HUNT, J.
¶ 1 Julie Short appeals the superior court's summary judgment dismissal of her religious discrimination, failure-to-accommodate, and retaliation claims against the Battle Ground School District and its superintendent, Rochonne Bria. Short argues that the superior court erred in granting summary judgment because (1) she presented substantial evidence of a prima facie case for each of her claims, and (2) the parties disputed genuine issues of material fact. Holding that Short failed to meet her burden on summary judgment, we affirm.
¶ 2 Julie Short is a devout Christian woman with deeply held religious beliefs. The Battle Ground School District employed Short from January 2007 through March 20, 2008. Although originally hired as the administration office receptionist, Short also worked for two and a half months as executive assistant to superintendent Rochonne Bria; in this position, Short worked closely with Bria, liked her job, and had no notable disputes with Bria.
¶ 3 On September 1, 2007, Bria reassigned Short to work as the assistant for Kelly O'Brien, an independent contractor who also served as the District's Public Information Officer. Although O'Brien supervised Short's day-to-day work,
¶ 4 On November 26, Bria called Short to her office where O'Brien was seated at a conference table. Bria instructed Short to report all conversations she had relayed to O'Brien. Short tried to explain that the situation was a misunderstanding, that O'Brien was her supervisor, and that she (Short) had simply answered O'Brien's questions honestly. Short reassured Bria that she had not told O'Brien anything untrue because lying would "violate her religious beliefs." CP at 182.
¶ 5 According to Short, Bria then became physically threatening and intimidating — standing over Short, placing her hands on Short's shoulders, jabbing her finger in Short's face, and pacing around the office, yelling and cursing, with her arms flailing. Bria pressured Short to tell O'Brien that the information she (Short) had previously provided was untrue; but Short refused because to do so would require her to lie. Bria yelled at Short and told her to leave.
¶ 6 Thereafter, Bria ignored Short, refused to order supplies for her office, threatened "to take [her] to court," and told her that she (Bria) would never have another conversation with her without another adult present. CP
¶ 7 On February 21 and February 22, 2008, Bria held a series of meetings about the new middle school dedication ceremony; Short attended these meetings with Bria's assistant, Irene Melton. During the first meeting on February 21, Bria forbade Short and Melton from discussing the meeting with anyone, especially O'Brien. Bria commented that she had personally "diagnosed" O'Brien with a "multiple personality disorder," that O'Brien had "`eyes and ears'" all over the District office, that she (Bria) suspected someone was already on the phone informing O'Brien that they were meeting, and that Short and Melton each needed to come up with a "`cover story'" for the meeting. CP at 64-65. When Short suggested that they "tell the truth" about the meeting, Bria did not respond. CP at 65.
¶ 8 According to Short, during this meeting, Bria asked her only general information about the progress of the dedication ceremony and other mundane matters, such as ordering refreshments and plaques and printing invitations. Short did not feel the information they had discussed was in any way "confidential"; but she believed the information was "vital" to O'Brien's ability to perform her job as the District's Public Information Officer. CP at 176. So when Bria told Short that she could not discuss anything that they had talked about with O'Brien, Short asked Bria if she could tell O'Brien that they had simply met to discuss the dedication ceremony; Bria responded, "[N]o." CP at 66. Short then asked if she could refer O'Brien to Bria if O'Brien had any questions; again, Bria flatly refused and said, "[N]o." CP at 66. Finally, Short asked Bria how she should respond if O'Brien asked her directly about the meeting; Bria replied, "Make something up, lie." CP at 62 (emphasis added).
¶ 9 During this meeting, Bria offered to transfer Short to another department in the District "at no loss of pay"
¶ 10 Later that day, Bria called Short back to her office and showed her a document that Short believed was a "newly created organizational chart." CP at 175. Short continued to refuse to lie to O'Brien; Bria responded by yelling at Short and threatening that her (Short's) reputation would be "ruined." CP at 175. According to Short, Bria also suggested that, if Short did not comply with her directions, she would place Short under a
¶ 11 After this latter February 21 incident, Short felt Bria's conduct became "increasingly intolerable": Bria continued to yell at Short, to threaten Short, and to give her the "silent treatment." CP at 177. Short also heard from other District employees that Bria had called her (Short) a "`lying b*tch'" and had told them that she (Short) was "angling for [O'Brien's] job." CP at 258. Short discussed Bria's conduct with her pastor and another parishioner at her church; she tried to work through the situation, but she was unable to do so. On March 2, Short asked to take leave because of the "treatment [she] was receiving from [Bria]." CP at 214. On March 20, while on leave, Short formally resigned.
