Chen v. State, 86 Wn.App. 183 (Div. 2 1997)

This is a case summary of Chen v. State, 86 Wn.App. 183 (Div. 2 1997), review denied, 133 Wn.2d 1020, 948 P.2d 387 (1997). The subjects addressed herein include the following:

» FRAUD

» MOTIONS FOR RECONSIDERATION

» PROMISSORY ESTOPPEL

» SELF-EVALUATIONS

» THE MCDONNELL DOUGLAS FRAMEWORK — PRETEXT

» WRONGFUL TERMINATION

In this case, “Western State Hospital dismissed Dr. Hsi Chen after a six-month probationary period, citing poor performance. Chen sued, alleging

(1) fraud based on his reliance on the State’s representations about the probationary employment period, and

(2) discrimination.

Id. at 185 (paragraph formatting added). “The trial court granted summary judgment for the State, and Chen appeal[ed]. Because the State did not misrepresent the conditions of probation, and because Chen failed to produce evidence that the State’s reason for dismissing him was false or a mere pretext, we affirm.” Id. at 185-86.

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Chen v. State, 86 Wn.App. 183 (Div. 2 1997). — **Chen v. State, 86 Wn.App. 183 (Div. 2 1997), review denied, 133 Wn.2d 1020, 948 P.2d 387 (1997)**

case summarY – 19 PRIMARY Facts:

[1] Hsi Chen was born in Taiwan in 1925 and received his medical degree there in 1948.

[2] He became board certified in psychiatry in the United States in November 1989.

[3] The following spring, Chen applied for a psychiatrist position at Western State Hospital.

[4] Chen started at Western State in July 1990, serving as a team leader in a very difficult ward.

[5] The treatment team consisted of Chen, a psychologist, a social worker, and the nursing staff.

[6] Chen’s duties included supervising treatment and directing the psychiatric program.

[7] Dr. Dennis, Chen’s supervisor, evaluated Chen’s performance after four months and solicited comments from staff and team members.

[8] Dennis found that Chen had met the minimum requirements in three evaluation areas, and failed to meet minimum requirements in two areas.

[9] Among the various comments, Dennis noted, for example, that some staff had requested transfers.

[10] Chen meanwhile evaluated his own performance, concluding that he had exceeded the normal requirements in four areas, and met the normal requirements in the fifth area.

[11] Chen also explained specific criticisms, for example, noting that one staff member who had requested a transfer “has a reputation of being very difficult to deal with.”

[12] Dr. Dennis evaluated Chen’s performance again after six months, soliciting further comments from the team members.

[13] They expressed concerns that Chen was rigid and inflexible in his treatment style, disregarded their input, and had problems communicating in spoken English.

[14] Dennis found that Chen had met the normal requirements in three evaluation areas, met the minimum requirement in one area, and failed to meet minimum requirements in one area.

[15] Dennis did not recommend Chen for permanent employment. Western State then notified Chen that his probationary period would terminate the following day, after six months’ service.

[16] Chen sued the State, DSHS, and Western State, alleging[, inter alia,] discrimination based on age, race, and national origin under RCW 49.60 and 49.44.090.

[17] Finding that Chen had not established that the State’s reason for terminating him was a pretext or unworthy of belief, the trial court granted summary judgment to the State.

[18] Chen then moved for reconsideration, submitting an affidavit and a declaration signed by several former colleagues at Western State.

[19] The trial court granted the State’s motion to strike the affidavit and the declaration and denied Chen’s motion for reconsideration. Chen appeals.

Chen v. State, 86 Wn.App. 183 (Div. 2 1997), review denied, 133 Wn.2d 1020, 948 P.2d 387 (1997) (internal citations omitted) (paragraph formatting and hyperlinks added).

ISSUE #1: Did the Court properly dismiss Chen’s discrimination claims (i.e., wrongful termination based on age, race, and national origin?

[1-1] WASHINGTON LAW AGAINST DISCRIMINATION (WLAD): “RCW Chapter 49 prohibits employers from discriminating against persons based on age, race, creed, color, or national origin.” Chen, 86 Wn.App. at 189 (citing RCW 49.44.090; 49.60.180).

EDITORS NOTE: as of the date of this article, RCW 49.60.180 includes the following protected classes: age*, sex*, marital status*, sexual orientation*, race*, creed*, color, national origin*, citizenship or immigration status, honorably discharged veteran or military status*, or the presence of any sensory, mental, or physical disability* or the use of a trained dog guide* or service animal* by a person* with a disability.

(*The link will take the reader to our external website blog: Law Office of Gregory A. Williams.)

[1-2] THE THREE-STEP MCDONNELL DOUGLAS FRAMEWORK:

[1-2a] STEP 1 — THE PLAINTIFF’S PRIMA FACIE CASE: “To establish a prima facie case of termination for age, race, or national origin discrimination, an employee must demonstrate that he or she[:]

(1) belongs in a protected class;

(2) was discharged;

(3) was doing satisfactory work; and

(4) was replaced by someone not in the protected class.

EDITORS NOTE: in Mikkelsen v. Public Utility District No. 1 of Kittitas County*, 189 Wn.2d 516 (Wash. 2017), the Washington State Supreme Court held that “the McDonnell Douglas framework* does not require a plaintiff to prove that she was replaced by a person outside her protected group to establish a prima facie case of discrimination.” Id. at 532 (emphasis and hyperlink added).

(*The link will take the reader to our external website blogs: Court Slips and Williams Law Group, respectively.)

Id. (citing Grimwood v. University of Puget Sound, Inc., 110 Wash.2d 355, 362-64, 753 P.2d 517 (1988); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973)) (emphasis added).

» Establishing Prima Facie Case Prevents Dismissal at End of Plaintiff’s Case: “Establishing these elements prevent dismissal at the end of the plaintiff’s case, notwithstanding that the evidence does not yet show why the discharge occurred.” Id. (citing Carle v. McChord Credit Union, 65 Wash.App. 93, 99 n. 6, 827 P.2d 1070 (1992)).

[1-2b] STEP 2 — THE EMPLOYER’S LEGITIMATE NONDISCRIMINATORY REASON:

» After Prima Facie Case Is Established, Employer Must Articulate Legitimate, Nondiscriminatory Reason for Termination: “Once a plaintiff has established this prima facie case, the employer must articulate a legitimate, nondiscriminatory reason for the termination.” Id. at 189-90 (citing Grimwood, 110 Wash.2d at 363-64, 753 P.2d 517).

» Employer’s Burden Is Production Not Persuasion: “The employer’s burden is not one of persuasion, but rather one of production.” Id. at 190 (internal citation omitted).

» If Employer Fails Step 2, No Genuine Issue of Material Fact : “If the employer fails to advance a legitimate reason for its action, there is no genuine issue of material fact.” Id. (citing Carle, 65 Wash.App. at 100, 827 P.2d 1070).

[1-2c] STEP 3 — ESTABLISHING PRETEXT:

» If Employer Satisfies Step 2, Then Employee Must Establish Employer’s Reason(s) Are Pretext for Discriminatory Purpose: “If an employer meets this burden[, (i.e., establishing a legitimate nondiscriminatory reason for the termination)], the plaintiff must then show that the employer’s articulated reasons are unworthy of belief or are a mere pretext for what is, in fact, a discriminatory purpose.” Id. (citing Grimwood, 110 Wash.2d at 364, 753 P.2d 517).

» Ways To Show Pretext: “An employee can demonstrate that the employer’s proffered reasons are unworthy of belief with evidence that:

(1) the employer’s reasons have no basis in fact; or

(2) even if the reasons are based on fact, the employer was not motivated by the reasons; or

(3) the reasons are insufficient to motivate the adverse employment decision.

Id. (citing Kuyper v. State, 79 Wash.App. 732, 738-39, 904 P.2d 793 (1995), review denied, 129 Wash.2d 1011, 917 P.2d 130 (1996).

» If Plaintiff Shows Pretext, Then Case Must Go to Jury; If Not, Then Employer Entitled to Dismissal: “If a plaintiff produces evidence at this third stage to counter the employer’s reasons, the case must be submitted to the jury; if not, the employer is entitled to a dismissal.” Id. (citing Carle, 65 Wash.App. at 102, 827 P.2d 1070).

