BROWN v. SCOTT PAPER WORLDWIDE COMPANY (1998)

Beverly Brown appeals the dismissal on summary judgment of her claim of disability discrimination against her employer, Scott Paper Worldwide Company (Scott Paper) and against six of its managers, and her claims of sexual discrimination and sexual harassment against the six managers individually (the managers).¹  Brown contends that the trial court erred in ruling as a matter of law (1) that the evidence was insufficient to establish that the defendants had notice of her alleged disability before Scott Paper took the adverse employment action and (2) that the managers could not be sued individually for employment discrimination.   After the summary judgment ruling, Brown's claims of sexual harassment and sexual discrimination against Scott Paper were tried to a jury, which rendered a defense verdict.   Brown does not appeal the judgment in favor of Scott Paper that followed the jury verdict.   The managers contend that even if the trial court erred by dismissing the sexual discrimination and harassment claims against them, under the doctrines of res judicata and collateral estoppel the jury verdict finding Scott Paper not liable for sexual harassment and discrimination bars Brown from making identical claims against the managers.   We affirm the summary dismissal of the disability discrimination claim, but reverse the summary dismissal of the sexual discrimination and harassment claims against the managers individually.   Individual managers who meet the statutory definition of employers may be held liable for their own acts in violation of RCW 49.60.   Brown is not barred from proceeding with her sexual discrimination and harassment claims against the managers by the doctrines of res judicata or collateral estoppel;  given the evidence, the jury instructions and the parties' respective theories at trial, the jury could have determined that some or all of the managers engaged in sexual discrimination or harassment, thereby damaging Brown, but that Scott Paper was not liable because it took reasonably prompt and adequate corrective action.

FACTS

Beverly Brown began to work for the Scott Paper mill in Everett, Washington, in 1979.   Over the years, Brown progressed through the seniority system at the mill.   Her employment was not without problems, however.   Brown filed three administrative charges of sexual discrimination with the EEOC during her employment with Scott Paper, none of which resulted in a “reasonable cause” finding by that agency.   In 1991, Brown was temporarily disqualified from advancement in the paper mill on alleged grounds of her lack of technical knowledge and leadership skills, her inability to work as a team member, and her admitted overreaction to job-improvement counseling in response to which she alleged that certain Scott Paper managers were “setting her up” for termination.   Scott Paper rescinded that disqualification after Brown filed a grievance with her union.

In June of 1994, Brown was suspended for kicking a coworker.   Following an investigation, Scott Paper offered to consider returning Brown to work if she acknowledged her difficulties in controlling her anger and emotions, coping with job stress, and working as a member of a team, and developed a plan to address those difficulties.²  In response, Brown submitted a letter from Donald Uslan, a psychotherapist and rehabilitation counselor with whom Brown consulted after her suspension, proposing a 6-month plan of psychotherapy, biofeedback, medical evaluation, and anger management therapy with his office.   After meeting with Brown to evaluate her efforts to address her difficulties, Scott Paper rejected Brown's proposed plan and converted her suspension into a discharge, stating:

Mr. Uslan's counseling plan, developed at the request of your attorney, is excellent.  [H]owever, ․ Mr. Uslan is not the one who will have to interact with Scott employees and managers in the future.   You are the one that had to acknowledge your problems and develop a plan to correct them to avoid further disruptions in the mill.   Unfortunately, we did not hear any evidence that you had a plan for successful reentry into the work place.   You could not articulate the significant problems that lead you to conflict and you continue to minimize the assault both in terms of severity and through fabrication of provocation.   This continuing deflection of fault calls into question the sincerity of your apology and does not give the Company any assurance unprovoked assault or other interpersonal problems will not occur again in the future.

You have failed to convince the company per the terms of [the offer to return to work] and the Suspension is converted to Discharge.

Clerk's Papers at 84.   Scott Paper further stated that Brown's continued denial of wrongdoing and refusal to acknowledge her inability to handle stress, control her anger and emotions, and work as a team member indicated her “inability to understand that [she had] significant problems” in those areas and/or that she was misrepresenting her role in the assault.  Id. Brown filed a grievance with her union and, following an arbitrator's decision, was returned to work as a machine tender, her assigned position based on the seniority system in place.

