Kevin Calcote, Appellant V. City Of Seattle, Respondent

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
KEVIN M. CALCOTE, )
) No. 77136-1-1
Appellant, )
) DIVISION ONE
V. ) N.)
)
CITY OF SEATTLE, d/b/a Seattle )
Department of Transportation, )
)
UNPUBLISHED OPINION co
Respondent. ) FILED: January 22, 2019
)
SMITH, J. — Kevin Calcote appeals the trial court's summary dismissal of
his claims against the city of Seattle (City) for disparate treatment, retaliation, and
hostile work environment. Because genuine issues of material fact exist as to
Calcote's disparate treatment claim to the extent that it is based on the City's
alleged denial of overtime opportunities in 2015, the trial court erred by
dismissing that claim in its entirety. The trial court also erred by dismissing
Calcote's hostile work environment claim because Ca!cote raised genuine issues
of material fact with regard to that claim. But Calcote's retaliation claim was
properly dismissed. Therefore, we affirm in part, reverse in part, and remand for
further proceedings.
FACTS
Kevin Ca!cote is an African-American concrete crew chief in the Street
Paving work group of the Seattle Department of Transportation's(SDOT)Street

No. 77136-1-1/2
Maintenance Division (SMD). Street Paving crews conduct maintenance and
construction projects on Seattle's streets and sidewalks, and operate out of two
SOOT facilities: Haller Lake in North Seattle and Charles Street in South Seattle
In 2010, SMD began experiencing the financial repercussions of the 2008
recession. Accordingly, in June 2011, Steve Pratt, SMD's director, eliminated
two out of five concrete crews—one at Haller Lake and one at Charles Street.
Ca!cote's crew, which was located at Haller Lake, was not eliminated. But
Madelene Puloka, Ca!cote's supervisor, was laid off. It is undisputed that
following these layoffs, Calcote was the only African-American crew chief in
Street Paving. After Puloka was laid off, Ca!cote reported to Lone Munger.
In February 2012, Ca!cote met with Pratt to complain about Calcote's
2011 evaluation, which was less favorable than evaluations that he had received
in the past Pratt testified via declaration that meanwhile, a paving manager had
been moved from Haller Lake to Charles Street. As a result, the crews at Haller
Lake had no on-site supervision. Pratt testified he decided to move Ca!cote and
his crew to Charles Street, but before the move was implemented, SDOT's
finance department directed him to make more cuts. Pratt then decided to
disband Ca!cote's crew.
Pratt met with Calcote in February 2012 and offered him two options. One
option was to move to a slightly lower-paying crew chief position in Maintenance
Operations, another SMD work group Another option was for Ca!cote to keep
his crew chief title and pay but move to SMD's Pavement and Engineering
Management Section (PEMS) Calcote was ultimately reassigned to PEMS as of
2

No 77136-1-1/3
March 6, 2012. While assigned to PEMS, Calcote worked no PEMS overtime.
Calcote also did not work any Street Paving overtime while he was at PEMS,
except in May 2014 when he filled in for Jamey Vanater, an asphalt crew chief,
while Vanater was on leave.
In May or June 2014, while Calcote was still assigned to PEMS, he
provided to Pratt, Evan Chinn (SDOT's director of human resources), and
Calcote's then supervisor at PEMS, Elizabeth Sheldon (collectively HR) materials
complaining about his treatment in 2011, his 2011 evaluation, and his
reassignment from Street Paving to PEMS. At a subsequent meeting with HR,
Calcote indicated that he wished to be reclassified as an associate civil engineer.
Sheldon testified via declaration that she then had a conversation with Calcote
about seeking reclassification and that Calcote ultimately did not pursue
reclassification but requested to be moved back to Street Paving. Calcote
returned to Street Paving as an active crew chief on March 15, 2015. Munger
was again Calcote's supervisor there until Munger retired in December 2015.
On March 23, 2015, Calcote sued the City for wrongful withholding of
wages, negligent supervision, and the following claims under the Washington
Law Against Discrimination Act(WLAD), chapter 49.60 RCW. loss of reputation,
disparate treatment, retaliation, and hostile work environment. In May 2017, the
City moved for summary judgment on all of Calcote's claims. In support of his
response to the City's motion, Calcote filed a lengthy declaration from Julius
Rwamashongye, who joined Street Paving as a manager about three or four
months after Calcote returned to Street Paving. The City moved to strike
3

No. 77136-1-1/4
Rwamashongye's declaration and provided the trial court an appendix setting
forth specific objections to many but not all of the statements in
Rwamashongye's declaration.
On the morning of the summary judgment hearing, Calcote moved the trial
court under ER 201 to take judicial notice of SDOT's "Upward Mobility Manual,"
the City's Personnel Rules, and a number of documents related to the City's
Race and Social Justice Initiative. The trial court denied Calcote's ER 201
request, granted the City's motion for summary judgment with respect to all of
Calcote's claims, and excluded Rwamashongye's declaration in its entirety.
Calcote appeals.
ANALYSIS
City's Motion To Strike
The City moves this court to strike from Calcote's reply brief all citations to
and arguments relying on the following documents, which the trial court declined
to take judicial notice of below. the SDOT Upward Mobility Manual and
documents related to the City's Race and Social Justice Initiative (collectively,
Excluded Documents). In response to the City's motion, Calcote requests this
court accept the Excluded Documents as additional evidence on appeal. For the
reasons that follow, we deny Calcote's request and grant the City's motion to
strike.
As an initial matter, we may decline to consider arguments that rely on
evidence that the trial court excluded where, as here, the appellant did not assign
error to the court's exclusion. Bryant v Palmer Coking Coal Co 86 Wn. App.
4

No. 77136-1-1/5
204, 221, 936 P.2d 1163 (1997). Calcote argues that we should disregard his
technical failure to assign error to the trial court's exclusion of the Excluded
Documents and exercise our discretion to consider this case on its merits.
Because Calcote provided no argument and no citation to authority on the issue
of whether the trial court erred by refusing to take judicial notice of the Excluded
Documents, we decline to do so. See State v. Olson 126 Wn 2d 315, 323, 893
P.2d 629(1995)(discretion to consider a case on its merits despite technical
error should be exercised "where the nature of the appeal is clear and the
relevant issues are argued in the body of the brief and citations are supplied").
Calcote also contends, relying on Maynard v. Sisters of Providence, 72
Wn. App. 878, 866 P.2d 1272 (1994), and State v Berg 177 Wn. App. 119, 310
P.3d 866 (2013), rev'd 181 Wn.2d 857, 337 P.3d 310 (2014), that we should
consider the Excluded Documents as additional evidence. Calcote's reliance on
these cases is misplaced. In Maynard the party seeking to introduce additional
evidence on appeal had filed a motion for reconsideration relying on that
evidence. Maynard, 72 Wn. App. at 880. Here, by contrast, there was no motion
for reconsideration relying on the Excluded Documents and, until Calcote filed his
reply, no basis from which the City could know that Calcote would raise
arguments relying on the Excluded Documents. And in Berq the court
considered arguments raised for the first time in a reply brief because the
Washington Supreme Court decided a relevant case after the appellant filed his
opening brief. Berq 177 Wn. App. at 127 n.5. But here, no such intervening
action occurred. Maynard and Berg are not persuasive.
5