[1-3] MCDONNELL-DOUGLAS FRAMEWORK: OVERCOMING SUMMARY JUDGMENT:

» Need More Than Opinions or Conclusory Statements: “[T]o overcome an employer’s summary judgment motion, the employee must do more than express an opinion or make conclusory statements.” Id. (citing Hiatt v. Walker Chevrolet Co., 120 Wash.2d 57, 66, 837 P.2d 618 (1992)).

» Must Establish Specific & Material Facts: “The employee has the burden of establishing specific and material facts to support each element of his or her prima facie case.” Id. (citing Hiatt, 120 Wash.2d at 66, 837 P.2d 618 (emphasis present)).

[1-4] MCDONNELL-DOUGLAS FRAMEWORK: FIVE CONSIDERATIONS:

1. Direct or “Smoking Gun” Evidence Not Required: “To meet this burden, an employee is not required to produce direct or “smoking gun” evidence. Id. at 190 (citing Sellsted v. Washington Mut. Sav. Bank, 69 Wash.App. 852, 860, 851 P.2d 716 (1993)).

2. Circumstantial, Indirect, and Inferential Evidence is Sufficient: Circumstantial, indirect, and inferential evidence is sufficient to discharge the plaintiff’s burden. Id. (citing Sellsted, 69 Wash.App. at 860, 851 P.2d 716).

3. Subjective Judgments by Employers Are Not Per Se Illegal: “Subjective judgments by employers are not per se illegal, nor do they always lack legitimacy.” Id. (citing MACK A. PLAYER, EMPLOYMENT DISCRIMINATION LAW 336 (1988)).

4. Subjective Performance Evaluations Are Legitimate When Job Requires Professional Judgment: “Subjective evaluations of performance are legitimate when the job requires the employee to exercise professional judgment.” Id. at 190-91 (citing PLAYER, supra, at 336).

5. Need More Than Assertion of Good Performance to Counter Assertion of Poor Performance: “An employee’s assertion of good performance to contradict the employer’s assertion of poor performance does not give rise to a reasonable inference of discrimination.” Id. (citing Parsons v. St. Joseph’s Hosp., 70 Wash.App. 804, 811, 856 P.2d 702 (1993)).

[1-5] MCDONNELL DOUGLAS FRAMEWORK — CHEN ESTABLISHED A PRIMA FACIE CASE:

» The Prima Facie Case (Elements 1 & 2): Parties Agree Chen Is Older Asian Male From Taiwan and the Hospital Dismissed Him: “Here, the parties agree that Chen is an older Asian male from Taiwan and that the hospital dismissed him at the end of the probationary period.” Chen, 86 Wn.App. at 191.

» The Prima Facie Case (Elements 3 & 4): Chen Uses Self-Evaluations to Argue He Was Doing Satisfactory Work and the State’s Basis For Termination Was Pretext: “Chen maintains that he was doing satisfactory work and that the State’s reason for dismissal, poor performance, was a pretext. To establish an inference of discrimination, Chen points to his own self-evaluations and his explanations of the State’s examples of poor work performance.” Id.

[1-6] COURT’S ANALYSIS — CHEN DID NOT ESTABLISH PRETEXT:

» Self-Evaluations Insufficient to Raise Genuine Issues of Material Fact: “Chen’s self-evaluations, however, are insufficient to raise genuine issues of material fact.” See Parsons, 70 Wash.App. at 811, 856 P.2d 702 (employee’s good performance assertion did not give rise to a reasonable inference of discrimination to contradict legitimate, nondiscriminatory reason for the termination based on poor performance).

» Chen Did Not Challenge Staff Complaints Used to Evaluate His Performance: Chen’s “explanations for the cited examples of poor performance do not create an inference of discrimination. Chen does not challenge the facts of the staff complaints used by the State to evaluate his performance. Rather, he seeks either to minimize their importance or offers explanations that shift responsibility from him, e.g., one of the transferring staff had a reputation for being difficult.

» State Entitled to Expect Chen (As Team Leader) to Deal With Difficult Team Members: “But the State was entitled to expect Chen, as the team leader, to deal with ‘difficult’ team members. Chen’s duties, really nothing more than job description, were for the State to formulate, not Chen.” Id.

[1-7] PLAINTIFF CHEN FAILED TO ESTABLISH PRETEXT — SUMMARY JUDGMENT AFFIRMED: “[W]e hold that Chen failed to … present evidence that the State’s reason for terminating him was either false or a pretext. We affirm the summary judgment for the State.” Chen, 86 Wn.App. at 194 (emphasis added).

ISSUE #2: Did the Court properly dismiss Chen’s fraud claim?

[2-1] FRAUD — THE PRIMA FACIE CASE: “To establish fraud, the plaintiff must demonstrate:

(1) representation of an existing fact;

(2) materiality;

(3) falsity;

(4) speaker’s knowledge of its falsity;

(5) speaker’s intention that it shall be acted upon by the plaintiff;

(6) plaintiff’s ignorance of falsity;

(7) reliance;

(8) right to rely; and

(9) damages.

Chen, 86 Wn.App. at 188 (citing Hoffer v. State, 110 Wash.2d 415, 425, 755 P.2d 781 (1988), aff’d. on rehearing, 113 Wash.2d 148, 776 P.2d 963 (1989)) (paragraph formatting added).

[2-2] REQUIRES CLEAR, COGENT, AND CONVICING EVIDENCE: “Each element of fraud must be proven by clear, cogent, and convincing evidence.” Id. (citing Douglas Northwest, Inc. v. Bill O’Brien & Sons Constr., Inc., 64 Wash.App. 661, 678, 828 P.2d 565 (1992)).

[2-3] CHEN’S ARGUMENT — SATISFACTORY PERFORMANCE IN THE PROBATIONARY PERIOD MEANS ABSENCE OF GROSS MISCONDUCT: In this case, “Chen first argues that the State is estopped from denying him permanent employment because it interpreted ‘satisfactory performance’ in the probationary period to mean an absence of gross misconduct.” Chen, 86 Wn.App. at 188. “Chen claims that he had a right to rely on this interpretation. Id.

[2-4] COURT’S ANALYSIS — NO FALSE STATEMENT:

In the instant case, the Court made the following determinations concerning Chen’s argument:

» Chen Is Incorrect: In this case, the Court determined that “Chen’s argument, that Hamilton represented that gross misconduct was the only grounds for failing probation, is not correct.” Id.

» Hamilton Did Not Represent That “Gross Misconduct” Was Only Grounds for Failing Probation: “When asked by Chen about the probationary period, Hamilton responded that the probationary period was not difficult, and that only one psychiatrist in the past 10 years had failed the probationary period. That psychiatrist, according to Hamilton, had committed gross misconduct.” Id.

» Hamilton Did Not Make a False Statement: “Hamilton did not make a false statement. The statement was simply an explanation of the reason one psychiatrist had failed to pass probation. It was not a representation that one can fail probation only by committing gross misconduct.” Id. at 188-89.

[2-5] THE TRIAL COURT PROPERLY DISMISSED THE FRAUD CLAIM: In this case, the Court held that “the trial court properly dismissed the fraud claim.” Chen, 86 Wn.App. at 188-89 (footnote omitted).

ISSUE #3: Did the Court abuse its discretion in striking Chen’s affidavit and declaration in support of his motion for reconsideration?

[3-1] MOTIONS FOR RECONSIDERATION — STRIKING AFFIDAVITS AND DECLARATIONS:

» Summary Judgment Context — No Prejudice if Court Considers Additional Facts on Reconsideration: “In the context of summary judgment, unlike in a trial, there is no prejudice if the court considers additional facts on reconsideration.” Chen, 86 Wn.App. at 192 (citing Applied Indus. Materials Corp. v. Melton, 74 Wash.App. 73, 77, 872 P.2d 87 (1994)).

» CR 59 Does Not Prohibit Submissions of New/Additional Materials on Reconsideration: “Furthermore, nothing in CR 59 prohibits the submission of new or additional materials on reconsideration.” Id. (citing Sellsted, 69 Wash.App. at 865 n. 19, 851 P.2d 716).