Several months later, Brown filed suit alleging, inter alia, discrimination on the basis of sex and disability and sexual harassment against Scott Paper and six of its managers individually.   The defendants moved for summary judgment as to the disability discrimination claim, contending that there were no facts to support that cause of action.   The managers moved for summary judgment as to the sexual harassment and sexual discrimination claims, contending that those claims, as well as the claim for disability discrimination, were not properly brought against them because individuals are not “employers” under Washington's Law Against Discrimination, Ch. 49.60 RCW. The court granted summary judgment dismissing Brown's disability discrimination claim, concluding that there was no issue of fact as to whether the defendants knew or should have known that Brown suffered from a condition defined as a handicap.   The court also granted summary judgment dismissing Brown's claims under RCW 49.60 against the individually-named managers.   Brown's sexual discrimination and sexual harassment claims against Scott Paper went to trial, resulting in a jury verdict for the defense.³

Brown appeals the summary judgment rulings.   We apply the usual standard of review of summary judgments.   See, e.g., Wilson v. Steinbach, 98 Wash.2d 434, 437, 656 P.2d 1030 (1982);  Guile v. Ballard Community Hosp., 70 Wash.App. 18, 23, 851 P.2d 689, review denied, 122 Wash.2d 1010, 863 P.2d 72 (1993).

DISCUSSION

I

Brown challenges the trial court's dismissal of her claims of sexual discrimination and harassment against the individual managers named in her complaint.   The managers moved for summary dismissal of those claims on the ground that they were not “employers” as required by RCW 49.60.180 and, therefore, could not be held personally liable.

RCW 49.60.180 provides that it is an unfair practice for any “employer” to discharge any person from employment or discriminate against any person in the terms of employment because of sex or the presence of sensory, mental, or physical disability.  RCW 49.60.180(2);  (3).   As defined by the act, an “employer” is “any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons[.]”  RCW 49.60.040(3).   “Person” includes one or more individuals;  it also includes, inter alia, any manager, agent or employee.  RCW 49.60.040(1).   Brown contends that the eight-employee threshold requirement means only that the workplace must employ eight or more employees, not that the “person” being held liable is required to employ eight or more employees.   The managers argue in response that because only those employers employing eight or more persons can be liable for employment discrimination under RCW 49.60.180, managers and other individual employees cannot be employers under that section because it is the employer, and not its managers or other individual employees, which does the employing.   The managers also point out that under corresponding federal law, individual managers or supervisors are not employers subject to liability.   E.g., Miller v. Maxwell's Int'l, Inc., 991 F.2d 583, 587-88 (9th Cir.1993), cert. denied, 510 U.S. 1109, 114 S.Ct. 1049, 127 L.Ed.2d 372 (1994).   Under Grimwood v. University of Puget Sound, Inc., 110 Wash.2d 355, 361-62, 753 P.2d 517 (1988) federal cases construing federal statutes prohibiting discrimination in employment may provide persuasive although not binding authority with respect to the construction of corresponding provisions in the Washington statute, where no different meaning is apparent from the language of the Washington statute.

We find the language of RCW 49.60.040(3) defining “employer” to be ambiguous.   Read literally as punctuated, it would appear to be the “person acting in the interest of an employer, directly or indirectly,” who must employ eight or more persons, rather than the employer itself.   But this literal reading would render the phrase “any person acting in the interest of an employer, directly or indirectly” superfluous and without any practical meaning, in that, in virtually every instance of which we can conceive, it is, indeed, the employer, and not its managers or other individual employees, which does the employing.   Thus, the managers' proposed construction would violate that most elementary of rules of statutory construction, that courts should avoid leaving any statutory language without effect.   E.g., Becker v. Pierce Cy., 126 Wash.2d 11, 17, 890 P.2d 1055 (1995).   We can conceive of no reason why the Legislature would have included “any person acting in the interest of an employer, directly or indirectly” in its definition of “employer” if it had not intended to extend liability to such “person” (as further defined in RCW 49.60.030(1)) for his or her conduct in violation of RCW 49.60.180 when it amended the chapter in 1973 to create private causes of action.⁴

