knutson, Mr. Vandervort 

treated her poorly because she violated the implied condition of employment to submit to 

his flirtations. The record however reflects that Mr. Vandervort voluntarily ended the 

flirtations when he learned Ms. Knutson had a boyfriend. 

2. Pervasiveness 

35 
No. 32540-7-111 


Knutson v. Wenatchee Sch. Dist. 


The third element of a hostile work environment requires a pervasive 

discriminatory atmosphere. In deciding whether the relevant conduct was severe or 

pervasive enough to affect the terms and conditions of employment, the court must look 

at the totality ofthe circumstances, including the frequency and severity of the conduct, 

whether it was physically threatening or humiliating or merely an offensive utterance, 

and whether it unreasonably interfered with the employee's work performance. 

Washington v. Boeing Co., 105 Wn. App. 1, 10, 19 P.3d 1041 (2000). "Casual, isolated 

or trivial manifestations of a discriminatory environment do not affect the terms or 

conditions of employment to a sufficiently significant degree to violate the law." Id. In 

addition, the conduct must be objectively and subjectively abusive. Adams, 114 Wn. 

App. at 297. In order to adversely affect employment, the harassing conduct must 

"amount to a change in the terms and conditions of employment." Id. 

As the United States Supreme Court noted in Faragher v. City ofBoca Raton: 

These standards for judging hostility are sufficiently demanding to 

ensure that Title VII does not become a "general civility code." Properly 

applied, they will filter out complaints attacking "the ordinary tribulations 

of the workplace, such as the sporadic use of abusive language, genderrelated jokes, and occasional teasing." We have made it clear that conduct 

must be extreme to amount to a change in the terms and conditions of 

employment. 

524 U.S. 775, 788,118 S. Ct. 2275,141 L. Ed. 2d 662 (1998) (citations omitted) (quoting 

Oncale v. Sundowner Offihore Servs., Inc., 523 U.S. 75, 80, 118 S. Ct. 998, 140 L. Ed. 

36 

No. 32540-7-III 

Knutson v. Wenatchee Sch. Dist. 

2d 201 (1998); BARBARA LINDEMANN & DAVID D. KADUE, SEXUAL HARASSMENT IN 

EMPLOYMENT LAW 175 (1992)). 

The conduct ofMr. Vandervort before October 2008 falls short of creating a 

pervasive discriminatory atmosphere. Ms. Knutson did not find any of the conduct 

offensive, and Ms. Knutson does not assert that the remarks and behavior impacted her 

job performance. However, whether the conduct after October 2008 created a pervasive 

hostile environment is a closer call. 

Ms. Knutson relies on Campbell, 129 Wn. App. at 19, to support her argument that 

she created an issue of fact as to harassment that affected the terms and conditions of her 

employment. She contends Campbell is on point because the plaintiff was mocked and 

yelled at by her superior. But there is much more discriminatory behavior in the 

Campbell case. There, Meredith Campbell worked as the secretary for Eastern 

Washington University's Military Science Department. Id. at 14. Major Leaf Rich and 

Lieutenant Colonel Charles Green had faculty status in the department. Lieutenant 

Colonel Green was the department chair. Id. at 15. Shortly after she began work, Ms. 

Campbell heard Major Rich make derogatory comments about women and the major told 

her to be more subdued and not so direct. Id. 

Lieutenant Green reprimanded Ms. Campbell for asking work study students not 

to remove items from her desk and told her that her'" desk will be raped on a daily basis 

37 

No. 32540-7-111 

Knutson v. Wenatchee Sch. Dist. 

whether you like it or not.'" Id. at 16 (internal quotation marks omitted). He also told 

her that women should not work, men are the leaders of the family, and women should 

obey them. Ms. Campbell found this behavior offensive. Major Rich commented to Ms. 

Campbell that she caught people off guard by walking up and talking to them because she 

was so small and fragile looking. He further told her other women on campus would be 

jealous of her because she was petite and had a good body. The major said she would 

wear out her boyfriend unless she straightened out her personality. 

Major Rich sent an e-mail entitled "Don't Bother Me Button" to Ms. Campbell 

and other members of the department. Id. The e-mail had a video attachment showing a 

log swinging from one side of the screen directly into a woman and forcibly removing 

her. In the body of the e-mail, the major said it was '''time to have a little fun with 

Meredith.'" Id. He also said their superiors had authorized him to outfit their computers 

with this device just for Ms. Campbell. Lieutenant Colonel Green sent an e-mail entitled 

"Our Work Environment" to Ms. Campbell and others in the department. The message 

was in response to the major's earlier e-mail to the department that explained why 

alcohol should be served at work and also contained sexual references. The major sent an 

e-mail entitled "Men and Women Switchboard" toMs. Campbell and others. It implied 

women were impossible to figure out. Ms. Campbell was the only female recipient. Id. 