» Motions for Reconsideration & Taking of Additional Evidence Are Within Discretion of Trial Court: “Motions for reconsideration and the taking of additional evidence, therefore, are within the discretion of the trial court.” Id. (citing Trohimovich v. Department of Labor & Indus., 73 Wash.App. 314, 318, 869 P.2d 95 (1994) (trial court did not abuse discretion by failing to grant reconsideration motion); Ghaffari v. Department of Licensing, 62 Wash.App. 870, 816 P.2d 66 (1991) (consideration of additional evidence at motion for reconsideration of bench trial within discretion of trial court)).

In this case, “Chen … argues the trial court erred in striking the affidavit and declaration submitted in support of his motion for reconsideration.” Chen, 86 Wn.App. at 191-92.

[3-2] STRIKING AFFIDAVITS:

“Here, the trial court did not abuse its discretion in striking the affidavit and declaration.” Id.

COURTS ANALYSIS:

Affidavit Contained No New Information About Chen: “The affidavit contained no new information about Chen, only a repetition of already presented information, and personnel information about Dr. Dennis.” Id.

∴ No Issues of Material Fact Concerning Dismissal: “This information does not create any issues of material fact concerning Chen’s dismissal.” Id.

[3-3] STRIKING DECLARATIONS:

“Chen also submitted a declaration, signed by some former medical colleagues at Western State [(hereinafter, “delcarants”].” Id.

COURTS ANALYSIS:

Declaration Said Chen Had Good Communication Skills and Relationships: “The declaration stated that Chen had good communication skills and had good relationships with his colleagues and coworkers.” Id.

However, No Delcarant Either Supervised and Evaluated Chen or Served as a Member of His Team: “But none of the colleagues who signed the declaration was either charged with supervising and evaluating Chen or served as a member of his team. Id. (citing Grimwood, 110 Wash.2d at 364, 753 P.2d 517 (none of the customers were charged with supervising and evaluating employee’s performance)).

∴ Declaration Was Insufficient to Establish Falsity or Pretext: “Thus, this declaration was also insufficient to establish that the State’s reasons for dismissing Chen were either false or mere pretexts.” Id.

[3-5] TRIAL COURT DID NOT ABUSE ITS DISCRETION IN STRIKING AFFIDAVIT AND DECLARATION — AFFIRMED: “Accordingly, the trial court did not abuse its [sic] [discretion] in striking the affidavit and declaration.” Id. at 192.

NOTABLES & IMPLICATIONS:

PLEADINGS

(a) “Under the liberal rules of procedure, pleadings are primarily intended to give notice to the court and the opponent of the general nature of the claim asserted.” Chen, 86 Wn.App. at 193 (citing Lewis v. Bell, 45 Wash.App. 192, 197, 724 P.2d 425 (1986)).

(b) “Although inexpert pleading is allowed, insufficient pleading is not.” Id. (citing Lewis, 45 Wash.App. at 197, 724 P.2d 425).

(c) “A pleading is insufficient when it does not give the opposing party fair notice of what the claim is and the ground upon which it rests.” Id. at 193-94 (quoting Lewis, 45 Wash.App. at 197, 724 P.2d 425; Molloy v. City of Bellevue, 71 Wash.App. 382, 389, 859 P.2d 613 (1993) (complaint must apprise defendant of the nature of plaintiff’s claims and legal grounds upon which claim rests)) (internal quotation marks omitted).

(d) APPLICATION (Chen v. State) — A single statement in pleadings is insufficient: In this case, “Chen … maintains that he raised a hostile work environment claim.” Id. at 193. “In the factual section of his complaint, Chen states ‘[t]hat upon commencing work at Western State Hospital, Plaintiff was subject to discrimination in the terms and conditions of his employment because of his race, age, and national origin.'” Id. (alteration in original). “Here, trial counsel did not raise a hostile work environment claim in the briefing, nor did the State address the issue in its summary judgment brief. Furthermore, the issue was not mentioned during oral argument on the motion.” Id. at 194.

∴ Court’s Analysis: “This single statement in the pleadings is insufficient to give the court and the opposing party notice of the claim.” Id. (citing Lewis, 45 Wash.App. at 197, 724 P.2d 425). “Accordingly, a claim for a hostile work environment was not Before the trial court.” Id.

PROMISSORY ESTOPPEL

(e) “In reviewing a summary judgment order, the appellate court will consider only evidence and issues called to the attention of the trial court.” Id. at 194 n.1 (citing RAP 9.12). “Under the doctrine of promissory estoppel, the plaintiff must establish:

(1) a promise which

(2) the promisor should reasonably expect to cause the promisee to change his position and

(3) which does cause the promisee to change his position

(4) justifiably relying upon the promise, in such a manner that

(5) injustice can be avoided only by enforcement of the promise.

Id. (citing Havens v. C & D Plastics, Inc., 124 Wash.2d 158, 172, 876 P.2d 435 (1994), quoting Klinke v. Famous Recipe Fried Chicken, Inc., 94 Wash.2d 255, 259 n. 2, 616 P.2d 644 (1980)).

(f) “Promissory estoppel requires the existence of a promise.” Id. (citing Havens, 124 Wash.2d at 172, 876 P.2d 435).

(g) “A promise is defined as ‘a manifestation of intention to act or refrain from acting in a specified way, so made as to justify a promisee in understanding that a commitment has been made.'” Id. (quoting Havens, 124 Wash.2d at 172, 876 P.2d 435 (quoting Restatement (Second) of Contracts, § 2(1))).

(h) APPLICATION (Chen v. State) — No promise in this case: In this case, “Chen also argues that the court should consider a promissory estoppel claim because the doctrine relies on the same facts in evidence as the fraud claim.” Id. However, “[e]ven if the court could consider the claim, it is without merit.” Id.

∴ Court’s Analysis: “Here, Hamilton did not make a promise to Chen regarding the probationary period; there was no manifestation that an employee could fail to achieve permanent status only because of gross misconduct. Hamilton only stated that gross misconduct was the reason one particular psychiatrist had failed to complete the probationary period.” Id.

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July 10, 2021May 26, 2022

Jenkins v. Palmer, 116 Wn.App. 671 (Div. 2 2003)

This is a case summary of Jenkins v. Palmer, 116 Wn.App. 671 (Div. 2 2003). Subjects include:

» HOSTILE WORK ENVIRONMENT

» CO-WORKER LIABILITY

» WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY

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**Jenkins v. Palmer, 116 Wn.App. 671 (Div. 2 2003)**

case summarY – 10 PRIMARY Facts:

[1] [Debra] Palmer and [Prince] Jenkins were co-workers at the Washington Corrections Center (WCC)[.]

[2] Jenkins sued Palmer to recover funds he gave her as part of an investment agreement.

[3] Palmer then filed a counterclaim in which she alleged sexual harassment and discrimination.

[4] Palmer claimed that Jenkins filed his lawsuit in retaliation for her report of his sexually discriminatory behaviors, which she alleged led to the loss of his job.

[5] She described the behaviors as[:]

(1) harassing her by calling her on the phone;

(2) making sexual advances toward her;

(3) telling other co-workers to stay away from her because she was his property;

(4) telling her that associating with other co-workers would make her “nothing but a slut,” and that women should be slapped around and have sense knocked into them;

(5) threatening to kill her with the rifle he kept in his guard tower;

(6) threatening to flatten her car tires;

(7) mentioning that he carried a gun in his car and that he was not afraid to use it on her;

(8) phoning her in her guard tower after she told him that she wanted him to leave her alone;

(9) approaching her in the WCC’s smoking gazebo, and threatening a co-worker who refused to leave; and

(10) calling her house and hanging up.

[6] Palmer alleged that Jenkins’s behavior affected her ability to do her job and that she feared for her safety and suffered great emotional distress.

[7] Jenkins moved for partial summary judgment on Palmer’s counterclaim . . . [wherein] he denied Palmer’s allegations and asserted that he was Palmer’s co-worker, with no supervisory or managerial control over her.

[8] He argued that the WLAD [(Washington Law Against Discrimination, RCW 49.60)] did not cover this situation.

[9] The trial court dismissed Palmer’s counterclaim, characterizing its order as a final judgment under CR 54(b) to allow Palmer to file an immediate appeal.