Our construction is buttressed by our Supreme Court's recent opinion in Griffin v. Eller, 130 Wash.2d 58, 922 P.2d 788 (1996).   There, a legal secretary sued her attorney employer, a sole-practitioner who had never employed eight or more persons, for sexual discrimination.   The Griffin court held that employers of fewer than eight employees are simply exempt from the provisions of Ch. 49.60, Griffin, 130 Wash.2d at 64, 922 P.2d 788, and further held that this application did not violate the State's privileges and immunities clause, Const. art. I, § 12.  Griffin, 130 Wash.2d at 70, 922 P.2d 788.   In the course of the constitutional ruling (applying the rational basis test), the court reasoned:

The Legislature may have had many reasons to adopt the small employer exemption in RCW 49.60.   Certainly the State has a substantial interest in the well-being of small business with regard to the state economy, tax base, and opportunities for employment.   Approximately 75 percent of business establishments in Washington have fewer than nine employees;  however, they employ only about 17.5 percent of the private employee work force.   The Legislature could well have concluded burdening so many employers to benefit so few employees was not, on balance, of sufficient public benefit to offset the burden.

Griffin, 130 Wash.2d at 68, 922 P.2d 788 (citation omitted).   Thus, it would appear that the Legislature's rational basis for the eight-employee threshold may have been to protect small employers.   Such purpose would not be furthered by providing protection from law suits to managers or other individual employees “acting in the interest of an employer, directly or indirectly” who are employed by large corporations such as Scott Paper.

 The managers argue, nevertheless, that the Legislature did not intend to extend the right of private action against managers or other individual employees who may commit unfair practices, even if they are acting in the interest of an employer directly or indirectly, because the act as a whole is directed at employers as entities, who may in turn be liable for the acts of their managers and individual employees if they know or should have known of the unfair practice and do not take prompt and reasonable steps to remedy the problem.   We agree that the act must be considered as a whole, to ensure that all parts of the statutory scheme operate in harmony with judicial construction of any given ambiguous provision.   See, e.g., State v. Malone, 106 Wash.2d 607, 610-11, 724 P.2d 364 (1986);  Whatcom Cy. v. City of Bellingham, 128 Wash.2d 537, 546, 909 P.2d 1303 (1996).   We also agree that in the appropriate circumstances the act provides for liability of employers for the acts of managers and other individual employees.   But contrary to the managers' argument, the act specifically provides for liability of “persons” who do not fit the definition of “employer” but who “aid, abet, encourage, or incite the commission of any unfair practice, or [who] attempt to obstruct or prevent any other person from complying with the provisions of [Ch. 49.60] or any order issued thereunder.”  RCW 49.60.220.   It would be a strange construction of the act for the court to conclude that managers who are acting in the interest of an employer directly or indirectly and who, thus, are included as employers under RCW 49.60.040(3), nevertheless cannot be held individually liable for their own acts except by an aiding and abetting theory under RCW 49.60.220.

In any event, subsection .220 illustrates that the Legislature did not intend to preclude individual liability of managers and other individual employees for their own acts.   Although Brown did not sue the managers on an aiding and abetting theory, we deem this to be irrelevant, in light of the definition of “employer” contained in the act, and in light of the managers' concession in their responsive brief for this appeal that they were at all relevant times employed by Scott Paper as managers and at all relevant times acted as agents for Scott Paper.   See Respondents' Brief at 1-2.

 In sum, the trial court erred in dismissing Browns claims for sexual discrimination and sexual harassment against the managers on the ground that Washington law permits recovery, if at all, only against Scott Paper and not against its managers “acting in the interest of [Scott Paper], directly or indirectly” as provided by RCW 46.60.040(3).