¶ 12 Short sued the District and Bria (collectively, the "District") for religious discrimination, failure to accommodate her religious beliefs, and retaliation
¶ 13 Short argues that the superior court improperly granted summary judgment to the District because genuine issues of material fact remained in dispute and she had presented evidence sufficient to establish a prima facie case for each of her claims. We disagree.
¶ 14 We review summary judgment orders de novo, performing the same inquiry as the superior court. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004). Summary judgment is appropriate only if the pleadings, affidavits, depositions, interrogatories, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to a judgment as a matter of law. CR 56(c); Davis v. W. One Auto. Group, 140 Wn.App. 449, 456, 166 P.3d 807 (2007). When ruling on a summary judgment motion, we consider all facts submitted and all reasonable inferences from them in the light most favorable to the non-moving party. Marquis v. City of Spokane, 130 Wn.2d 97, 105, 922 P.2d 43 (1996). But where reasonable minds could reach only one conclusion from the admissible facts in evidence, summary judgment is proper. Haubry v. Snow, 106 Wn.App. 666, 670, 31 P.3d 1186 (2001).
¶ 15 To defeat an employer's motion for summary judgment in an employment discrimination case, an employee "must do more than express an opinion or make conclusory statements"; she must establish "specific and material facts" to support each element of her prima facie case. Marquis, 130 Wash.2d at 105, 922 P.2d 43. Although federal employment law cases are a "source of guidance" when construing the provisions of WLAD, we bear in mind that such cases are not binding precedent and that we are free to adopt only "those theories and rationale[s] which best further the purposes and mandates of our state statute." Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 361-62, 753 P.2d 517 (1988). Short has not met her burden here.
¶ 16 First, Short asserts that the superior court erred in granting summary judgment to the District and in dismissing her "religious discrimination" and religious "failure-to-accommodate" claims, which she had pleaded as Counts I and II of her amended
¶ 17 As we describe later in this opinion, Short essentially twice briefed a religious discrimination claim based on a "failure-to-accommodate" theory of liability. But our Supreme Court, our legislature, and the Washington State Human Rights Commission (HRC) have not formally recognized such a claim under WLAD. Declining to recognize such a claim in the absence of legislative or administrative recognition, we hold that the superior court did not err in dismissing Counts I and II of Short's amended complaint.
¶ 18 Short purports to assert her "religious discrimination" and her religious "failure-to-accommodate" claims separately, as if they represent discrete claims under WLAD. Short relies on our Supreme Court's decision in Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57, 837 P.2d 618 (1992), to set forth the prima facie elements for her "religious discrimination" claim under WLAD. She then cites a federal case
¶ 19 Although the District did not originally contest Short's reliance on Hiatt or her ability to assert a "religious discrimination" claim under WLAD,
¶ 20 Federal courts have long recognized that claims for religious discrimination under Title VII can be asserted under several different theories of liability, including disparate treatment, hostile work environment, and failure-to-accommodate religious beliefs. See, e.g., Peterson v. Hewlett-Packard Co., 358 F.3d 599, 603, 606 (9th Cir.2004); Cohen-Breen v. Gray Television Group, Inc., 661 F.Supp.2d 1158, 1167 (D.Nev.2009).
¶ 21 The Hiatt opinion has caused some confusion for this case; and our Supreme Court has not revisited this opinion in nearly two decades. Thus, we take this opportunity to clarify the scope of claims addressed in the Hiatt opinion. In Hiatt, the Supreme Court set forth the prima facie elements and burden-shifting scheme for a particular type of religious discrimination claim based on a "failure-to-accommodate" theory of employer liability. Hiatt, 120 Wash.2d at 64-65, 837 P.2d 618. Under federal law, such claims follow a two-part burden-shifting scheme.
¶ 22 The Washington Supreme Court broadly referred to the claim at issue in Hiatt as a "religious discrimination"
¶ 23 In Hiatt our Supreme Court had the opportunity to adopt the federal standard and to recognize a religious "failure-to-accommodate" claim under WLAD
¶ 24 The Hiatt Court also noted that our state legislature enacted WLAD in 1949,
¶ 25 Nevertheless, the Hiatt Court suggested that the existing provisions of WLAD might implicitly require accommodation of employees' religious beliefs and practices, noting that this was an "important and complex question" that could have "constitutional implications." Hiatt, 120 Wash.2d at 63, 837 P.2d 618. The Court then declined to address this issue of first impression under WLAD without adequate briefing from the parties. Hiatt, 120 Wash.2d at 64, 837 P.2d 618. Because our Supreme Court expressly left the question of implicit religious accommodation unanswered, we asked the parties in the instant appeal to provide supplemental briefing on this issue.