No. 77136-1-1/6
Calcote next argues that it is appropriate for this court to take judicial
notice of the Excluded Documents under ER 201. But Calcote does not provide
any discussion as to whether the Excluded Documents satisfy the requirements
of ER 201(b). Accordingly, we do not consider this argument Holland v City of
Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290(1998)("Passing treatment of an
issue or lack of reasoned argument is insufficient to merit judicial
consideration.")
As a final matter, Calcote asserts "[t]he City has cited no authority
supporting the proposition that this Court's review of additional evidence may not
be considered at this stage, especially when this evidence replies to legal
analysis and reasoning in the City's Response Brief." Calcote then urges us to
accept the Excluded Documents as additional evidence to "serve the ends of
justice." But RAP 9.11 governs this court's acceptance of additional evidence on
appeal, and Calcote has neither discussed RAP 9.11 nor provided argument that
the criteria therein have been satisfied. Furthermore, Calcote has not offered
any explanation why allowing him to add new evidence to the record on appeal
would serve the ends of justice in this case. Accordingly, we strike from
Calcote's reply brief the citations to and arguments relying on the Excluded
Documents.
Calcote's Request for Judicial Notice
Calcote moves this court under ER 201 and RAP 9.11 to accept into the
record and take judicial notice of voluminous City overtime records that were not
introduced into the record below. We decline to do so and deny Calcote's
6

No. 77136-1-1/7
motion.
As an initial matter, "[e]ven though ER 201 states that certain facts may be
judicially noticed at any stage of a proceeding, RAP 9 11 restricts appellate
consideration of additional evidence on review." King County v Cent Puget
Sound Growth Mgmt. Hr'qs Bd , 142 Wn.2d 543, 549 n.6, 14 P.3d 133(2000)
RAP 9.11(a) provides that this court
may direct that additional evidence on the merits of the case be
taken before the decision of a case on review if. (1) additional proof
of facts is needed to fairly resolve the issues on review,(2) the
additional evidence would probably change the decision being
reviewed,(3) it is equitable to excuse a party's failure to present the
evidence to the trial court,(4)the remedy available to a party
through postjudgment motions in the trial court is inadequate or
unnecessarily expensive,(5)the appellate court remedy of granting
a new trial is inadequate or unnecessarily expensive, and (6) it
would be inequitable to decide the case solely on the evidence
already taken in the trial court.
RAP 9.11 allows supplementation of the record "only in extraordinary cases" E
Fork Hills Rural Ass'n v. Clark County, 92 Wn. App. 838, 845, 965 P.2d 650
(1998). Each of the six requirements listed in RAP 9.11(a) must be satisfied.
Schreiner v City of Spokane, 74 Wn. App. 617, 620-21, 874 P.2d 883(1994).
Here, Calcote argues that the first requirement of RAP 9.11(a)—that
additional proof of facts is needed to fairly resolve the issues on review—is
satisfied because "the Court needs additional proof to determine whether the
City's treatment of Mr. Calcote occurred under circumstances raising a
reasonable inference of unlawful discrimination." But Calcote mischaractenzes
the issue on review The issue on review is not whether the City's treatment of
Calcote occurred under circumstances raising a reasonable inference of unlawful
7

No. 77136-1-1/8
discrimination, but whether the trial court erred in summarily dismissing Calcote's
claim on the record before it. Although we review this issue de novo, de novo
review does not mean that we hold a new evidentiary hearing or that the parties
may build a new record on this court's review In re Disciplinary Proceedings
Against Turco, 137 VVn.2d 227, 245-46, 970 P.2d 731 (1999) Accordingly,
Calcote does not satisfy the first requirement of RAP 9.11(a).
Calcote also does not satisfy the third requirement of RAP 9.11(a)—that it
is equitable to excuse his failure to present the evidence to the trial court.
Calcote argues that this requirement is satisfied because the City produced the
overtime records the Friday before the Monday morning hearing on the City's
motion for summary judgment. But Calcote had been aware for some time of the
potential import of the overtime records, noting below that he had been asking for
the records for two years. Nonetheless, he made no effort to enter the records
into evidence below or request a CR 56(f) continuance so that the records could
be analyzed and presented to the trial court Calcote also did not move for
reconsideration based on the overtime records so that if the trial court denied
reconsideration, the records could have been considered here without the need
for additional motions practice on appeal. Calcote does not satisfy the third
requirement of RAP 9.11(a)
Because Calcote does not satisfy the first or third requirement of
RAP 9.11(a) and because all requirements of RAP 9.11(a) must be satisfied, we
need not address RAP 9.11(a)'s other requirements. We deny Calcote's request
to accept the overtime records as additional evidence. We also decline, for the
8

No. 77136-1-1/9
reasons already discussed in this section, Ca!cote's alternate request to waive
RAP 9.11(a)'s requirements under RAP 1.2 and RAP 18.8.
Exclusion of Rwamashongye Declaration
CaIcote argues that the trial court erred by striking Rwamashongye's
declaration in its entirety even though the City only objected to parts of the
declaration. We agree
"A court cannot consider inadmissible evidence when ruling on a motion
for summary judgment." Dunlap v. Wayne 105 Wn.2d 529, 535, 716 P.2d 842
(1986) Additionally, under CR 56(e), "opposing affidavits shall be made on
personal knowledge, shall set forth such facts as would be admissible in
evidence, and shall show affirmatively that the affiant is competent to testify to
the matters stated therein." Although a trial court's ruling on a motion to strike
usually is reviewed for abuse of discretion, when a motion to strike is made in
conjunction with a motion for summary judgment, the standard of review is de
novo. Southwick v Seattle Police Officer John Doe #s 1-5, 145 Wn App. 292,
297, 186 P.3d 1089 (2008).
Here, much of Rwamashongye's declaration testimony concerns events
that occurred before or while Calcote was assigned to PEMS, and
Rwamashongye did not lay any foundation for his personal knowledge of those
events.1 Furthermore, several portions contain hearsay and are therefore
1 We decline to consider Calcote's after-the-fact attempts to lay a
foundation for Rwamashongye's personal knowledge, as these arguments are
being raised for the first time on appeal. See RAP 9.12; Silverhawk, LLC v.
KevBank Nat'l Ass'n 165 Wn. App. 258, 265, 268 P.3d 958 (2011)("An
9

No. 77136-1-1/10
inadmissible under ER 802.2 In any case, the majority of Rwamashongye's
declaration, even to the extent admissible, consists of speculation, argumentative
assertions, and rhetorical questions that are insufficient to raise genuine issues
of material fact
That said, Ca!cote is correct that the City did not object to all parts of
Rwamashongye's declaration. We have considered the declaration in its entirety
and conclude that parts of it are based on Rwamashongye's personal knowledge
and are neither inadmissible nor strictly speculative or argumentative.
Accordingly, the trial court erred by striking those parts of the declaration To the
extent that the admissible parts of Rwamashongye's declaration raise genuine
issues of material fact with respect to Calcote's claims, they are cited in the
discussion below.
Summary Dismissal of Employment Discrimination Claims
Calcote argues that the trial court erred by summarily dismissing his
disparate treatment, retaliation, and hostile work environment claims.3 For the
reasons discussed below, we conclude that the trial court properly dismissed
argument neither pleaded nor argued to the trial court cannot be raised for the
first time on appeal.").
2 Ca!cote attached an appendix as exhibit B to his opening brief. The
appendix sets forth argument on the admissibility of Rwamashongye's
declaration. Because the appendix is not properly before us, we do not consider
it. RAP 10.3(a)(8)("An appendix may not include materials not contained in the
record on review without permission from the appellate court.").
3 Ca!cote neither assigns error to nor provides argument regarding the trial
court's summary dismissal of his other claims below; accordingly, we do not
address those claims. Jackson v. Quality Loan Serv Corp , 186 Wn App. 838,
846, 347 P.3d 487(2015)(claims are deemed waived when no error is assigned
nor argument provided).
10