II

The managers contend that even if the trial court erred in ruling that they could not be sued individually, the jury verdict finding Scott Paper not liable for sexual discrimination and harassment precludes Brown's identical claims against the managers individually.   Specifically, the managers argue that “[b]ecause Scott Paper can only act through its employees, and has vicarious liability for its employees' acts, the jury's determination that Scott Paper did not discriminate against Brown effectively determines that Scott Paper's employees did not discriminate against Brown.”   Respondents' Brief at 43.   In support, the managers cite the Restatement (Second) of Judgments § 51:

If two persons have a relationship such that one of them is vicariously responsible for the conduct of the other, and an action is brought by the injured person against one of them, ․

(1) A judgment against the injured person that bars him from reasserting his claim against the defendant in the first action extinguishes any claim he has against the other person ․ unless:

(a) The claim asserted in the second action is based upon grounds that could not have been asserted against the defendant in the first action;  or

(b) The judgment in the first action was based on a defense that was personal to the defendant in the first action.

Based on the record for this appeal, we agree with the managers that the claims against them are based on the same grounds that were asserted at the jury trial against Scott Paper.   The problem with the managers' contention that Brown is precluded from proceeding against them by the jury verdict and her failure to appeal the ensuing judgment in favor of Scott Paper is that it is impossible to determine from the record on appeal ⁵ whether the judgment against Brown was based on a defense that was personal to Scott Paper, namely, that Scott Paper took prompt and adequate action to remedy the acts and omissions of its managers.

In her complaint, Brown alleged that the six managers and other male employees of Scott Paper subjected her to a work environment that was hostile to her gender.   She alleged that the six managers and other male employees engaged in objectionable conduct, including continuously subjecting her to unwanted sexual overtures, lewd sexual discussions, jokes and comments, and unwanted touching of a sexual nature.   Brown alleged that Scott Paper was or should have been aware of the sexual harassment and failed to take effective action against male managers and other male employees at the plant who created a hostile work environment for Brown on account of her gender.   She alleged that on at least one occasion Scott Paper took adverse employment actions against her because she rebuffed the sexual advances of a superior (not one of the named managers).   Brown alleged that she was constantly subjected to undue harassment, discipline and reprimands by her superiors which were not leveled against her male coworkers.   Brown alleged that she complained to her superiors about the harassment and disparate treatment and was retaliated against by poor evaluations, reprimands from supervisors, less favorable working conditions and, ultimately, termination from employment.   Brown alleged that Scott Paper failed to exercise ordinary care in supervising its male managers and other male employees by failing to take effective action to stop the harassment, intimidation and degradation.   Although Brown was precluded by the summary judgment ruling from asking the jury to find the six managers liable for their own conduct, she was not limited in her presentation of evidence in support of the allegations in her complaint, and in her ability to argue to the jury that the conduct of the six managers was unlawful and established liability of Scott Paper.   Each of the six managers testified at the trial and was subject to full cross examination regarding the allegations about his own conduct giving rise to the complaint.   Brown presented sufficient evidence from which a rational trier of fact could have determined that any or all of the allegations in her complaint were true.

Scott Paper defended on several theories:  any sexual conduct that occurred was not unwelcome because it was initiated and encouraged by Brown herself;  any harassment did not affect the terms or conditions of Brown's employment because Brown willingly participated in crude sexual jokes and discussions with her coworkers and she habitually used obscene language in the workplace and initiated discussions about sexual topics, boasting to coworkers about her sexual exploits;  Brown failed to notify upper-level management that she was being subjected to unwanted conduct of a sexual nature by lower-level managers until 1995, and once she finally complained at the appropriate managerial level, Scott Paper took prompt remedial action that was reasonably calculated to remedy the unwanted conduct.   Scott Paper presented sufficient evidence in support of each of its defense theories from which a rational trier of fact could determine that any or all of them were true.

Insofar as here relevant, the jury was instructed as follows:

Defendant Scott Paper Worldwide Company is a corporation.   A corporation can act only through its officers and employees.   Any act or omission of an officer, manager, supervisor or employee is the act or omission of the corporation.

An employer may be liable for the acts and omissions of its officers and employees even when those acts or omissions violate the employer's policy, unless the employer takes prompt and adequate action to remedy such acts or omissions.