[10] On appeal, Palmer argues, as she did . . . [in the trial court,] that (1) a co-worker may be held personally liable for violating the WLAD, and (2) Jenkins’s actions also violated public policy against sexual discrimination and retaliation.

Jenkins v. Palmer, 116 Wn.App. 671 (Div. 2 2003) (internal citations omitted) (paragraph formatting and hyperlinks added).

ISSUE #1: Does the Washington Law Against Discrimination apply to the situation where a co-worker, acting on his own behalf, harasses, threatens, or makes sexual advances toward another worker?

[1-1] UNFAIR PRACTICES OF EMPLOYERS: “RCW 49.60.180(3) states that it is an unfair practice for an employer:

To discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability or the use of a trained dog guide or service animal by a disabled person[.]”

Jenkins v. Palmer, 116 Wn.App. 671, 674 (Div. 2 2003) (emphasis and hyperlink added).

[1-2] DEFINITION OF EMPLOYER: “RCW 49.60.040(3) defines ’employer’ to include ‘any person acting in the interest of an employer, directly or indirectly, who employs eight or more persons[.]’ (emphasis added).” Jenkins, 116 Wn.App. at 674 (hyperlink added).

[1-3] MANAGER & SUPERVISOR LIABILITY: “The [court in] Brown [v. Scott Paper Worldwide Co., 143 Wash.2d 349, 20 P.3d 921 (2001),] held that managers and supervisors may be personally liable under the WLAD when acting in their employer’s interest.” Jenkins, 116 Wn.App. at 675 (citing Brown, 143 Wash.2d at 358).

The court’s “holding is based on the express text of RCW 49.60.040(3), specifically the broad definition of ’employer’ as including any ‘person acting in the interest of an employer.‘” Jenkins, 116 Wn.App. at 675 (citing Brown, 143 Wash.2d at 357-58) (internal citations and quotation marks omitted) (emphasis in original) (hyperlink added).

[1-4] UNFAIR PRACTICE TO AID VIOLATION: RCW 49.60.220 “provides that:

It is an unfair practice for any person to aid, abet, encourage, or incite the commission of any unfair practice, or to attempt to obstruct or prevent any other person from complying with the provisions of this chapter or any order issued thereunder.

Jenkins, 116 Wn.App. at 675 (hyperlink added). RCW 49.60.220, although broad, focuses on conduct that encourages others to violate the WLAD. Jenkins, 116 Wn.App. at 675.

“The references to ‘aid, abet, encourage, or incite’ and to ‘prevent any other person from complying’ show that the statute applies only where the actor is attempting to or has involved a third person in conduct that would violate the WLAD.” Id. at 675-76 (citing RCW 49.60.220) (hyperlink added).

[1-5] UNFAIR PRACTICE (RETALIATION): RCW 49.60.210 “provides:

(1) It is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified or assisted in any proceeding….

Jenkins, 116 Wn.App. at 676.

[1-6] BROWN v. SCOTT PAPER WORLDWIDE CO: In this case, “Palmer contends that under Brown v. Scott Paper Worldwide Co., 143 Wash.2d 349, 20 P.3d 921 (2001), co-workers may be personally liable even when not acting in a supervisory capacity.” Jenkins, 116 Wn.App. at 675.

However, “[t]he Brown court held that managers and supervisors may be personally liable under the WLAD when acting in their employer’s interest.” Id. (citing Brown, 143 Wash.2d 349, 358, 20 P.3d 921) (emphasis added). Co-workers were not included as a category in the holding.

The Brown court based its holding “on the express text of RCW 49.60.040(3), specifically the broad definition of ’employer’ as including any ‘person acting in the interest of an employer.'” Jenkins, 116 Wn.App. at 675 (citing Brown, 143 Wash.2d at 357-58, 20 P.3d 921)) (internal citations and quotations marks omitted) (emphasis in original)).

Thus, the Court concluded that “[b]ecause Palmer does not contend that Jenkins was acting in the interest of WCC or that his conduct was anything other than personal, she has not shown Jenkins’s liability under the statute.” Id.

[1-7] UNFAIR PRACTICE TO AID VIOLATION (RCW 49.60.220): Here, the Court considered Palmer’s claim pursuant to RCW 49.60.220, and it found as follows:

RCW 49.60.220, although broad, focuses on conduct that encourages others to violate the WLAD. The references to ‘aid, abet, encourage, or incite’ and to ‘prevent any other person from complying’ show that the statute applies only where the actor is attempting to or has involved a third person in conduct that would violate the WLAD.

Jenkins, 116 Wn.App. at 675-76 (citing RCW 49.60.220) (hyperlink added).

Accordingly, there was “no basis to read RCW 49.60.220 as covering acts of harassment committed by a co-worker acting alone.” Jenkins, 116 Wn.App. at 676 (emphasis and hyperlink added).

[1-8] UNLAWFUL RETALIATION (RCW 49.60.210): In the instant case, Palmer “argued for the first time for application of RCW 49.60.210.” Jenkins, 116 Wn.App. at 676 (hyperlink added). But the Court did not address this contention, because, “Palmer has not argued this theory in her brief or provided any support for treating the filing of a non-frivolous lawsuit for monies owing as an act of discrimination under the WLAD.” Id. (citing RAP 2.5).

The Court also raised and dismissed any attempt to analogize the instant case to the application of RCW 49.60.210 in Galbraith v. TAPCO Credit Union, 88 Wash.App. 939, 946 P.2d 1242 (1997). Jenkins, 116 Wn.App. at 676.

[1-9] GALBRAITH V. TAPCO CREDIT UNION: In Galbraith, “[t]he defendant was a credit union that had terminated the plaintiff’s membership because the plaintiff had supported the credit union’s employees in their legal action against the credit union for a WLAD violation.” Id. However, although TAPCO Credit Union presented as a non-employer, the Court did not consider that case to be analogous to Jenkins; “[t]he specific facts … [in Galbraith] fit within the statutory language.” Id.

The Galbriath court ultimately “held that the credit union fit the definition of an ‘other person’ who had discriminated against Galbraith, and Galbraith fit the definition of ‘any person,’ because of his opposition to discriminatory practices prohibited by the WLAD.” Jenkins, 116 Wn.App. at 676 (citing Galbraith, 88 Wash.App. at 948-51, 946 P.2d 1242).

[1-10] WLAD DOES NOT APPLY TO SITUATION WHERE CO-WORKER, ACTING ON HIS OWN BEHALF, HARASSES, THREATENS, OR MAKES SEXUAL ADVANCES: The Court affirmed the trial court’s ruling that the Washington Law Against Discrimination “does not apply to the situation where a co worker, acting on his own behalf, harasses, threatens, or makes sexual advances toward another worker . . . even when liberally construed to effectuate its broad purposes.” Id. at 673.
.

ISSUE #2: Did Jenkins (a co-worker) violate public policy against sexual discrimination and retaliation?

[2-1] IMPLIED CAUSE OF ACTION: “In Bennett, the employer did not employ more than eight people, a requirement for coverage under the WLAD.” Id. at 677 (citing Bennett v. Hardy, 113 Wash.2d 912, 915, 784 P.2d 1258 (1990)).

“Seeking a remedy for a clear violation of public policy, the Bennett court found an implied cause of action under RCW 49.44.090 against an employer who discriminated on the basis of age discrimination.” Jenkins, 116 Wn.App. at 677 (citing Bennet, 113 Wash.2d at 921) (hyperlink added).

[2-2] WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY: “[A] plaintiff who is dismissed for engaging in conduct protected by public policy may bring a claim against her employer for wrongful discharge in violation of public policy.” Id. (citing Gardner v. Loomis Armored, Inc., 128 Wash.2d 931, 941, 913 P.2d 377, 382 (1996)).

[2-3] IMPLIED CAUSE OF ACTION: “Citing Bennett v. Hardy … Palmer claim[ed] that Jenkins’s conduct violated the public policy against retaliation.” Id. But the court determined that “[u]nlike Bennett, Palmer has not shown that Jenkins’s conduct violated a specific statutory prohibition.” Id.