No. 77136-1-1/11
Ca!cote's retaliation claim. We also conclude that the trial court properly
dismissed Ca!cote's disparate treatment claim except to the extent that claim is
based on the alleged denial of overtime opportunities in 2015, after Calcote
returned to Street Paving. Finally, we conclude that the trial court erred by
summarily dismissing Ca!cote's hostile work environment claim because genuine
issues of material fact remain as to that claim.
A. Standard of Review
This court reviews summary judgment orders de novo, viewing all
evidence and reasonable inferences in the light most favorable to the nonmoving
party. Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). "[S]ummary
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." Elcon
Constr,, Inc. v. E. Wash Univ,, 174 Wn.2d 157, 164, 273 P.3d 965 (2012)
(second alteration in original)(quoting CR 56(c)). Once the moving party shows
there are no genuine issues of material fact, "[t]he nonmoving party may not rely
on speculation, argumentative assertions,'or in having its affidavits considered at
face value; for after the moving party submits adequate affidavits, the nonmoving
party must set forth specific facts that sufficiently rebut the moving party's
contentions and disclose that a genuine issue as to a material fact exists."
Becker v. Wash State Univ,, 165 Wn. App. 235, 245-46, 266 P.3d 893(2011)
(quoting Seven Gables Corp. v MGM/UA Entm't Co , 106 Wn.2d 1, 13, 721 P.2d
1(1986)).
11

No. 77136-1-1/12
B. Dismissal of Disparate Treatment Claim
In disparate treatment cases under WLAD, we apply the burden-shifting
protocol developed by the United States Supreme Court in McDonnell Douglas
Corp v Green 411 U S. 792, 93 S. Ct. 1817,36 L. Ed 2d 668(1973) Kirby v
City of Tacoma 124 Wn. App. 454, 464, 98 P.3d 827 (2004). Under that
protocol, Calcote bears the initial burden of establishing a prima facie case of
disparate treatment. Kirby 124 Wn. App. at 464. Although the elements of a
prima facie case vary based on the relevant facts, the parties do not dispute that
Calcote must demonstrate (1) he is a member of a protected class,(2) he
suffered an adverse employment action,(3) he was doing satisfactory work, and
(4)the action occurred under circumstances that raise an inference of unlawful
discrimination. See Mann v King County, 194 Wn. App. 795, 808-09, 378 P 3d
203(2016). An adverse employment action means "a significant change in
employment status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant change
in benefits." Mann 194 Wn. App. at 808 (quoting Burlington Indus Inc. v
Ellerth 524 US. 742, 761, 118 S. Ct. 2257, 141 L. Ed 2d 633(1998)). If Calcote
fails to establish a prima facie case, the City is entitled to judgment as a matter of
law. Kirby 124 Wn. App at 464.
If Calcote makes a prima facie showing, the burden shifts to the City to
show a legitimate, nondiscriminatory reason for the adverse employment action.
Mann 194 Wn. App. at 809. If the City provides such a reason, the burden shifts
back to Calcote to show that the City's reason is a pretext for what in fact is a
12

No. 77136-1-1/13
discriminatory purpose. Mann 194 Wn. App. at 809. CaIcote may show pretext
by offering sufficient evidence that the City's reason had no basis in fact, the
City's reason was not really a motivating factor for its decision, the City's reason
was not temporally connected to the adverse employment action, the City's
reason was not a motivating factor in employment decisions for other employees
in the same circumstances, or although the City's reason is legitimate,
discrimination nevertheless was a substantial motivating factor. Scrivener v.
Clark Coll. 181 Wn 2d 439, 447-48, 334 P.3d 541 (2014). If CaIcote fails to
make a showing of pretext, the City is entitled to judgment as a matter of law.
Kirby 124 Wn App. at 464.
Here, Ca!cote undisputedly is a member of a protected class. He bases
his disparate treatment claim on the following alleged adverse employment
actions:(1) his reassignment from Street Paving to PEMS,(2)the City's failure to
reclassify him as an associate civil engineer while he was at PEMS and its
alleged delay in transferring him back to Street Paving, and (3)the City's denial
of overtime opportunities. We address the burden-shifting analysis for each of
these alleged adverse employment actions below.
(1) Reassignment from Street Paving to PEMS
Assuming for purposes of argument that Ca!cote established a prima facie
case of disparate treatment based on his 2012 reassignment from Street Paving
to PEMS,the City has satisfied its burden to show a legitimate, nondiscriminatory
reason for that reassignment, and Ca!cote has failed to raise a genuine issue of
material fact as to pretext. Accordingly, we conclude that summary judgment
13

No 77136-1-1/14
was proper to the extent that Calcote's disparate treatment claim was based on
his reassignment to PEMS.
Specifically, Pratt, the former SMD director, testified in his declaration that
in early 2012, there were plans already in place to move Calcote's crew from
Haller Lake to Charles Street and that moving the other crew (an asphalt crew)
was not an option due to its equipment, which could not be accommodated at
Charles Street Pratt testified that this decision was also made to improve
communications and scheduling between the concrete crews, which would all be
located at Charles Street following the move. Pratt testified that before the move
was implemented, he received a directive from SDOT finance to make more cuts
and that there was insufficient funding for the three remaining concrete crews.
He also testified that "[lather than lay off another crew, 1 thought I could save
enough money by disbanding a crew and finding places for them on other crews
or in other work groups." Pratt testified that he chose to disband and reassign
the members of Ca!cote's crew because he had already decided to move that
crew. In short, the City has satisfied its burden to proffer a legitimate,
nondiscriminatory reason for disbanding Calcote's crew and reassigning Calcote.
Calcote has not raised a genuine issue of material fact as to whether the
City's proffered reason is pretext for a discriminatory purpose Calcote argues
that a genuine issue of material fact exists because the City provided no
documentation of the early 2012 budget shortfall that led to Calcote's crew being
disbanded. But Pratt provided sworn testimony that he was directed to make
more cuts and that there was insufficient funding for three crews, and Ca!cote
14

No. 77136-1-1/15
has not presented any evidence that contradicts Pratt's sworn testimony.
Accordingly, Calcote's argument is not persuasive. See Laguna v State 146
Wn. App. 260, 266, 192 P.3d 374 (2008)(although court should not resolve
issues of credibility at a summary judgment hearing, no issue of credibility exists
unless party opposing summary judgment comes forward with evidence that
contradicts or impeaches the movant's evidence on a material issue).
Calcote next argues that the City's evidence indicates only specialty and
reimbursable work and utility cut work was drying up, and that members of
Calcote's disbanded crew supplemented the other two concrete crews after
Calcote's transfer. He argues that these facts call into question whether funding
was actually insufficient for three concrete crews But Calcote mischaracterizes
the record by suggesting the City only presented evidence that specific types of
Street Paving work had dried up: Pratt's deposition testimony is clear that the
construction business, in general,"was down to nothing." Furthermore, the fact
that Calcote's crew members may have supplemented the two remaining
concrete crews does not create a genuine issue of material fact as to whether a
budget shortfall existed, particularly where Pratt also testified that most of
Calcote's crew was moved to other crews with more sustainable sources of
funding. Again, Calcote's arguments are unpersuasive.
Calcote also contends that because Vanater was promoted to crew chief
shortly after Calcote was reassigned to PEMS,funding actually was not
insufficient to support three concrete crews. But Calcote's assertion that Vanater
"replaced" him is unpersuasive given that Calcote does not dispute that Vanater
15