For purposes of the Plaintiff's claim of a hostile work environment created by sexual harassment, you will be instructed separately as to the conditions under which the acts of employees may be imputed to the Defendant corporation.

Clerk's Papers at 300 (Instruction 3).

Sexual harassment constitutes illegal discrimination in the terms or conditions of employment because of sex.   Sexual harassment includes verbal or physical workplace conduct of a sexual nature that was unwelcome, gender motivated, and pervasive enough that a reasonable woman would find that it affects the terms or conditions of her employment.   Unwelcome sexual conduct constitutes sexual harassment when it creates an intimidating, hostile, or offensive working environment, even if it leads to no tangible or economic job consequence.

Clerk's Papers at 303 (Instruction 6).

The jury was further instructed that the elements of a sexual harassment claim are:

(1) that [Brown] was subjected to harassment because of her sex;  (2) that the harassment was unwelcome;  (3) that the harassment affected the terms and conditions of her employment;  and (4) that the management of the defendant knew or should have known of the harassment and failed to take reasonably prompt and adequate corrective action.

Clerk's Papers at 304 (Instruction 7).   The jury was further instructed that:

In order for you to find that management of the defendant should have known of the harassment, you must find that the harassment was so pervasive in the workplace that management should have been aware of it.

In determining whether management should have known of the harassment, it is also relevant to consider:  (a) [w]hether defendant had established a clear, written policy prohibiting sexual harassment;  (b) [w]hether plaintiff was aware of that policy and understood to whom she should complain if she were to suffer from sexual harassment;  (c) [w]hether the manager to whom plaintiff was supposed to complain under the policy was the alleged harasser;  and (d) [w]hether the defendant enforced this policy effectively.

Clerk's Papers at 308 (Instruction 11).

The jury entered a general verdict in favor of Scott Paper.   Based on the evidence and the parties' respective trial theories, the jury could have found in favor of Scott Paper because (1) Brown failed to persuade the jury that she was subjected to sexual discrimination and harassment at all, by anyone, including the six managers;  or (2) Scott Paper persuaded the jury that any sexual conduct in the workplace was welcomed by Brown, even initiated by her, so that she was not subjected to a hostile work environment based on her gender;  or (3) Brown persuaded the jury that she was subjected to sexual harassment, including harassment by the six managers, but Scott Paper persuaded the jury that she failed to complain at the appropriate managerial level in accord with Scott Paper's clear written policies, which she fully understood, until 1995, and when she finally did complain at the appropriate managerial level, Scott Paper took prompt and adequate action.   Under the first and second possibilities, Brown would be precluded from proceeding with her claim against the managers by the doctrines of res judicata and collateral estoppel;  but under the third possibility Brown's claims against the six managers would survive because the defense of prompt and adequate action is personal to Scott Paper, its liability being of a vicarious nature.

 Res judicata, or claim preclusion, bars the relitigation of claims and issues that were litigated, or might have been litigated, in a prior action.   Loveridge v. Fred Meyer, Inc., 125 Wash.2d 759, 763, 887 P.2d 898 (1995).   Application of the doctrine requires identity between a prior judgment and a subsequent action as to (1) persons and parties, (2) cause of action, (3) subject matter, and (4) the quality of persons for or against whom the claim is made.  Id. Collateral estoppel, or issue preclusion, prevents relitigation of an issue after the party estopped has already had a full and fair opportunity to present its case.  Hanson v. City of Snohomish, 121 Wash.2d 552, 561, 852 P.2d 295 (1993).   The requirements for application of the doctrine are:

(1) the issue decided in the prior adjudication must be identical with the one presented in the second;  (2) the prior adjudication must have ended in a final judgment on the merits;  (3) the party against whom the plea is asserted was a party or in privity with a party to the prior adjudication;  and (4) application of the doctrine must not work an injustice.

Hanson, 121 Wash.2d at 562, 852 P.2d 295 (footnote omitted).