¶ 26 We recognize that some states have interpreted their state antidiscrimination statutes to include an implied religious "failure-to-accommodate" claim, even where their statutes do not expressly impose a religious duty-to-accommodate requirement.
¶ 27 We agree with the Wisconsin Supreme Court's analysis of the protections afforded under its state statute, which, like WLAD, was enacted before Title VII and had not been amended or interpreted to include a more recent definition of "religion" beyond the undefined term "creed," provided in the original statute:
American Motors Corp. v. Dep't of Indus., Labor & Human Relations, 101 Wis.2d 337, 348, 351, 305 N.W.2d 62 (1981), abrogated on other grounds by Lindas v. Cady, 150 Wis.2d 421, 441 N.W.2d 705 (1989).
¶ 28 In reaching this conclusion, we acknowledge the difficult situation in which the District may have placed Short by requiring her to "lie or withhold vital information" from O'Brien. CP at 69. But because there has been virtually no legislative or administrative action clarifying the religious discrimination provisions of WLAD since its promulgation in 1949, there is little guidance for determining legislative intent in this context. Accordingly, we conclude that, where government branches tasked with establishing public policies relating to WLAD have remained silent, despite sweeping changes at the federal level, we cannot judicially promulgate legislation or administrative regulations to fill this void. Short fails to prove that there is currently a cognizable claim for religious discrimination based on a failure-to-accommodate theory under WLAD; and we decline to adopt one judicially without further guidance or action from our legislature or the HRC. Therefore, we hold that the superior court did not err in dismissing counts I and II of Short's amended complaint on summary judgment.
¶ 29 Because Short has failed to establish a legally-recognizable religious discrimination claim based on a failure-to-accommodate theory of liability under WLAD, her only remaining claim is her retaliation claim under WLAD. She argues that the superior court erred in granting summary judgment to the District on this claim because she presented evidence sufficient to establish a prima facie case of retaliation and the parties disputed several issues of material fact. Again, we disagree.
¶ 30 We apply the same federal McDonnell Douglas burden-shifting scheme to retaliation claims that our Supreme Court adopted in Hill v. BCTI Income Fund-I
¶ 31 If, however, the employee succeeds in establishing a prima facie case, a "`legally mandatory, rebuttable presumption'" of retaliation temporarily takes hold, and the burden shifts to the employer to produce admissible evidence of a legitimate, nonretaliatory reason for its adverse employment action. Hill, 144 Wash.2d at 181, 23 P.3d 440 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 n. 7, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)); Renz, 114 Wash.App. at 618, 60 P.3d 106. If the employer fails to meet its burden, the employee is entitled to an order establishing liability as a matter of law because no issue of fact remains in the case. Hill, 144 Wash.2d at
¶ 32 If the employer provides such legitimate nonretaliatory reason, then the burden shifts back to the employee to show that the employer's reason is actually pretext for what, in fact, was a retaliatory purpose for its adverse employment action. Grimwood, 110 Wash.2d at 364, 753 P.2d 517; Renz, 114 Wash.App. at 618-19, 60 P.3d 106. If the employee fails to make this showing, however, the employer is entitled to judgment as a matter of law. Hill, 144 Wash.2d at 182, 23 P.3d 440; Renz, 114 Wash.App. at 619, 60 P.3d 106.
¶ 33 WLAD forbids an employer to discharge or otherwise to discriminate against an employee in retaliation for her "oppos[ing] any practices forbidden by this chapter" or for filing a charge, testifying, or assisting in a discrimination proceeding. RCW 49.60.210(1); Milligan, 110 Wash.App. at 638, 42 P.3d 418. To establish a prima facie case of retaliation, an employee must show that (1) she engaged in a statutorily protected activity, (2) her employer took adverse employment action against her, and (3) there is a causal link between the activity and the adverse action. Milligan, 110 Wash. App. at 638, 42 P.3d 418.
¶ 34 The District contends that Short's retaliation claim is "meritless" because she did not engage in a statutorily protected activity, and she did not suffer any adverse employment action. Br. of Resp't at 15. We agree with the District's latter argument.
¶ 35 To prove a statutorily protected activity, it is not necessary that the employer's challenged conduct be unlawful. Renz, 114 Wash.App. at 619, 60 P.3d 106. "`[A]n employee who opposes employment practices reasonably believed to be discriminatory is protected by the `opposition clause' whether or not the practice is actually discriminatory.'" Renz, 114 Wash.App. at 619, 60 P.3d 106 (emphasis added) (internal quotation marks omitted) (quoting Graves v. Dep't of Game, 76 Wn.App. 705, 712, 887 P.2d 424 (1994)). Thus, Short's inability to prove her religious discrimination claim based on a failure-to-accommodate theory is not dispositive of her retaliation claim. Instead, she can recover on her retaliation claim as long as she reasonably believed that the District's conduct violated the law. See Renz, 114 Wash.App. at 619, 60 P.3d 106; see also Ellis v. City of Seattle, 142 Wn.2d 450, 460, 13 P.3d 1065 (2000) (requiring only an "objectively reasonable belief").