No 77136-1-1/16
was promoted to asphalt (not concrete) crew chief. Nor does Calcote dispute
that because Vanater replaced Ray Gallagher, another crew chief, Vanater's
promotion did not add a crew chief position. Vanater's promotion does not raise
a genuine issue of material fact as to pretext.
Finally, Calcote argues that the City cannot explain the labor costs
associated with allowing two crew chiefs to have out-of-class assistants, again
suggesting that the 2012 budget shortfall was pretextual. But although Melissa
Marangon, another concrete crew chief, stated in her declaration that it was "not
unusual" for two of the crew chiefs to have out-of-class crew chiefs assisting
them with certain tasks, that statement alone does not create a genuine issue of
material fact as to whether a budget shortfall existed in early 2012.
For the reasons discussed above, Calcote has not raised a genuine issue
of material fact as to whether the City's reason for reassigning him to PEMS was
pretext for a discriminatory purpose. Accordingly, we affirm the trial court's
dismissal of Ca!cote's disparate treatment to the extent it is based on Calcote's
reassignment to PEMS.
(2) Failure To Reclassify
Calcote argues that the City's failure to reclassify him as an associate civil
engineer while he was at PEMS also serves as a basis for his disparate
treatment claim. He also contends that after he requested to be transferred back
to Street Paving, the City delayed his move. For the reasons that follow, we
disagree.
Sheldon, Ca!cote's PEMS supervisor, testified that she discussed
16

No. 77136-1-1/17
reclassification with Calcote and "explained to him that the employee or
supervisor can request reclassification to a specific position, but the Seattle
Department of Human Resources makes the decision, and may reclassify to a
different position than the one requested, or not change anything at all " Sheldon
also testified that she explained that the work Calcote was doing in PEMS was
likely in the range of classifications that had hourly rates below Calcote's crew
chief rate. She testified that Calcote ultimately did not pursue reclassification
Calcote does not put forth specific facts to rebut Sheldon's testimony, nor
does he dispute that he did not pursue reclassification.4 Instead, he attempts to
recharacterize Sheldon's testimony by arguing that Sheldon was offering him a
position with lower pay. But argumentative assertions do not create genuine
issues of material fact Becker 165 Wn. App. at 245-46.
As a final matter, we are not persuaded by Calcote's assertion that the
City delayed his move back to Street Paving because Calcote admitted in his
declaration that he agreed to stay in PEMS until he finished a pending project
there. For the foregoing reasons, the trial court did not err by summarily
dismissing Calcote's disparate treatment claim to the extent it was based on the
4 At oral argument, Calcote argued that the City continued to seek
candidates for the associate civil engineer position after Calcote and Sheldon
discussed reclassification, relying on a copy of a job bulletin for an associate civil
engineer position posted in July 2014. But again, Calcote does not dispute that
he did not pursue reclassification. Furthermore, Sheldon testified that the job
announced in the bulletin was different from the position held by Calcote while he
was at PEMS, that a competitive process was used to hire for the position, and
most notably, that Calcote did not apply for the position. Calcote did not dispute
any of this testimony, and therefore his argument is not persuasive
17

No. 77136-1-1/18
City's alleged failure to reclassify him as an associate civil engineer and its
alleged delay in transferring Calcote back to Street Paving.
(3) Denial of Overtime Opportunities
Calcote argues that the trial court erred by summarily dismissing his
disparate treatment claim to the extent it is based on the alleged denial of
overtime opportunities in 2011 (before Calcote was reassigned to PEMS), while
he was assigned to PEMS, and after he returned to Street Paving in 2015 We
conclude that Calcote's claim is time barred to the extent it is based on denial of
overtime opportunities in 2011 and that Calcote has not established a genuine
issue of material fact as to the denial of overtime opportunities while he was
assigned to PEMS. But we agree that the trial court erred by summarily
dismissing Ca!cote's disparate treatment claim to the extent it is based on the
alleged denial of overtime opportunities in 2015.
a 2011 Overtime Opportunities
The statute of limitations for claims under WLAD is three years. Antonius
v Kino County, 153 Wn.2d 256, 261-62, 103 P.3d 729 (2004). The limitations
period is tolled during the mandatory 60-day waiting period under RCW 4.96.020
for claims against local governmental entities, which "adds 60 days to the end of
the otherwise applicable statute of limitations." Castro v. Stanwood Sch Dist.
No 401 151 Wn 2d 221, 226, 86 P.3d 1166 (2004) Calcote does not dispute
that for purposes of his disparate treatment claim, any alleged adverse
employment action must have occurred on or after January 22, 2012, which is
three years plus 60 days before he filed his complaint on March 23, 2015.
18

No. 77136-1-1/19
Accordingly, the trial court did not err by dismissing Ca!cote's disparate treatment
claim to the extent it is based on the denial of overtime opportunities in 2011.
b. Street Paving Overtime Opportunities While at PEMS
Dismissal was also proper to the extent that Calcote's disparate treatment
claim was based on the alleged denial of Street Paving overtime opportunities
while Calcote was assigned to PEMS. Assuming for purposes of argument that
Calcote established a prima facie case of disparate treatment based on the
alleged denial of Street Paving overtime opportunities while Calcote was
assigned to PEMS,the City has satisfied its burden to show a legitimate,
nondiscriminatory reason for that denial. And Calcote has failed to raise a
genuine issue of material fact as to pretext.
Specifically, the City produced evidence that under its overtime policy then
in effect, scheduled overtime work would, for efficiency purposes, be performed
by the crew that "actually perform[s] this body of work during regular hours."
That policy also provides that to be considered eligible for a scheduled overtime
opportunity, an employee must "[b]e assigned to the crew which is responsible
for the work being performed." In short, the City's overtime policy was a
legitimate, nondiscriminatory reason that Calcote did not receive Street Paving
overtime while he was assigned to PEMS.
Calcote argues that there is evidence that he was eligible for overtime in
Street Paving while he was assigned to PEMS because he worked Street Paving
overtime in 2014 to cover for Vanater. But the fact that Calcote was given one
overtime opportunity in 2014, without more, does not create a genuine issue of
19

No. 77136-1-1/20
material fact as to whether the overtime policy was pretextual with respect to the
denial of other Street Paving overtime opportunities
Calcote also contends that the City cannot rely on the fact that Marangon
(who also completed an assignment in PEMS) had no Street Paving overtime
hours while she was assigned to PEMS, arguing that Marangon chose not to
work more overtime hours. But Marangon's declaration indicates that the
occasions when she chose not to work overtime occurred in 2011. Marangon
was not assigned to PEMS until 2012 or 2013, so Calcote's argument is not
persuasive.
Ca!cote next relies on his union's collective bargaining agreement(CBA)
to argue that the overtime policy was a pretext for a discriminatory purpose. He
argues that under the CBA, any scheduled Street Paving overtime should have
been offered to him before it was offered to out-of-class crew chiefs. But the
cited portion of the CBA provides that overtime work will be offered to regular
employees before temporary employees are asked to work overtime, and that
full-time crew chiefs have a right of first refusal for scheduled overtime within the
work title, "provided that the overtime work is within their same work unit and shift
and will not impact job continuation." Ca!cote does not allege that any temporary
employee was offered overtime before it was offered to Ca!cote or that any
scheduled Street Paving overtime was within Calcote's same work unit and shift
and would not impact job continuation Calcote's argument is not persuasive.
Ca!cote also asserts that while he was assigned to PEMS, he should have
had the first right of refusal under the CBA to be transferred back to Street
20