[2-4] WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY: Palmer suggested “that Jenkins committed the common law tort of retaliation and wrongful discharge in violation of public policy.” Id. However, the Court reasoned that “Palmer … [did] not allege that WCC terminated her or that Jenkins was her employer.” Id

[2-5] POLICY AGAINST SEXUAL DISCRIMINATION AND RETALIATION DOES NOT APPLY (AFFIRMED): The Court found “no basis to create a new common law cause of action; and the theory of wrongful termination in violation of public policy “does not apply.” Id. Accordingly, it affirmed the trial court’s decision.

NOTABLES & IMPLICATIONS:

HOSTILE WORK ENVIRONMENT

(1) The Court in this case seems to imply that a co-worker may be held liable for harassment in violation of the Washington Law Against Discrimination if that co-worker was acting in the interests of the employer when the alleged unlawful harassment occurred. See id. at 674.

IMPLIED CAUES OF ACTION

(2) An implied cause of action may be asserted against defendant employers that escape the reach of the Washington Law Against Discrimination.

The case of Bennett v. Hardy, 113 Wash.2d 912, 784 P.2d 1258 (1990), involved a defendant employer with less than eight employees thereby making the Washington Law Against Discrimination inapplicable. The Court in this case explained that “the Bennett court found an implied cause of action under RCW 49.44.090 against an employer who discriminated on the basis of age discrimination.” Jenkins, 116 Wn.App. at 677 (citing Bennett, 113 Wash.2d at 921) (hyperlink added). However, “[u]nlike Bennett, Palmer has not shown that Jenkins’s conduct violated a specific statutory prohibition.” Id.

Thus, [the Court found] … no basis to create a new common law cause of action in this case.” Id.

PERSONAL LIABILTY: MANAGERS & SUPERVISORS

(3) The court in Brown v. Scott Paper Worldwide Co., 143 Wash.2d 349, 20 P.3d 921 (2001), “found that managers and supervisors may be personally liable under the WLAD when acting in their employer’s interest.” Jenkins, 116 Wn.App. at 675.
.

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July 7, 2021May 26, 2022

Cornwell v. Microsoft Corporation, 430 P.3d 229 (Wash. 2018)

This is a case summary of Cornwell v. Microsoft Corporation, 430 P.3d 229 (Wash. 2018). Subjects include:

» UNLAWFUL RETALIATION

» CAUSATION

» THREE ASSOCIATED EVALUATION STANDARDS:

(1) “Actual Knowledge” Standard;

(2) “Knew or Suspected” Standard, and

(3) “General Corporate Knowledge” Standard.

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**Cornwell v. Microsoft Corporation, 430 P.3d 229 (Wash. 2018)**

CASE SUMMARY – 20 Facts:

[1] While working for Microsoft, Cornwell believed that her then-supervisor was discriminating against her on the basis of sex, engaging in romantic favoritism, and taking retaliatory action against her.

[2] She hired an attorney and settled the case with Microsoft.

[3] The settlement was confidential, and Cornwell was no longer required to work under her then-manager, … Parsons.

[4] Seven years later, Cornwell’s new manager, … Blake, asked Cornwell to mentor under another Microsoft employee.

[5] After learning that the employee reported to Parsons, Cornwell told Blake that she could not mentor under the employee.

[6] Blake asked Cornwell why, and Cornwell responded that it was because she had filed a “lawsuit” against Microsoft and could not report to Parsons.

[7] Cornwell also told Blake that the suit involved a review score issue and was confidential.

[8] Blake sought more information about the lawsuit from human resources and her direct supervisor, McKinley.

[9] Human resources did not have any information on file about the lawsuit and promised to follow up on the issue.

[10] Cornwell informed Blake that she was unable to discuss the lawsuit further because of the confidentiality agreement and expressed dissatisfaction that Blake had contacted human resources about the matter.

[11] Shortly after Cornwell told her about the suit, Blake conducted a mandatory performance review of Cornwell.

[12] During that year, Cornwell had received positive reviews from her peers[ ][.]

[13] During her previous years working for Microsoft, Cornwell also had received good performance ratings and promotions.

[14] Despite this positive employment history, Blake informed Cornwell that she was trending toward a rating of “4,” the second lowest possible score.

[15] Ultimately, Blake and McKinley recommended that Cornwell be rated “5,” the lowest possible score.

[16] Other managers disagreed with the rating, believing that Cornwell was a higher performer.

[17] Despite these disagreements, McKinley said that she and Blake would “take the conversation ‘off-line,’ ” meaning that Blake and McKinley would make the final decision about Cornwell’s performance rating without the involvement of the other managers.

[18] Cornwell’s final performance rating was assessed as a “5”— the lowest possible score.

[19] Cornwell was then laid off as part of a larger reduction in force.

[20] [C]ornwell did not learn about her low score until several years later when she was told that she could not be rehired at Microsoft because her final performance rating was so poor.

Cornwell v. Microsoft Corporation, 430 P.3d 229, 232-33 (Wash. 2018) (internal citations omitted).

procedural HISTORY – 8 facts:

[21] Based on these events, Cornwell filed suit against Microsoft, alleging retaliation in violation of WLAD [(i.e., Washington Law Against Discrimination)].

[22] The trial court granted Microsoft’s motion for summary judgment because the judge believed that “there isn’t evidence that Ms. Blake, who gave [Cornwell] the bad [review] score, knew that there was a complaint under WLAD.”

[23] As a result, the judge believed that Cornwell had failed to show a causal link between the adverse employment action taken against her and her prior lawsuit against Microsoft.

[24] Cornwell appealed the trial court’s ruling to the Court of Appeals.

[25] The Court of Appeals affirmed the grant of summary judgment in an unpublished opinion.

[26] But it declined to address whether Cornwell’s prior lawsuit was “protected activity” under WLAD.

[27] The court also declined to adopt Cornwell’s proposed standards of review for the claim.

[28] Cornwell appealed the Court of Appeals’ adverse decision to … [the Washington State Supreme Court], and … [it] accepted review of all issues.

Cornwell v. Microsoft Corporation, 430 P.3d 229, 233 (Wash. 2018) (internal citations omitted).

ISSUE #1: Did plaintiff Cornwell present “enough evidence to show that her supervisors had sufficient knowledge that she had taken a protected action under the Washington Law Against Discrimination (WLAD), RCW 49.60.030?” Id. at 232.

[1-1] STANDARD OF REVIEW: “[The Court] … review[s] a trial court’s grant of summary judgment de novo.” Cornwell v. Microsoft Corporation, 430 P.3d 229, 233 (Wash. 2018) (citing Scrivener v. Clark Coll., 181 Wn.2d 439, 444, 334 P.3d 541 (2014)).

“Summary judgment is appropriate only when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Id. (internal quotation marks omitted).

“[The Court] must also consider all facts and make all reasonable factual inferences in the light most favorable to the nonmoving party.” Id. at 234 (citing Scrivener, 181 Wn.2d at 444, 334 P.3d 541) (internal quotation marks omitted).

“[B]ecause of the difficulty of proving a discriminatory motivation … [s]ummary judgment for an employer is seldom appropriate in the employment discrimination context[.]” Id. at 233-34 (internal citations and quotation marks omitted) (alteration in original).

[1-2] RETALIATION UNDER WLAD: “WLAD proscribes discrimination in employment on the basis of sex, race, sexual orientation, and other protected characteristics.” Id. at 234 (citing RCW 49.60.030).

“WLAD also prohibits employers from retaliating against employees who oppose discriminatory practices.” Id. (citing RCW 49.60.210(1)).

“To further these purposes, the legislature has directed … [the courts] to liberally construe the provisions of WLAD.” Id. (citing RCW 49.60.020).

[1-3] THE MCDONNELL DOUGLAS BURDEN-SHIFTING FRAMEWORK: “When evaluating the merits of cases brought under WLAD, … [the courts] employ the McDonnell Douglas ‘evidentiary burden-shifting’ framework.” Id. at 234 (citing Mikkelsen v. Public Utility District, 189 Wn.2d 516, 526, 404 P.3d 464 (2017)) (internal footnote and associated citation omitted).

“This framework involves three steps, but … [the court] is concerned with only the first step in this case — the plaintiff’s burden to establish a prima facie case of discrimination.” Id. (citing Scrivener, 181 Wn.2d at 446, 334 P.3d 541).

“Ordinarily the prima facie case must, in the nature of things, be shown by circumstantial evidence, since the employer is not apt to announce retaliation as his motive.” Id. (internal citations and quotation marks omitted).