In a performance evaluation of Ms. Campbell, Major Rich wrote that she was 

38 

No. 32540· 7~III 

Knutson v. Wenatchee Sch. Dist. 

expected to clean up the kitchen and common areas. When she obj ected that these duties 

were not part of her job, Major Rich informed her that these types of chores were 

'" women's work.'" Jd. at 17 (internal quotation marks omitted). Other incidents made 

Ms. Campbell uncomfortable, including being yelled at, mocked, and ignored. On one 

occasion, Ms. Campbell was leaving work when Major Rich blocked her from leaving. 

All of these events occurred during a three·month period. Jd. at 16-17. 

The facts here are not nearly as egregious as those in Campbell. Mr. Vandervort's 

aloofness, rudeness, and occasional yelling at Ms. Knutson undoubtedly caused her 

discomfort, but are more akin to the ordinary tribulations ofthe workplace rather than 

extreme conduct that is actionable. Ms. Knutson's evidence falls short of showing a 

pervasive hostile work environment that affected the terms and conditions of her 

employment. 

In conclusion, Ms. Knutson fails to raise genuine issues of material fact to 

establish two of the four elements of her hostile work environment claim. The trial court 

properly granted the school district's motion for summary judgment dismissal of Ms. 

Knutson's hostile work environment claim. 

C. Whether Ms. Knutson's retaliation claim survives summary judgment 

Finally, Ms. Knutson claims that her termination from employment constitutes 

retaliation in violation ofWLAD. RCW 49.60.210(1) reads: 

39 

No. 32540-7-111 


Knutson v. Wenatchee Sch. Dist. 


It is an unfair practice for any employer, employment agency, labor union, 

or other person to discharge, expel, or otherwise discriminate against any 

person because he or she has opposed any practices forbidden by this 

chapter, or because he or she has filed a charge, testified, or assisted in any 

proceeding under this chapter. 

To establish a violation ofRCW 49.60.210 for retaliatory discharge, an employee 

must show (1) she or he engaged in a statutorily protected opposition activity, (2) an 

adverse employment action was taken, and (3) a causal link between the former and the 

latter. Delahunty v. Cahoon, 66 Wn. App. 829,839,832 P.2d 1378 (1992). Ifthe 

employee fails to establish a prima facie case, then the defendant employer is entitled to 

summary judgment as a matter of law. Hill v. BCTI Income Fund-1, 144 Wn.2d 172, 

181,23 P.3d 440 (2001), overruled on other grounds by McClarty v. Totem Elec., 157 

Wn.2d 214, 137 P.3d 844 (2006). Ifthe employee succeeds in establishing a prima facie 

case, the burden shifts to the employer to produce admissible evidence of a legitimate, 

nonretaliatory reason for its adverse employment action. Renz v. Spokane Eye Clinic, PS, 

114 Wn. App. 611, 618, 60 P.3d 106 (2002). 

1. Primafacie case 

In December 2008, Ms. Knutson reported a hostile work environment to the 

Wenatchee School District's human resources department. She need not prove that her 

complaint of discrimination was valid, only that she reported discrimination. Id. at 619. 

An employee who opposes employment practices reasonably believed to be 

40 
No. 32540-7-III 

Knutson v. Wenatchee Sch. Dist. 

discriminatory is protected by the "opposition clause" whether or not the practice is 

actually discriminatory. Graves v. Dep 't ofGame, 76 Wn. App. 705, 712, 887 P.2d 424 

(1994). Because Ms. Knutson engaged in protected activity, she has satisfied the first 

element of her prima facie retaliation case. 

Ms. Knutson was terminated on June 30, 2011. Ms. Knutson, therefore, has 

satisfied the second element of her prima facie retaliation claim. 

Finally, Ms. Knutson must establish a causal link between Ms. Knutson's 

reporting Mr. Vandervort's conduct and her termination from employment. The school 

district argues that Ms. Knutson cannot make out a prima facie case on this element. In a 

recent decision, the United States Supreme Court held that in a Title VII retaliation suit, 

the plaintiff must show that "but for" her protected action, there would have been no 

adverse employment action. Univ. ofTex. Sw. Med. Ctr. v. Nassar, _U.S._, 133 S. 

Ct. 2517, 2533,1861. Ed. 2d 503 (2013). Washington law imposes a looser standard, 

evaluating whether retaliation was a "substantial factor" motivating the discharge. 

Allison v. Hous. Auth., 118 Wn.2d 79, 95-96,821 P.2d 34 (1991). 

Proximity in time between the protected activity and adverse employment action, 

along with evidence of satisfactory work performance, suggests an improper motive. 

Kahn v. Salerno, 90 Wn. App. 110, 130-31,951 P.2d 321 (1998). Ms. Knutson 

complained repeatedly of Mr. Vandervort's aloofness and shouting at her from October 

41 

No. 32540-7-III 


Knutson v. Wenatchee Sch. Dist. 