No. 77136-1-1/21
Paving as a crew chief before others were given an opportunity to work as "out of
class" crew chiefs. But the only support Calcote points to for this argument is his
own declaration stating his interpretation of his union contract's seniority rules.
Calcote's assertion, which he does not support with relevant language from the
CBA, is not sufficient to create a genuine issue of material fact on this matter.
Finally, Calcote contends that a genuine issue of material fact exists
because Pratt admitted during his deposition that seniority is a basis for
employment decisions. But Pratt did not make such an admission. He only
explained that had Calcote been transferred to Charles Street in 2012, rather
than reassigned to PEMS, Pratt would have had to reassign Marangon based on
seniority. Meanwhile, both Pratt and Rwamashongye testified that management
is not required to take seniority into account when transferring employees.5
Therefore, this argument fails.
For the reasons above, we affirm the dismissal of Calcote's disparate
treatment claim to the extent it is based on the alleged denial of Street Paving
overtime opportunities while Calcote was assigned to PEMS
c 2015 Overtime Opportunities
Calcote argues that the alleged denial of overtime opportunities in 2015
also serves as a basis for his disparate treatment claim We agree and conclude
that the trial court erred by summarily dismissing Calcote's disparate treatment
claim to the extent that it is based on an alleged denial of Street Paving overtime
5 The City did not object below to this portion (Clerk's Papers at 563) of
Rwamashongye's declaration, and it is otherwise admissible. Accordingly, the
trial court erred by excluding this portion of Rwamashongye's declaration.
21

No 77136-1-1/22
opportunities in 2015, after Calcote returned to Street Paving from PEMS.
As an initial matter, the City asserts that the record does not support
Ca!cote's claim that he was denied overtime in 2015 But Calcote testified in his
declaration that in 2016, Rwamashongye began evening out overtime so that it
was assigned more equally to the crew chiefs, significantly increasing Calcote's
income. Viewed in the light most favorable to Calcote, this assertion raises an
inference that in 2015, overtime could have been—but was not—evenly assigned
and that CaIcote's compensation was negatively affected as a result.
Accordingly, for summary judgment purposes, we consider the alleged denial of
overtime in 2015 an adverse employment action. Fonseca v. Svsco Food Servs.
of Ariz, 374 F.3d 840, 847 (9th Cir. 2004)("[Ajn adverse employment action
exists where an employer's action negatively affects its employee's
compensation "); see also Antonius, 153 Wn.2d at 266 (Federal cases, while not
binding, may be persuasive when they further the purposes and mandates of
WLAD.).
To establish a prima facie case of disparate treatment on the basis of this
alleged denial of overtime, Calcote must also show he was doing satisfactory
work when he was denied overtime in 2015, after he returned to Street Paving.
Although the City produced evidence of performance concerns regarding
Calcote, "at the prima facie stage,[the plaintiffs] self-assessment of his
performance is relevant," particularly where it is not the only evidence he
presented. Aragon v. Republic Silver State Disposal, Inc., 292 F.3d 654, 660
(9th Cir. 2002). Here, Rwamashongye, who joined Street Paving in mid-2015,
22

No. 77136-1-1/23
testified in his declaration that Calcote "is as good as the other crew chiefs."6
Accordingly, we conclude, for summary judgment purposes, that Calcote was
doing satisfactory work in 2015.
The final element that Calcote must show to establish a prima facie case
of disparate treatment is that the adverse employment action complained of
occurred under circumstances that raise an inference of unlawful discrimination.
To do so, Calcote must "point[] to ... evidence that the [City] took an adverse
action against him because of his protected class." See Mann 194 Wn. App at
810(emphasis added). This is where the trial court concluded that Calcote's
disparate treatment claim failed, observing that the thrust of Calcote's allegations
seemed to be that he was treated unfairly but that there was no "real evidence"
his treatment was different on the basis of race.
Because "[t]he 'requisite degree of proof necessary to establish a prima
facie case ... is minimal and does not even need to rise to the level of a
preponderance of the evidence," Fulton v Department of Social & Health
Services, 169 Wn. App. 137, 152, 279 P.3d 500(2012)(alteration in original)
(quoting Wallis v J R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994)), the trial
court erred by requiring "real evidence" that Calcote's treatment was different
based on race. It is undisputed that Calcote was the only African-American
Street Paving crew chief in 2015, and he has presented evidence that overtime
opportunities were withheld from him in 2015. Under these circumstances,
6 The City did not object below to this portion (Clerk's Papers at 568) of
Rwamashongye's declaration, and it is otherwise admissible. Accordingly, the
trial court erred by excluding this portion of Rwamashongye's declaration.
23

No. 77136-1-1/24
Calcote has established, for summary judgment purposes, that this alleged
withholding of overtime occurred under circumstances that raise an inference of
unlawful discrimination Cf McGinest v GTE Serv Corp 360 F.3d 1103, 1122
n.17 (9th Cir. 2004)(It is "widely recognized" that the test for a prima facie case
is a flexible one.).
Because Calcote has established a prima facie case of disparate
treatment based on the alleged denial of overtime opportunities in 2015, the
burden shifts to the City to put forth a legitimate, nondiscriminatory reason for the
denial. We conclude that although the City proffered a legitimate,
nondiscriminatory reason for any denial of overtime opportunities after Calcote
returned to Street Paving in 2015, Calcote has raised a genuine issue of material
fact as to pretext. Specifically, the City argues that Calcote's claim is vague and
unsupported and that Calcote admitted that under the overtime policy, others had
the first opportunity at asphalt and utility cut overtime But Calcote stated in his
declaration that Rwamashongye was able to even out the overtime in 2016 so
that it was assigned to all of the crew chiefs more equally, resulting in a
significant increase in Calcote's income. Rwamashongye also testified that when
he joined Street Paving, he changed the system to balance the work and
overtime.7 Viewed in the light most favorable to Calcote, Rwamashongye's
testimony creates a genuine issue of material fact as to whether the overtime
policy was the actual reason for any overtime imbalance in 2015, before
7 The City did not object below to this portion (Clerk's Papers at 556-57) of
Rwamashongye's declaration, and it is otherwise admissible Accordingly, the
trial court erred by excluding this portion of Rwamashongye's declaration.
24

No 77136-1-1/25
Rwamashongye balanced out overtime.
In summary, we conclude that the trial court erred by dismissing Calcote's
disparate treatment claim to the extent it is based on the denial of overtime
opportunities in 2015, after Calcote returned to Street Paving. Otherwise,
Calcote's disparate treatment claim was properly dismissed.
D. Dismissal of Retaliation Claim
Calcote argues that the trial court erred by summarily dismissing his
retaliation claim. We disagree.
Retaliation claims are subject to the same burden-shifting scheme as
disparate treatment claims Milligan v. Thompson 110 Wn. App. 628, 638, 42
P.3d 418 (2002). To establish a prima facie case of retaliation, Calcote must
show that(1) he engaged in a statutorily protected activity,(2) the City took an
adverse employment action against him, and (3) there is a causal link between
the activity and the adverse action. Alonso v Qwest Commc'ns Co., 178 Wn
App. 734, 753-54, 315 P.3d 610 (2013). In this context, "[a] general complaint
about an employer's unfair conduct does not rise to the level of protected activity
in a discrimination action under WLAD absent some reference to the plaintiff's
protected status." Alonso, 178 Wn. App at 754 (emphasis added). Thus, for
example, in Alonso, the Court of Appeals affirmed the dismissal of the plaintiff's
retaliation claim where the plaintiff complained of corruption, mistreatment, and
vulgar language, but did not express that those complaints were based on
harassment based on his protected status. Alonso 178 Wn. App. at 754.
Similarly, in Graves v. Department of Game,76 Wn. App. 705, 887 P.2d 424
25