¶ 36 Washington courts have also concluded that employee complaints to a supervisor may constitute a statutorily protected activity. See e.g., Estevez v. Faculty Club of the Univ. of Wash., 129 Wn.App. 774, 798-99, 120 P.3d 579 (2005). Thus, we assume, without deciding, that for purposes of this appeal, Short engaged in a statutorily protected activity when she informed Bria that she would not lie or withhold vital information from O'Brien in violation of her religious beliefs.
¶ 37 Because Short has failed to show that she was constructively discharged, she has failed to meet her burden of establishing an adverse employment action. A constructive discharge occurs "where an employer deliberately makes an employee's working conditions intolerable, thereby forcing the employee to resign." Sneed v. Barna, 80 Wn.App. 843, 849, 912 P.2d 1035 (1996). Courts have applied this doctrine where an employer has allegedly engaged in illegal discrimination or retaliation for protected conduct. Barrett v. Weyerhaeuser Co. Severance Pay Plan, 40 Wn.App. 630, 632-33, 700 P.2d 338 (1985).
¶ 38 To establish constructive discharge, an employee must show (1) a deliberate act by the employer that made her working conditions so intolerable that a reasonable person in her shoes would have felt compelled to resign, and (2) that she resigned because of her working conditions and not for some other reason. Nielson v. AgriNorthwest, 95 Wn.App. 571, 578, 977 P.2d 613 (1999); Washington v. Boeing Co., 105 Wn.App. 1, 15, 19 P.3d 1041 (2000). Whether working conditions have risen to an
¶ 39 Short cannot support a constructive discharge claim because she has failed to demonstrate sufficient "aggravating circumstances" or a "continuous pattern of discriminatory treatment" that occurred after her opposition activity (refusing Bria's direction to lie or to withhold information from O'Brien during the February 2008 meetings).
¶ 40 To prove the events that occurred during or after the February 2008 meetings, which constituted the relevant time period for Short's constructive discharge claim, Short produced evidence that Bria may have (1) offered Short a transfer within the District "at no loss of pay," (2) yelled at Short and threatened that her reputation would be "ruined," (3) threatened to place her under a "hostile supervisor," and (4) told other employees that Short was a "lying b*tch" and that she was "angling for [O'Brien's] job." CP at 175, 185, 258. With the exception of Bria's latter statements made to third party employees, the remainder of this offensive conduct occurred on a single day — February 21.
¶ 41 For purposes of summary judgment, we take the evidence in the light most favorable to Short and assume that Bria engaged in the hostile conduct that Short asserts. But because this conduct occurred over such a short time period, this evidence does not rise to a level that a reasonable person would consider "intolerable." For example, an employee's frustration, and even direct or indirect negative remarks, are not enough to show intolerable working conditions. Crownover v. State ex. rel. Dep't of Transp., 165 Wn.App. 131, 149, 265 P.3d 971 (2011), review denied, 173 Wn.2d 1030, 274 P.3d 374 (2012). Similarly, the Ninth Circuit has recognized that a "`single isolated instance'" of discrimination is generally insufficient as a matter of law to support a finding of constructive discharge. Watson v. Nationwide Ins. Co., 823 F.2d 360, 361 (9th Cir.1987) (quoting Nolan v. Cleland, 686 F.2d 806, 813 (9th Cir.1982)). Treating single acts or very short periods of hostility as insufficient to establish constructive discharge is consistent with the principle that our antidiscrimination law policies are best served when the parties attempt to remediate discrimination while continuing in their existing employment relationships, if possible. See Watson, 823 F.2d at 361.
¶ 42 We find the Ninth Circuit's reasoning persuasive here. Because Short did not introduce evidence of aggravating circumstances or a pattern of discriminatory treatment after the February 2008 meetings, she has failed to establish an adverse employment action by constructive discharge. Accordingly, we hold that the superior court did not err in granting the District summary
¶ 43 We affirm.
We concur: WORSWICK, C.J., and QUINN-BRINTNALL, J.
Hiatt, 120 Wash.2d at 62-63, 837 P.2d 618 (emphasis added) (internal quotation marks omitted) (quoting 42 U.S.C. § 2000e(j)).