2008 until at least October 2010. The school district disciplined Ms. Knutson in February 

2011 and terminated her in June 2011. Issues of material fact exist as to satisfactory 

work performance. Ms. Knutson claims that her inability to provide a budget was due to 

the district's refusal to provide her information and adequate training. Because there is 

close proximity in time between her complaints and the adverse employment action, and 

because there are disputed issues of material fact concerning satisfactory job 

performance, Ms. Knutson has set forth a prima facie case of retaliation. 

2. Pretext 

This court must next apply the McDonnell Douglas burden-shifting scheme to 

determine the question of pretext. Hill, 144 Wn.2d at 182 (citing McDonnell Douglas 

Corp. v. Green, 411 U.S. 792,93 S. Ct. 1817,36 L. Ed. 2d 668 (1973)). The school 

district argues that Ms. Knutson failed to provide a prima facie case but, even if she did, 

it had legitimate grounds for the elimination ofthe director ofday care programs due to 

the budget crisis and the program's lack of self-sufficiency. 

As noted above, the school district board of directors asked the administration to 

review all "self-sufficient" programs that were operating at a deficit to determine ifthey 

could be eliminated to help balance the budget. As early as April or May 2011, Mr. 

Harum advised Ms. Knutson that her program was being scrutinized because it was 

losing money every year. Mr. Harum indicated that the program could no longer justifY 

42 

No. 32540-7-III 

Knutson v. Wenatchee Sch. Dist. 

the position of director. The administrative cabinet made several budget cutting 

recommendations to the board, including the elimination of 33 staff positions, which 

included Ms. Knutson's director of school age care position. 

Once the employer provides evidence of a legitimate nonretaliatory reason for 

eliminating the former employee's position, then the burden shifts back to the former 

employee to show that the employer's reason is actually a pretext for what, in fact, was a 

retaliatory purpose for its adverse employment action. Grimwood v. Univ. ofPuget 

Sound, Inc., 110 Wn.2d 355,364, 753 P.2d 517 (1988); Renz, 114 Wn. App. at 618-19. 

If the former employee fails to make this showing, the employer is entitled to judgment 

as a matter oflaw. Renz, 114 Wn. App. at 619. 

To prove pretext, the employee must produce substantial evidence that the 

justification forwarded by the employer is unworthy of belief. Kuyper v. State, 79 Wn. 

App. 732, 738, 904 P.2d 793 (1995). '" Speculation and belief are insufficient to create a 

fact issue as to pretext. Nor can pretext be established by mere conclusory statements of 

a plaintiff who feels that he has been discriminated against.'" Hines v. Todd Pac. 

Shipyards Corp., 127 Wn. App. 356,372, 112 P.3d 522 (2005) (quoting McKey v. 

Occidental Chern. Corp., 956 F. Supp. 1313, 1319 (S.D. Tex. 1997)). The former 

employee must demonstrate pretext by showing that the employer's articulated reason for 

elimination of her position had no basis in fact or was not the real motivating factor for 

43 

No. 32540-7-III 

Knutson v. Wenatchee Sch. Dist. 

its adverse employment decision. Kuyper, 79 Wn. App. at 738. 

Ms. Knutson attempts to establish that the school district's justification is 

unworthy of belief by showing that the district's revenues exceeded its costs in every 

year, including the year when the district terminated her employment. But for Ms. 

Knutson to actually establish pretext, she must establish that someone in the 

administrative cabinet who knew she had reported suspected retaliation created a false 

budget emergency that caused the elimination of 33 positions, including Ms. Knutson's 

own. The trial court found this incredulous. So do we. The fact that the administrative 

cabinet recommended the elimination of 33 employees is overwhelming evidence that it 

had a bona fide belief that the district faced a budget emergency. Because a reasonable 

trier of fact cannot find the employer's budget emergency justification unworthy of 

belief, summary judgment was appropriate. 

CONCLUSION 

We do not countenance Mr. Vandervort's alleged behavior. However, viewing the 

facts in the light most favorable to Ms. Knutson; Mr. Vandervort's post-October 2008 

actions toward her were not because of sex, nor did those actions sufficiently affect the 

terms or conditions of her employment. Further, despite establishing a prima facie case 

of retaliation, she cannot establish that the school district's justification was pretextual. 

Although one might reasonably conclude that Ms. Knutson was treated unfairly or even 

44 

No. 32540-7-III 


Knutson v. Wenatchee Sch. Dist. 


harshly, under the law her claims are not actionable. We deny any award of costs to the 

school district. 

Affirm. 

A majority of the panel has determined this opinion will not be printed in the 

Washington Appellate Reports, but it will be filed for public record pursuant to RCW 

2.06.040. 

WE CONCUR: 


Fearing, J. 

45