No. 77136-1-1/26
(1994), the plaintiff's retaliation claim was properly dismissed because although
she complained that her supervisor was not spending enough time with her, was
not training her sufficiently, and was expecting too much of her, she did not
suggest any discrimination based on her protected class. Graves 76 Wn. App.
at 712.
Here, Ca!cote contends that he engaged in a statutorily protected activity
in February 2012 by complaining to Pratt about his poor performance review for
2011 and again in June 2014 when he met with HR. But CaIcote did not indicate
on either of those occasions that his complaints were based on his membership
in a protected class. Specifically, Calcote testified by declaration that when he
met with Pratt in 2012, he "complained about [his 20111 evaluation and [he]felt
[he] was not being treated fairly." Ca!cote does not point to anything in the
record indicating that he mentioned his protected status during this meeting
Ca!cote argues in his opening brief that he expressed "concern[s] of favoritism
and discriminatory application of SDOT's process and procedures" to Pratt in
2012, citing to his notes from his discussion with Pratt. But Ca!cote admitted at
his deposition that when he met with Pratt in 2012, he did not express these
concerns. Instead, the focus of the discussion was Calcote's 2011 evaluation. In
short, Calcote's 2012 complaint to Pratt was not a statutorily protected activity.
Calcote's complaint to HR in 2014 also was not a statutorily protected
activity because, again, Ca!cote does not point to anything in the record
indicating that he referenced his protected class in that complaint Ca!cote
argues that he referenced his protected class by giving a packet of information to
26

No. 77136-1-1/27
HR titled "Discriminatory Practices (Unfairness) Favoritism" that stated he was
discriminated against, provided examples of City policies and procedures that
were not followed, and listed personnel rules that he believed were violated. But
Calcote did not reference his protected class in that packet, including on the
page titled "Discriminatory Practices (Unfairness) Favoritism," which describes
general unfair conduct. And Evan Chinn, who participated in the meeting,
testified that "[alt no time did Mr. Calcote allege any treatment was due to his
race."
Calcote next contends, quoting Alonso that he need not demonstrate that
he referenced his protected status as long as he was complaining of activity "that
he reasonably believed to be discriminatory." But the quoted text from Alonso
does not mean that a plaintiff need not reference his protected status. Rather, it
means that if he does, he need not prove that the discrimination he complained
of was unlawful to establish a prima fade case of retaliation. See Short v. Battle
Ground Sch Dist , 169 Wn. App. 188, 205-06, 279 P.3d 902(2012)(explaining
that plaintiff need not prove her discrimination claim to prove she engaged in
statutorily protected activity), overruled on other grounds Kumar v Gate
Gourmet, Inc., 180 Wn.2d 481, 325 P.3d 193(2014). Calcote's reliance on
Alonso is misplaced.
Because Calcote did not engage in statutorily protected activity when he
complained of unfair conduct in 2012 and 2014, he did not establish a prima facie
case of unlawful retaliation. Summary judgment was therefore proper, and we
need not reach Calcote's arguments regarding the remaining elements of a
27

No 77136-1-1/28
retaliation claim.8
E. Dismissal of Hostile Work Environment Claim
Calcote argues that the trial court erred by dismissing his hostile work
environment claim. We agree.
To demonstrate a hostile work environment, Calcote must establish he
suffered harassment that(1) was unwelcome,(2) affected the terms and
conditions of employment,(3) was because Calcote was a member of a
protected class, and (4) is imputable to the City. Loeffelholz v. Univ. of Wash.
175 Wn 2d 264, 275, 285 P.3d 854 (2012).
Here, Calcote's allegations of harassment center on Munger, who
supervised Calcote in late 2011 and early 2012, before Calcote was reassigned
to PEMS, and again after Calcote returned to Street Paving from PEMS.
Specifically, Calcote alleges that Munger micromanaged him, requiring him to
give detailed explanations about projects and explain his plans for completion
from start to finish, while other crew chiefs were not required to provide this level
of written detail. Calcote also alleges that Munger required Calcote to request
resources in a burdensome manner not required of other crew chiefs, directing
Calcote to coordinate through Munger, while other crew chiefs were allowed to
coordinate among themselves without Munger's involvement Calcote alleges
that Munger denied him use of certain equipment in both 2011 and 2015, slowing
down the progress of his projects, and that Munger withheld specialized
8 At oral argument, Calcote raised a number of arguments regarding this
and other claims that were either not argued or not clearly articulated in his
briefs. We decline to consider those arguments. RAP 12.1(a).
28

No 77136-1-1/29
personnel from Ca!cote. Additionally, Ca!cote alleges that Munger withheld
projects from him, forcing him to ask other departments for work to keep his crew
busy.
The City does not dispute that the above-described conduct was
unwelcome, and accordingly, we accept that it was. We address the remaining
elements of Calcote's hostile work environment claim below.
(1) Effect on Terms and Conditions of Employment
The City argues that Ca!cote cannot show that Munger's conduct affected
the terms and conditions of employment. We disagree.
To satisfy the "terms and conditions of employment" element, the
harassment "must be sufficiently pervasive so as to alter the conditions of
employment and create an abusive working environment." Glasgow v Georgia-
Pac Corp 103 Wn.2d 401, 406, 693 P 2d 708 (1985). "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."
Glasgow, 103 Wn.2d at 406. Additionally, "[t]he conduct must be both objectively
abusive and subjectively perceived as abusive by the victim." Clarke v Office of
Att'y Gen , 133 Wn. App. 767, 787, 138 P.3d 144 (2006). That said, "[w]hether
harassment is sufficiently severe or pervasive is a question of fact," and the court
considers the totality of the circumstances, including "whether the conduct
involved words alone or also included physical intimidation or humiliation, and
whether the conduct interfered with the employee's work performance." Adams
v Able Bldg Supply, Inc , 114 Wn App. 291, 296-97, 57 P.3d 280 (2002).
29

No. 77136-1-1/30
Here, Calcote testified by declaration that Munger withheld equipment
from him on at least three occasions beginning in June 2011 and until Calcote
was reassigned to PEMS Calcote also explained that these alleged actions
dramatically slowed down the progress of his projects. Calcote testified that from
June 2011 until he moved to PEMS, Munger withheld concrete finishers from him
on at least two occasions. He testified that Munger ignored his requests for new
projects, such that he had to seek out projects directly from project managers.
He also testified that when he returned to Street Paving from PEMS, Munger
continued to withhold equipment from him and that although other non-African-
American crew chiefs had their own trailers, Calcote did not. Additionally,
Marangon testified in her declaration that Munger would not make other crew
chiefs do the things that Calcote was required to do, like "write reports explaining
every little detail" or "go through [Munger] if we wanted to coordinate the use of
equipment with another crew chief." Marangon also testified that after Calcote
returned to Street Paving from PEMS, Munger continued to treat him the way she
had before he was assigned to PEMS, including by withholding equipment.
Additionally, Rwamashongye testified that when he joined Street Paving as a
manager in mid-2015, he gave Munger the opportunity to rent a trailer for
Calcote's crew, but she did not do so.9 He also testified that he then pulled the
equipment responsibility from Munger and took over that responsibility himself,
9 The City did not object below to this portion (Clerk's Papers at 557) of
Rwamashongye's declaration, and it is otherwise admissible. Accordingly, the
trial court erred by excluding this portion of Rwamashongye's declaration
30