[1-4] THE PRIMA FACIE CASE OF RETALIATION: “To establish a prima facie case of retaliation, an employee must show three things: (1) the employee took a statutorily protected action, (2) the employee suffered an adverse employment action, and (3) a causal link between the employee’s protected activity and the adverse employment action.” Id. at 234 (citing Currier v. Northland Servs., Inc., 182 Wn.App. 733, 742, 332 P.3d 1006 (2014); see also Wilmot v. Kaiser Alum. & Chem. Corp, 118 Wn.2d 46, 68, 821 P.2d 18 (1991) (“establishing the retaliation test in the worker’s compensation context”)) (emphasis added).

[1-5] THE COURT ONLY CONSIDERED THE 3RD ELEMENT (CAUSATION): “Microsoft alleges that Cornwell has failed to produce sufficient evidence for the first and third elements of her prima facie case.” Id. at 234. However, the Court elected to consider only the third element–causation–as follows:

Because the Court of Appeals declined to address whether Cornwell’s lawsuit against Microsoft was a protected activity, and because the parties did not brief the issue to us, we do not reach that issue on appeal. We instead address only whether Cornwell presented sufficient evidence to show a potential causal link between her performance rating score, her termination, and her prior lawsuit.

Id. at 234-35 (emphasis added).

[1-6] PROVING CAUSATION: “An employee proves causation ‘by showing that retaliation was a substantial factor motivating the adverse employment decision.’ ” Id. at 235 (citing Allison v. Hous. Auth., 118 Wn.2d 79, 96, 821 P.2d 34 (1991)) (emphasis added).

CIRCUMSTANTIAL EVIDENCE — PROXIMITY IN TIME: “That an employer’s actions were caused by an employee’s engagement in protected activities may be inferred from proximity in time between the protected action and the allegedly retaliatory employment decision.” Id. at 236 (referencing Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185, 1197 (9th Cir. 2003) (internal citations and quotation marks omitted).

CIRCUMSTANTIAL EVIDENCE — CHANGE IN PERFORMANCE RATINGS: Circumstantial evidence that an employee experienced an abrupt downward change in performance reviews can support a reasonable inference of causation. See id. at 236-37.

[1-7] CAUSATION & THE PLAINTIFF’S BURDEN OF PRODUCTION AT SUMMARY JUDGMENT: “At the summary judgment stage, the plaintiff’s burden is one of production, not persuasion.” Id. at 235 (citing Scrivener, 181 Wn.2d at 445, 334 P.3d 541).

“Thus, to avoid summary judgment on causation, the employee must show only that a reasonable jury could find that retaliation was a substantial factor in the adverse employment decision.” Id. (internal citation omitted).

“Employees may rely on the following facts to show this: (1) the employee took a protected action, (2) the employer had knowledge of the action, and (3) the employee was subjected to an adverse employment action.” Id. (citing Wilmot, 118 Wn.2d at 69, 821 P.2d 18) (emphasis added). In this case, the 2nd element (i.e., the employer had knowledge of the action) was at issue.

[1-8] THE 3 STANDARDS OF CAUSATION: The Court considered three standards of causation: the “actual knowledge” standard; the “knew or suspected” standard; and the “general corporate knowledge” standard.

[1-8a] CAUSATION — “ACTUAL KNOWLEDGE” STANDARD: “Both the Court of Appeals and several federal courts require that the employer have actual knowledge of the employee’s protected action in order to prove causation.” Id. at 235 (internal citations omitted).

POLICY (ACTUAL KNOWLEDGE): “Because retaliation is an intentional act, an employer cannot retaliate against an employee for an action of which the employer is unaware.” Id. at 235-36.

ACTUAL KNOWLEDGE OF “LEGAL SIGNIFICANCE” NOT REQUIRED (ACTUAL KNOWLEDGE): But “[a] decision-maker need not have actual knowledge about the legal significance of a protected action.” Id. at 236 (emphasis added).

ACTUAL KNOWLEDGE THAT EMPLOYEE TOOK THE ACTION IS REQUIRED (ACTUAL KNOWLEDGE): “Instead, the decision-maker need have actual knowledge only that the employee took the action in order to prove a causal connection.” Id. (internal citations omitted) (emphasis added).

SURVIVING SUMMARY JUDGMENT (ACTUAL KNOWLEDGE): “The proper inquiry is whether the … evidence suggests a causal connection between the protected activity and the subsequent adverse action sufficient to defeat summary judgment.” Id. (internal citation omitted) (alteration in original).

[1.8b] CAUSATION — “KNEW OR SUSPECTED” STANDARD: “The ‘knew or suspected’ standard incorporates the ‘actual knowledge’ standard and also encompasses cases in which the employer suspects that an employee engaged in protected action.” Id. at 237 (trailing footnote omitted) (emphasis added).

PROTECTED ACTION & THE CASUSAL CONNECTION (KNEW OR SUSPECTED): This standard “[r]equires sufficient evidence to reasonably infer ‘both that [a supervisor] either knew or suspected’ that an employee took a protected action ‘and that there was a causal connection between this knowledge or suspicion and [the employee’s] termination.’ ” Id. (citing Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107, 1113 (9th Cir. 2003)) (alteration in original).

EXAMPLE BASED ON MERE SUSPICION (KNEW OR SUSPECTED): “This standard applies, for example, when a supervisor has actual knowledge that a complaint was made but has only a suspicion regarding who made the complaint and subsequently takes an adverse employment action based on that suspicion.” Id.

SURVIVING SUMMARY JUDGMENT (KNEW OR SUSPECTED): “So long as an employee produces evidence from which a reasonable jury could infer that retaliation had taken place, this is sufficient to survive summary judgment.” Id. (citing Hernandez at 1114). “And while, a jury could believe the supervisor’s version of events rather than the employee’s, the jury must be permitted to consider and weigh evidence.” Id. (citing Hernandez at 1114).

[1-8c] CAUSATION — “GENERAL CORPORATE KNOWLEDGE” STANDARD: “Under this standard, the jury can still find retaliation in circumstances where the particular decision-maker denies actual knowledge of the plaintiff’s protected activities, ‘so long as … the jury concludes that an agent is acting explicitly or implicit[ly] upon the orders of a superior who has the requisite knowledge.’ ” Id. at 241, n. 6 (citing Gordon v. N.Y.C. Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000)) (alteration in original).

This standard “may be useful in situations where many individuals act collectively in a large company[ ] [.]” Id.

[1-9] RESTATING THE CAUSATION ISSUE (SUFFICIENT KNOWLEDGE): “At issue is whether [Cornwell] … presented enough evidence to show that her supervisors had sufficient knowledge that she had taken a protected action under the Washington Law Against Discrimination (WLAD), RCW 49.60.030.” Id. at 231 (emphasis added).

“Without establishing this knowledge, Cornwell cannot demonstrate a potential causal link between the adverse employment action taken against her and her protected activity.” Id. (emphasis added).

[1-10] MICROSOFT’S ARGUMENT (NO CAUSAL LINK): In this case, “Microsoft argues that Cornwell failed to present sufficient evidence to create an issue of material fact that there is a causal link between her prior lawsuit and the adverse employment action taken against her.” Id. at 235. However, the Court disagreed with Microsoft’s argument for the following reasons.

[1-11] COURT DECLINES TO ADDRESS THE “GENERAL CORPORATE KNOWLEDGE” STANDARD: In this case, the Court “decline[d] to address the “general corporate knowledge” standard, because “[w]hile the standard may be useful in situations where many individuals act collectively in a large company, it is not applicable here where Cornwell’s two supervisors had actual knowledge of her prior lawsuit.” Id. at 241, fn. 6.

[1-12] CORNWELL PASSED THE “ACTUAL KNOWLEDGE” STANDARD: In this case, “Microsoft argue[ed] that Blake and McKinley did not have actual knowledge of Cornwell’s suit because they did not know the specific nature of the lawsuit— i.e., that it involved an allegation of discrimination in violation of WLAD.” Id. at 236 (internal citation omitted).