As our Supreme Court has noted:  “Res judicata [claim preclusion] and collateral estoppel [issue preclusion] [are] kindred doctrines designed to prevent relitigation of already determined causes and curtail multiplicity of actions and harassment in the courts, [and] are at times indistinguishable and frequently interchangeable.”  Bordeaux v. Ingersoll Rand Co., 71 Wash.2d 392, 395, 429 P.2d 207 (1967).   That is so in this case.   If it were true, as argued by the managers, that the jury necessarily determined that none of the managers engaged in sexual discrimination or harassment of Brown, or that any sexual conduct on their parts was welcomed by Brown, even initiated by her, we would have no difficulty in applying either doctrine.   Although the managers were no longer parties by the time of the jury trial, the employer-employee relationship satisfies the requirement of res judicata that the “quality” of the persons against whom Brown brought the claims must be identical, where the employer's liability is premised entirely on the action of its employees.   Kuhlman v. Thomas, 78 Wash.App. 115, 121-22, 897 P.2d 365 (1995).   Brown's claims against the managers are virtually identical to her claims against Scott Paper.   Substantially the same evidence supports the two actions.   The two suits involve the alleged infringement of the same right, to be free from sexual discrimination and harassment in the workplace.   The two suits arise out of the same transactional nucleus of facts.   See Kuhlman, 78 Wash.App. at 122, 897 P.2d 365.

 But the requirement for identical causes of action also requires the reviewing court to consider whether rights or interests established in the prior judgment would be destroyed or impaired by prosecution of the second action.  Kuhlman, 78 Wash.App. at 122, 897 P.2d 365.   Similarly, the doctrine of collateral estoppel requires the court to consider whether application of the doctrine would work an injustice, as well as identity of issues, privity of parties and a final judgment on the merits.  Hanson, 121 Wash.2d at 562, 852 P.2d 295.   Here, no rights or interests of Scott Paper established in the final judgment would be destroyed or impaired by prosecution of the second action.   Moreover, the six managers are not immune from liability for their own unlawful acts, if any, performed in the interests of their employer, directly or indirectly.   Thus, they cannot benefit from either preclusion doctrine unless they can establish that the jury necessary rendered its judgment in favor of Scott Paper based on a determination that the managers did not engage in unlawful conduct.   This, they cannot do, in light of the general verdict and in light of the parties' respective theories at trial.

The managers argue, without citation to authority, that they would be entitled to the same defenses at trial as Scott Paper, at any new trial.   At first blush, this argument has some facial appeal, in spite of the lack of citation to authority.   Brown has not pleaded an aiding and abetting theory of liability against the managers.   Rather, she argues that they, too, are “employers” as defined by RCW 49.60.040(3).   Why, then, the managers may well ask, are they not entitled to all the same defenses as were raised by Scott Paper?   The answer lies in the differing natures of their potential liability.

 Scott Paper's potential liability for the allegedly unlawful conduct of its six managers was vicarious and could be avoided by establishing that it took prompt and adequate corrective action reasonably calculated to end the harassment, upon learning that Brown was being sexually harassed by her supervisors.  Glasgow v. Georgia-Pacific Corp., 103 Wash.2d 401, 407-08, 693 P.2d 708 (1985).   Where supervisors or managers are themselves the harassers, the harassment is imputed to the employer, but liability may still be avoided if the employer shows either that the plaintiff failed to complain to higher managerial supervisory personnel, so that the employer did not know about the harassment by its lower-level supervisors, or that the plaintiff failed to show that the harassment was of such a pervasive nature as to create an inference of knowledge.   Even where knowledge is shown or inferred, the employer may nevertheless still escape liability by showing that it took prompt remedial action of such a nature as to end the harassment.  Glasgow, 103 Wash.2d at 407, 693 P.2d 708;  accord Delahunty v. Cahoon, 66 Wash.App. 829, 836-37, 832 P.2d 1378 (1992).   These “liability escape hatches” are available to the employer whose potential liability is of a vicarious nature because RCW 49.60 “does not impose a duty on the employer to maintain a pristine working environment.   Rather, it imposes a duty on the employer to take prompt and appropriate action when it knows or should know of co-employees' conduct in the workplace amounting to sexual harassment.”  Glasgow, 103 Wash.2d at 406, 693 P.2d 708 (quoting Continental Can Co. v. Minnesota, 297 N.W.2d 241, 249 (Minn.1980)).   No such “escape hatches” are available to the manager who himself fits the definition of an “employer” and who himself engages in the unlawful conduct, for he cannot claim lack of knowledge of the very unlawful conduct in which he engages;  neither can he claim that the plaintiff failed to show that he failed to take prompt and effective remedial action to cure his own unlawful acts.   His only defenses (in a case where no aiding and abetting theory is pleaded or proved pursuant to RCW 49.60.220) are that he did not, in fact, engage in the unlawful conduct, or that his conduct was not unwelcome, or that he was not an “employer” under the act, i.e., that he was not acting in the interests of the employer, directly or indirectly, and accordingly did not violate RCW 49.60.180, which provides that it is an unfair practice for any “employer” to discriminate against any person in the terms of employment because of sex or the presence of a sensory, mental or physical disability.⁶