No. 77136-1-1/31
and that is how Calcote was able to get a trailer.10 Calcote testified that being
able to rent a trailer improved his crew's productivity. Based on the foregoing
declaration testimony, we conclude that Calcote raised a genuine issue of
material fact as to whether, under the totality of the circumstances, Munger's
treatment of Calcote affected the terms and conditions of employment.
The City argues that the conduct alleged by Calcote is neither harassing
nor objectively abusive, characterizing Calcote's complaints as "ordinary, non-
abusive workplace complaints." The City relies on two unpublished federal court
orders to support its argument. These orders are not binding, and we decline to
address them. Cf. Antonius 153 Wn.2d at 267 (suggesting that given WLAD's
broad scope and the requirement that it be liberally construed, federal case law is
only persuasive to the extent that it provides the potential for greater recovery).
The City also asserts that far more offensive conduct has not been found
to create a hostile work environment, citing Davis v Fred's Appliance, Inc , 171
Wn App. 348, 287 P 3d 51(2012) In that case, the Court of Appeals affirmed
the summary dismissal of the plaintiff's hostile work environment claim,
concluding that a manager's reference to the plaintiff as "Big Gay Al" three times
in one week was, although highly inappropriate, only "casual, isolated, and
trivial " Davis, 171 Wn. App at 362. Here, Calcote's claims are not based on
isolated utterances, but rather on Munger's alleged conduct over a significant
period of time. Furthermore, Calcote presented evidence that Munger's conduct
10 The City did not object below to this portion (Clerk's Papers at 557) of
Rwamashongye's declaration, and it is otherwise admissible. Accordingly, the
trial court erred by excluding this portion of Rwamashongye's declaration.
31

No. 77136-1-1/32
was sufficiently pervasive to affect his day-to-day work, including his ability to
obtain projects and timely complete them. Accordingly, Davis is distinguishable
on its facts and does not control.
(2) Harassment Was Because Calcote Was a Member of a Protected
Class
Calcote argues that he has raised a genuine issue of material fact as to
whether Munger's harassment occurred because Calcote is a member of a
protected class. We agree
In this context, the dispositive question is whether Calcote would have
been subjected to Munger's alleged harassment if Calcote had not been African-
American See Adams 114 Wn. App. at 298 Here, Calcote presented evidence
that he was required to provide detailed reporting to Munger regarding his
projects and to coordinate through Munger to obtain equipment. Calcote also
presented evidence that he was the only crew chief subjected to these
requirements by Munger, and it is undisputed that at all times that Munger
managed Calcote, Calcote was the only African-American crew chief.
Accordingly, Calcote has presented sufficient evidence to raise a genuine issue
of material fact with regard to this element.
The City contends that Calcote cannot demonstrate that Munger treated
him differently because of his race because there is no evidence that Munger
ever mentioned his race. In support of its argument, the City cites three
unpublished federal court cases in which the plaintiff's hostile work environment
claim was dismissed, in part because the plaintiff was not able to allege any
harassment that referenced the plaintiff's membership in a protected class.
32

No. 77136-1-1/33
These cases are not binding. In any event, there was no allegation in any of
these cases that the plaintiff was the only comparable employee who was a
member of the relevant protected class Accordingly, the federal cases on which
the City relies are not persuasive.
The City also points out that Calcote stated that the reason he believed
Munger's conduct was connected to his race was because he felt he was doing
satisfactory work, other crew chiefs did not receive the same treatment, and he
could not think of any other reason. Citing Domingo v Boeing Employees' Credit
Union, 124 Wn. App 71,98 P.3d 1222 (2004), abrogated 12y Mikkelsen v Public
Utility District No 1 of Kittitas County, 189 Wn.2d 516,404 P.3d 464 (2017), the
City argues that this is not enough to survive summary judgment. The City's
reliance on Domingo is misplaced. First, there was no allegation in Domingo that
the plaintiff was the only member of the relevant protected classes among her
otherwise comparable coworkers Furthermore, in Domingo, the plaintiff's hostile
work environment claim was based on an incident where a coworker hit her with
a chair, but a supervisor who investigated the complaint viewed security footage
of the incident and concluded that the act was unintentional. Domingo, 124 Wn.
App. at 76, 83. Here, there is no dispute that Munger's conduct was—whether
unlawful or not—deliberate Accordingly, Domingo does not control
The City next contends that Calcote cannot show that Munger's alleged
harassment was based on Calcote's race because the conduct that Calcote
complains of was also experienced by non-African-American crew chiefs
Specifically, the City points out that Gallagher, another crew chief, was also a
33

No. 77136-1-1/34
frequent recipient of requests from Munger to explain his reasoning and
outcomes, and received a poor review from Munger. The City cites a declaration
from Marangon in which Marangon states she witnessed Munger's scrutiny of
Gallagher and experienced similar scrutiny from Munger. But Marangon also
testified in a later declaration that Munger "treated [Calcote] badly" and that "[t]he
other crew chiefs didn't have to do the things that [Munger] would make [Calcote]
do," including writing detailed reports and explaining "every little detail" and going
through Munger to coordinate the use of equipment with another crew chief
Viewed in the light most favorable to Calcote, Marangon's later declaration raises
a genuine issue of material fact as to whether Munger's scrutiny of Calcote was
harsher than her scrutiny of other crew chiefs, including Gallagher.
As a final matter, the City argues that Munger also denied resources to
other crew chiefs, pointing out that Kyle Abrahamson, Calcote's Caucasian
predecessor, did not have a trailer and had to coordinate with other crew chiefs.
But Marangon's declaration referenced above raises an inference that although
other crew chiefs could coordinate directly amongst each other for use of
equipment, Calcote was required to go through Munger. Abrahamson's
declaration, which indicates that he was able to coordinate directly with other
crew chiefs, does not rebut this allegation. Additionally, Rwamashongye testified
that even after he gave Munger the opportunity to rent a trailer for Calcote,
Munger still failed to do so.11 For these reasons, the City's arguments are not
11 The City did not object below to this portion (Clerk's Papers at 557) of
Rwamashongye's declaration, and it is otherwise admissible. Accordingly, the
trial court erred by excluding this portion of Rwamashongye's declaration.
34

No. 77136-1-1/35
persuasive.
(3) Imputable to the City
The City argues that dismissal was proper because Munger's conduct is
not imputable to the City. We disagree.
"Harassment is imputed to an employer when an owner, manager,
partner, or corporate officer personally participates in the harassment." Alonso
178 Wn. App at 752. "Managers are those whom the employer has given
authority and power to affect the hours, wages, and working conditions of the
employer's workers" Alonso 178 Wn. App at 752. Here, the record includes
evidence that Munger had the ability to move crew chiefs around to balance
workloads and that Munger had the ability to assign overtime. There is also
evidence in the record that until Rwamashongye took this responsibility away
from Munger, Munger managed the crews' access to equipment.12 Viewed in the
light most favorable to Calcote, this evidence raises a genuine issue of material
fact as to whether Munger qualified as a manager. See Alonso 178 Wn. App. at
752-53 (concluding that individual was "manager" for summary judgment
purposes where individual managed how employees would spend their workdays
on projects and controlled overtime).
The City asserts that Munger was not a "manager" because she did not
have authority to fire, promote, reassign, or impose discipline more severe than a
warning. But Alonso makes clear that whether Munger was a "manager" is not
12 The City did not object below to this portion (Clerk's Papers at 557) of
Rwamashongye's declaration, and it is otherwise admissible. Accordingly, the
trial court erred by excluding this portion of Rwamashongye's declaration.
35