The Court found that “Microsoft’s focus on the managers’ knowledge about the substance of the suit [was] … misplaced.” Id. It then determined the relevant rule regarding causal connections:

A decision-maker need not have actual knowledge about the legal significance of a protected action. Instead, the decision-maker need have actual knowledge only that the employee took the action in order to prove a causal connection.

Id. (emphasis added).

The Court concluded that “Cornwell has presented sufficient evidence to survive summary judgment under the actual knowledge standard.” Id. at 235 (emphasis added). The Court reasoned:

Both Blake and McKinley had actual knowledge that Cornwell filed the prior lawsuit against Microsoft. Shortly after leaning this, and over the objection of other managers, they gave Cornwell the lowest possible rating, and Cornwell was laid off.

Id. at 239 (emphasis added). Thus, Cornwell presented satisfactory circumstantial evidence meeting both the proximity-in-time and abrupt-change-in-performance tests.

[1-13] CORNEWELL PASSED THE “KNEW OR SUSPECTED” STANDARD: In this case, the Court determined that “Cornwell easily meets the ‘knew or suspected’ standard to survive summary judgment on her retaliation claim.” Id. at 238 (emphasis added). The Court reasoned as follows:

[C]ornwell had to prove that Microsoft knew or suspected that she had taken a prior legal action. As previously discussed, Cornwell produced sufficient evidence showing that both Blake and McKinley had actual knowledge that Cornwell had filed a previous lawsuit against Microsoft.

Id. at 237-38 (emphasis added).

[1-14] CORNWELL PRESENTED ENOUGH EVIDENCE TO CREATE A DISPUTE OF FACT ABOUT A CAUSAL LINK: The Court held that “Cornwell presented sufficient evidence to survive summary judgment on the issues of knowledge and causation.” Id. at 232 (emphasis added).

KNOWLEDGE: The Court found that “[t]he evidence tends to show that both of Cornwell’s supervisors had actual knowledge that Cornwell had previously engaged in protected activity before they subjected her to adverse employment action.” Id. at 232. “Both Blake and McKinley had actual knowledge that Cornwell filed the prior lawsuit against Microsoft.” Id. at 239.

CAUSATION: The Court found that “Cornwell presented sufficient evidence to create a dispute of fact about whether there was a causal link between her poor performance rating and termination and the previous lawsuit she filed against Microsoft.” Id. “Shortly after [both Blake and Mckinley] learn[ed] [about Cornwell’s protected activity], and over the objection of other managers, Blake and McKinley gave Cornwell the lowest possible review rating, and Cornwell was laid off. ” Id.

The Court concluded that “[i]n light of this evidence, the trial court erroneously granted summary judgment to Microsoft.” Id. The Court “reverse[d] [the Court of Appeals] and remand[ed] the case to the trial court for further proceedings consistent with this opinion.” Id.

ISSUE #2: Should the Court adopt the “knew or suspected” standard for evaluating retaliation claims? Id. at 238-39.

[2-1] POLICY/PURPOSE – THE KNEW OR SUSPECTED STANDARD: “The purpose behind the ‘knew or suspected’ test is to protect employees from retaliation to the fullest extent possible:

It seems clear to this Court that an employer that retaliates against an employee because of the employer’s suspicion or belief that the employee filed a[ ] … complaint has as surely committed a violation of [the statute] as an employer that fires an employee because the employer knows that the employee filed a[ ] … complaint. Such construction most definitely furthers the purposes of the Act generally and the anti-retaliation provision specifically.

Id. at 238 (citing Reich v. Hoy Shoe Co., 32 F.3d 361, 368 (8th Cir. 1994) (alteration in original).

[2-2] POLICY/PURPOSE – WLAD RELIES ON ENFORCEMENT BY PRIVATE INDIVIDUALS: “It is well recognized that WLAD … relies heavily on private individuals for its enforcement. This reliance would be unrealistic, to say the least, ‘if this court does not provide them some measure of protection against retaliation.’ ” Id. (internal citations and quotation marks omitted) (alteration in original).

[2-3] POLICY/PURPOSE – RESTRICTING APPLICATION OF WLAD’S ANTIRETALIATION PROVISIONS CREATES INCONSISTENCIES: Restricting the application of WLAD’s antiretaliation provisions to instances of actual knowledge results in inconsistent protection of employees:

It would be a strange rule, indeed, that would protect an employee discharged because the employer actually knew he or she had engaged in protected activity but would not protect an employee discharged because the employer merely believed or suspected he or she had engaged in protected activity.

Id. (citing Reich, 32 F.3d at 368).

[2-4] POLICY/PURPOSE – EMPLOYMENT DECISIONS CAN BE BASED ON SUSPICION OR BELIEF: “Employers are not limited to retaliation decisions based on information they actually know to be true.” Id. at 238 (internal citation omitted). “Instead, ‘common sense and experience establish that employers also make employment decisions on what they suspect or believe to be true.’ ” Id.

[2-5] THE PRIMA FACIE CASE OF RETALIATION: “[A[s long as ‘[a] reasonable jury could infer from [a plaintiff’s] evidence’ that the plaintiff’s protected activity was a substantial factor in the adverse employment decision, that plaintiff has satisfied his or her burden of establishing a prima facie case of retaliation.” Id. at 239 (internal citation omitted) (alteration within original internal quote).

[2-6] THE KNEW OR SUSPECTED STANDARD IS CONSISTENT WITH PURPOSES OF WLAD: In this case, the Court first determined that “construing WLAD ‘to protect employees from adverse employment actions because they are suspected of having engaged in protected activity is consistent with the general purposes of the Act and the specific purposes of the antiretaliation provisions.’ ” Id. at 238 (internal citation omitted) (emphasis in original).

[2-7] DEFENDANT MIRCORSOFT’S ARGUMENT: THE STANDARD LEADS TO STRICT LIABILITY, ELIMINATES CAUSATION ELEMENT, AND INVITES SPECULATION : The Court then considered that “Microsoft and amici curiae the Association of Washington Business and the Chamber of Commerce of the United States of America contest adoption of the ‘knew or suspected’ standard.” Id.

Accordingly, “[both] … argue[d] that adopting the standard leads to strict liability for employers, eliminates the causation element of a retaliation prima facie case, and invites speculation into the summary judgment phase.” Id. The Court found each of their arguments unpersuasive.

[2-7a] THE KNEW OR SUSPECTED STANDARD DOES NOT LEAD TO STRICT LIABILITY OR ELIMINATE THE CAUSATION ELEMENT: In this case, the Court found that “[t]he ‘knew or suspected’ test does not lead to strict liability or eliminate the requirement that a retaliation be intentional.” Id. at 238.

“Instead, the test eliminates the right of employers to intentionally retaliate against employees that they suspect but do not actually know to have taken protected action.” Id.

“An employee must still produce sufficient evidence that his or her protected activity was a substantial factor in the employer’s decision to take adverse action against the employee.” Id. (citing Allison, 118 Wn.2d at 96, 821 P.2d 34) (emphasis added). Accordingly, the causation element is preserved.

[2-7b] THE KNEW OR SUSPECTED STANDARD DOES NOT INVITE SPECULATION INTO THE SUMMARY JUDGMENT PHASE: In this case, the Court asserted that “the [‘knew or suspected’] standard requires the production of evidence; mere speculation will not suffice to defeat summary judgment.” Id. at 238-39 (citing Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 359-60, 753 P.2d 517 (1988) (“The ‘facts’ required by CR 56(e) to defeat a summary judgment motion are evidentiary in nature. Ultimate facts or conclusions are insufficient. Likewise, conclusory statements of fact will not suffice.” (citation omitted) ) (internal quotation marks omitted) (emphasis added).

The Court concluded that “as long as ‘[a] reasonable jury could infer from [a plaintiff’s] evidence’ that the plaintiff’s protected activity was a substantial factor in the adverse employment decision, that plaintiff has satisfied his or her burden of establishing a prima facie case of retaliation.” Id. at 239 (internal citation omitted) (alteration, within internal quote, in original ) (emphasis added).

[2-8] THE COURT ADOPTS THE “KNEW OR SUSPECTED” STANDARD: “For these [above] reasons, [the Court] … adopt[ed] the “knew or suspected” standard because it furthers WLAD’s purpose of protecting employees from retaliation.” Id. at 239.