In sum, Brown is not precluded from trial of her claims for sexual harassment and discrimination against the six managers.

III

Brown contends that the trial court erred in dismissing her disability discrimination claims based on its determination that she had failed to show that the defendants had notice of her disability.   We find no error.

Under Washington's Law Against Discrimination, in order to establish a prima facie case of disability discrimination, the plaintiff must demonstrate:  (1) the existence of a disability;  and (2) discrimination by the employer because of that disability.  RCW 49.60.180(2).   A person will be considered to be “handicapped” [now “disabled” ⁷ ] by a sensory, mental or physical condition if he or she is discriminated against because of the condition and the condition is abnormal.  WAC 162-22-040(1)(a).   The existence of a claim is, therefore, dependent on a finding of discrimination.

 The “discrimination” element of disability discrimination is met if the employee demonstrates that the employer took action against the employee because of his or her condition (disparate treatment) or failed to take steps reasonably necessary to accommodate the employee's disability (failure to accommodate).  Doe v. Boeing Co., 121 Wash.2d 8, 17, 846 P.2d 531 (1993).   Under either the disparate treatment theory or the failure to accommodate theory, the plaintiff bears the burden of proving that the employer had notice of the disability.  Hume v. American Disposal Co., 124 Wash.2d 656, 671-72, 880 P.2d 988 (1994), cert. denied, 513 U.S. 1112, 115 S.Ct. 905, 130 L.Ed.2d 788 (1995);  Goodman v. Boeing Co., 127 Wash.2d 401, 408, 899 P.2d 1265 (1995).

 In order to satisfy the “notice” element, an employee is not required to tell the employer about the full nature and extent of the disability, only that a disability requiring accommodation existed.  Stevens v. City of Centralia, 86 Wash.App. 145, 156, 936 P.2d 1141, review granted, 133 Wash.2d 1001, 943 P.2d 663 (1997) (citing Goodman, 127 Wash.2d at 408, 899 P.2d 1265).   The Washington Supreme Court has adopted the test for constructive notice set out in Kimbro v. Atlantic Richfield Co., 889 F.2d 869, 877 n. 6 (9th Cir.1989) (construing Washington law), cert. denied, 498 U.S. 814, 111 S.Ct. 53, 112 L.Ed.2d 28 (1990):  “As long as the employer is on notice that an employee suffers from a serious medical condition, it may be liable under the handicap discrimination law.”  Hume, 124 Wash.2d at 671, 880 P.2d 988.   We agree with the trial court that Brown failed to meet the burden of showing such notice.