No. 77136-1-1/36
determined by her official title, but rather by whether Munger "enjoyed the
authority to affect the hours, wages, and working conditions" of employees.
Alonso 178 Wn App. at 752. Because the record indicates that Munger had the
authority to affect Calcote's hours (via project assignments), wages (via overtime
assignments), and working conditions (via access to equipment), Munger was a
"manager" for purposes of summary judgment
That said, even though Munger was a "manager," the City may avoid
liability if it proves that it "exercised reasonable care to prevent and correct
promptly any.... harassing behavior," and Calcote "failed to take advantage of
any preventive or corrective opportunities provided by the [City]." Sangster v.
Albertson's, Inc. 99 Wn. App. 156, 165, 991 P.2d 674(2000)(quoting Ellerth
524 U.S. at 765; Faragher v City of Boca Raton 524 U.S. 775, 807, 118 S. Ct.
2275, 141 L. Ed. 2d 662 (1998)). We conclude that Calcote has raised a genuine
issue of material fact as to whether the City has successfully established this
defense (the Faragher/Ellerth defense). Specifically, the City alleges that it
exercised reasonable care to prevent and correct harassing behavior because its
personnel rules prohibit race-based harassment and require reporting and
investigating harassment, and because Calcote admitted that he received
antiharassment training in 2011. But the City does not dispute Calcote's
contention that the City failed to investigate Calcote's 2014 complaint regarding
Munger's conduct and does not point to any evidence in the record that indicates
that an investigation occurred. In other words, the City has, at best, established
that it exercised reasonable care to prevent harassing behavior, but not that it
36

No. 77136-1-1/37
exercised reasonable care to prevent and correct that behavior.
The City argues that it is nonetheless eligible for the Faraqher/Ellerth
defense because Calcote's 2014 complaint does not mention race or harassment
and is therefore too generalized to avoid application of the defense But the City
does not cite any binding authority that requires Calcote to specifically mention
race or harassment to avoid application of the defense.13
The City also contends that Calcote failed to take advantage of corrective
opportunities because he did not complain of the alleged harassment until 2014
and Munger committed no "harassment" after May 2014 But, as discussed,
Calcote presented evidence that Munger's allegedly harassing conduct continued
after Calcote returned to Street Paving in 2015. Accordingly, this argument is not
persuasive.
(4) Timeliness
As a final matter, the City argues that conduct occurring before January
22, 2012, cannot be considered as part of the allegedly hostile work environment.
We disagree.
In Antonius our Supreme Court explained that in determining whether
acts that fall outside of the limitations period may be considered together with
13 The City cites an unpublished federal case Setelius v National Grid
Electric Services LLC, No. 11-CV-5528(MKB), 2014 WL 4773975(E D N.Y.
Sept. 24, 2014)(memorandum opinion and order) But Setelius is not binding
and is in any event readily distinguishable. In that case, the plaintiff's complaints
were vague in that she mentioned only that she was "having problems" with her
supervisor and the way that she was being treated. Setelius 2014 WL 4773975,
at *2-3. Here, by contrast, Ca!cote's 2014 complaint to HR cited specific
examples of the ways in which Calcote believed he was being treated unfairly.
37

No. 77136-1-1/38
timely acts as part of the same actionable hostile work environment, "[t]he acts
must have some relationship to each other." Antonius 153 Wn 2d at 256. In
doing so, the court rejected, for purposes of hostile work environment claims,
what was known as the "serial continuing violation" test, whereby discrete
discriminatory acts that fell outside the limitations period could not be considered
if the plaintiff was or should have been aware that he was being unlawfully
discriminated against while the earlier acts were taking place. See Antonius 153
Wn.2d at 263. Additionally, the court concluded that although there had been an
approximately one-year gap in alleged harassing conduct while the plaintiff in
Antonius was assigned to a different facility, "a gap, in and of itself, is not a
reason to treat acts occurring before and after that gap as not constituting parts
of the same unlawful employment practice." Antonius 153 Wn.2d at 272 The
court explained that "a 'court's task is to determine whether the acts about which
an employee complains are part of the same actionable hostile work environment
practice, and if so, whether any act falls within the statutory time period."
Antonius 153 Wn.2d at 271 (quoting Nat'l R R Passenger Corp v Morgan, 536
us 101, 120, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002)).
Here, we conclude that the pre-January 22, 2012, acts and the 2015 acts
about which Calcote complains are all part of the same actionable hostile work
environment claim. First, all of the acts that Calcote complains of are attributable
to Munger, to whom Calcote reported both before he was reassigned to PEMS
and after he returned to Street Paving. Accordingly, there is a clear relationship
between the pre-January 22, 2012, acts and the 2015 acts. See Antonius, 153
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No. 77136-1-1/39
Wn.2d at 271 ("[Alcts must have some relationship to each other to constitute
part of the same hostile work environment claim ") To this end, Marangon
testified that when Calcote returned to Street Paving in 2015, Munger "continued
to treat [Calcote] the way she did before he was transferred to PEMS." In other
words, even though Calcote's hostile work environment claim may not have been
actionable had it been based on Munger's pre-January 22, 2012, conduct alone,
the fact that this conduct continued after Calcote returned in 2015 indicates that
both Munger's untimely conduct and her 2015 conduct were part of the same,
unitary environment. Thus, Calcote's reassignment, like the gap discussed in
Antonius, "is not a reason to treat acts occurring before and after that gap as not
constituting parts of the same unlawful employment practice." Antonius, 153
Wn.2d at 272. Munger's pre-January 22, 2012, conduct and her 2015 conduct
were part of the same allegedly hostile work environment.
The City argues, citing Crownover v State 165 Wn. App 131, 265 P.3d
971 (2011), that due to the time gap while Calcote was assigned to PEMS,
Munger's pre-January 22, 2012, conduct is not part of the same alleged hostile
work environment as Munger's later conduct. But, as discussed Antonius
demonstrates that a gap alone is insufficient to defeat Calcote's claim, even
when Calcote was assigned to a different work group during that gap
Furthermore, in Crownover the only event reported within the limitations period
was a "facially innocuous" statement made by a supervisor about the members of
a crew "spending quality time together in Pasco." Crownover 165 Wn App. at
144-45. Here, by contrast, Calcote alleges that after he returned to Street
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No. 77136-1-1/40
Paving, Munger continued to micromanage him and withhold equipment from
him. This alleged conduct is not facially innocuous like the statement in
Crownover. Accordingly Crownover does not control.
For the reasons discussed above and viewing the evidence in the light
most favorable to Calcote, genuine issues of material fact remain as to the
elements of Ca!cote's hostile work environment claim Accordingly, the trial court
erred by summarily dismissing that claim.
We affirm in part, reverse in part, and remand for further proceedings
WE CONCUR:
diagn,4er
40
OtALAI