 The defendants introduced evidence that Brown was not diagnosed as depressed until after she was terminated, that she never told anyone at Scott Paper that she was disabled until after she was terminated, that no Scott Paper employee ever expressed a belief that she might have been disabled, and that she never requested any accommodation.   Brown did not dispute this evidence.   Instead, she contended that the defendants should have known of her disability because her job performance was affected by her depression.   The evidence provided by Brown in support of this contention, however, fails to support her claim.   To rebut the summary judgment motion, Brown submitted copies of her correspondence with Scott Paper;  excerpts of testimony from Scott Paper's Personnel Manager, James Lockard, and another manager;  Lockard's and other managers' notes and memoranda detailing various meetings with Brown;  Mr. Uslan's declaration that Brown had been suffering from depression since 1991;  and her own declaration.   Nowhere in these documents is there any evidence that Brown ever told anyone at Scott Paper, before she was terminated, that she felt she had any sort of serious medical condition.   Neither is there any indication in those documents that anyone at Scott Paper perceived that Brown had a disability.   The closest thing to evidence of a disability in the materials submitted by Brown are Scott Paper's managers' statements that Brown had difficulty controlling her emotions and her anger, but these statements do not betray any recognition that Brown had a serious medical or mental problem.   Recurrent throughout the letters and deposition testimony are managers' statements that Brown was not happy on the job, had difficulty with peer relationships, did not control her anger and emotions appropriately, dealt poorly with stress, and became “paranoid” when managers attempted to talk with her about her job performance, but there was nothing to tie those symptoms to depression or any other mental disability.   Nor do Brown's statements in her letters and declaration that she felt she had been singled out, berated, harassed, discriminated against, and “set up” in any way reveal that she was disabled.

Absent evidence that Brown clearly informed her employer that she was depressed or otherwise suffering from a serious medical condition, no reasonable juror could find that Scott Paper or the six managers should have known of her alleged disability.   Her claims relating to disability discrimination were, therefore, properly dismissed.

The dismissal of Brown's disability claims against Scott Paper and the six managers is affirmed.   The dismissal of Brown's sexual discrimination and harassment claims against the six managers is reversed and those claims are remanded for trial or such other disposition as shall be consistent with this opinion.

FOOTNOTES

1.   It is undisputed that during the relevant time period each of the six individually named defendants held a managerial position at Scott Paper.   James Lockard was the Human Resources Manager of Employee Relations at the Everett plant;  the remaining individually named defendants held management positions and at all relevant times acted as agents of Scott Paper.

2.   Under the “up or out” seniority system in Brown's labor contract, Brown was required to be able to perform the tasks of the more responsible positions she would soon be in line for, which would involve added stress and require the ability to manage herself and others.

3.   The trial evidence, jury instructions and the parties' respective theories at trial will be discussed in connection with the res judicata and collateral estoppel contentions.

4.   As originally enacted, Ch. 49.60 RCW did not create a private cause of action;  it was amended to that effect by Laws of 1973, ch. 141.   In Griffin v. Eller, 130 Wash.2d 58, 922 P.2d 788 (1996) the majority rejected the reasoning of the dissenting justices, who believed that the Legislature intended the eight-employee threshold to apply only as a limitation upon the jurisdiction of the Human Rights Commission to investigate complaints and not as a limitation upon private causes of action under the 1973 amendment.   See Griffin, 130 Wash.2d at 64-64, 922 P.2d 788 (majority) and at 75-79 (Talmadge, J., dissenting).

5.   For purposes of this section of the opinion, the record on appeal consists of the complaint and answer, the jury instructions and the parties' Stipulation Regarding Trial Theories submitted at the request of this court pursuant to RAP 9.10.

6.   Compare Niece v. Elmview Group Home, 131 Wash.2d 39, 48, 929 P.2d 420 (1997) (“Where the employee steps aside from the employer's purposes in order to pursue a personal objective of the employee, the employer is not vicariously liable.”)

7.   In 1993 the Legislature substituted the term “disability” for “handicap” in the Law Against Discrimination, but the regulations accompanying the statute continue to employ the term “handicap.”   See Collings v. Longview Fibre Co., 63 F.3d 828, 835 n. 6 (9th Cir.1995) (interpreting Washington law), cert. denied, 516 U.S. 1048, 116 S.Ct. 711, 133 L.Ed.2d 666 (1996).

KENNEDY, Acting Chief Judge.

WEBSTER and ELLINGTON, JJ., concur.