NOTABLES & IMPLICATIONS:

(1) CIRCUMSTANTIAL EVIDENCE: THE PROXIMITY-IN-TIME CLOCK STARTS WHEN WRONGDOER LEARNS OF PROTECTED ACTIVITY: “To properly evaluate whether there is sufficient circumstantial evidence of retaliation, we must focus on the proximity between when [the actual wrongdoer(s)] … learned of the [protected activity] … and the adverse employment actions that they subsequently took.” See id. at 241, n. 10.

In this case, Blake and McKinley, as wrongdoers, learned about Cornwell’s protected activity when Blake and McKinley (i.e., wrongdoers) had actual knowledge that Cornwell filed the prior lawsuit against Microsoft; not when Cornwell actually filed the prior lawsuit against Microsoft. See id.

PROXIMITY IN TIME: A FEW MONTHS IS ENOUGH TO GIVE RISE TO INFERENCE OF RETALIATORY MOTIVE: Moreover, a few months time between when the wrongdoers “learned of the lawsuit and the adverse employment actions that they subsequently took” is considered “enough to give rise to a reasonable inference of retaliatory motive. Id. at 241, n. 10. In this case:

Cornwell told Blake about the lawsuit in late 2011. In July 2012, Blake and McKinley rated Cornwell as a “5,” and Cornwell was laid off in September 2012.

Id. at 241, n. 9. These timeframes were enough for Cornwell to establish a reasonable inference of retaliatory motive.

(2) THE DISSENT (GORDON MCCLOUD, J.): MAJORITY’S ANALYSIS IS OVER-INCLUSIVE AS TO TORTS & UNDERINCLUSIVE AS TO GENDER DISCRIMINATION: In this case, Judge Gordon McCloud dissented and both agreed and disagreed with the majority. The dissent agreed as follows:

[I] agree with the majority’s main conclusion that a plaintiff can show retaliatory discharge in violation of the Washington Law Against Discrimination (WLAD), RCW 49.60.030, without showing that the employer had actual knowledge of the plaintiff’s prior protected activity. A plaintiffs showing that the employer suspected that the plaintiff had previously engaged in WLAD-protected activity is enough to establish the causation requirement of a WLAD retaliatory discharge claim.

Id. at 239. However, the dissent disagreed with the majority as follows:

But I disagree with the majority’s application of that legal standard to the facts of this case. The majority identifies nothing in the record showing that Dawn Cornwell’s current supervisors knew or suspected that her prior lawsuit involved the WLAD-prohibited activity of sex discrimination.

Id. (emphasis added).

The dissent reasoned that the majority’s “analysis creates a standard that is both significantly over-inclusive in certain respects and significantly under-inclusive in other respects.” Id. at 239-240 (emphasis added).

DISSENT ASSERTS MAJORITY’S STANDARD IS OVER-INCLUSIVE: The dissent argued that “the majority’s analysis is [incorrectly] over-inclusive because it assumes that a female employee’s lawsuit about a male supervisor and a review score could not have alleged anything but sex discrimination.” Id. at 240. However, “[b]esides common law torts, such a lawsuit could allege any number of statutory retaliation claims that do not implicate the WLAD.” Id.

DISSENT ASSERTS MAJORITY’S STANDARD IS UNDERINCLUSIVE: Here, the dissent essentially argued that “the majority’s approach is also under-inclusive[,]” because sex discrimination in employment could also include “female supervisors vis-a-vis female or male employees.” Id. at 241.

(3) THE MAJORITY’S REBUTTAL TO THE DISSENT: DISSENT’S ANALYSIS IS TOO LIMITED & HYPOTHETICAL CLAIMS ARE SURPLUSAGE: In this case, the Court majority rebutted the dissent as follows:

Contrary to the dissent’s criticisms, it is because of all of the facts here discussed, not merely because Cornwell’s prior suit involved a male supervisor, that her claim survives summary judgment. Further, also despite the dissent’s assertions, we know that Cornwell’s prior suit related to sex discrimination; we do not make (or need to make) the “over-inclusive” assumption that all suits by a female employee against a male supervisor involve sex discrimination. Accordingly, the dissent’s list of hypothetical claims that might have been brought is surplusage.

Id. at 241 (internal citations omitted) (emphasis in original).

(4) THE “KNEW OR SUSPECTED” STANDARD: APPLIED IN 9TH CIRCUIT: “The ‘knew or suspected’ standard has been applied by the United States Court of Appeals, Ninth Circuit, as well as by other federal courts in the OSHA context.” Id. at 241, n. 11 (“See, e.g., Hernandez v. Spacelabs Med. Inc., 343 F.3d 1107 (9th Cir. 2003); Reich, 32 F.3d 361″).

(5) UNLAWFUL RETALIATION: ADVERSE EMPLOYMENT ACTIONS: POOR PERFORMANCE RATINGS: For purposes of proving a claim of unlawful retaliation, a poor employment performance evaluation rating that prevents an employee “from being considered for future rehiring … qualifies as an adverse employment action.” See id. at 241, n. 4 (referencing Jin Zhu v. N. Cent. Educ. Serv. Dist. — ESD 171, 189 Wn.2d 607 , 619, 404 P.3d 504 (2017) (“An employment action is adverse if it is harmful to the point that it would dissuade a reasonable employee from making complaints of … retaliation.”) (internal quotation marks and citation omitted).

(6) UNLAWFUL RETALIATION (WLAD): ISSUE OF 1ST IMPRESSION: QUANTUM OF EMPLOYMENT KNOWLEDGE: This WLAD unlawful-retaliation case presented the Washington State Supreme Court with an issue of first impression, as follows:

At issue here is the quantum of employer knowledge about the employee’s prior protected activity. We have yet to address this question in a case.

Id. at 235.

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July 7, 2021November 26, 2022

Robel v. Roundup Corporation, 148 Wn.2d 35 (Wash 2002)

This is a case summary of Robel v. Roundup Corporation, 148 Wn.2d 35 (Wash 2002). Subjects include, but are not limited to the following:

» DISABILITY-BASED HOSTILE WORK ENVIRONMENT

» WORKERS’ COMPENSATION ANTI-RETALIATION STATUTE

» INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

» DEFAMATION

IMPORTANT: This article is for informational purposes only and is based upon my point of view. This is not a resource for the actual and complete appellate court opinion. Due to the rapidly changing nature of the law, we make no warranty or guarantee concerning the accuracy or reliability of the content in this article. No content on this site, regardless of date, should ever be used as a substitute for direct legal advice from your attorney. Please review our Disclaimer|Terms of Use|Privacy Policy before proceeding.

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**Robel v. Roundup Corporation, 148 Wn.2d 35 (Wash 2002)**

case summarY – 22 Facts:

[1] This suit arises out of Linda Robel’s employment from May 31, 1995, to September 12, 1996, in the service deli at … [the] Fred Meyer store in Spokane.

[2] On July 14, 1996, Robel sustained a workplace injury and timely filed a workers’ compensation claim.

[3] In late July, Robel was given a light-duty assignment, “a four-hour shift” during which she stood “at a display table outside the deli area offering samples of food items to customers.”

[4] On August 1, 1996, as Robel worked at the display table, two deli workers “laughed” and “acted out a slip and fall,” as one of them yelled, “Oh, I hurt my back, L & I, L & I!”

[5] They “audibly called [Robel] a ‘bitc[-]’ and ‘cun[-].'”

[6] They also “told customers she had lied about her back and was being punished by Fred Meyer by ‘demoing’ pizzas.”

[7] In journal entries for August 2, 3, 10, and 11, Robel wrote that assistant deli manager Amy Smith and others made fun of her, laughed, pointed, and gave her “dirty looks.”

[8] Robel also noted that on August 13, Smith and other deli workers would “stare at [her], whisper out loud, & laugh, pretending to hurt their backs & laugh.”

[9] Robel reported the incidents to her union representative, … Banka.

[10] According to Robel’s journal, Banka came in on August 14, 1996, and set up a meeting with … Wissink, the store director, for Friday, August 16.

[11] At [a subsequent all-deli employee meeting, called by Wissink on August 19, 1996,] Wissink warned the employees that future harassment could result in termination.

[12] On August 22, 1996, deli workers “laughed and audibly admonished each other not to harass Robel.”

[13] On August 28 and 30, Robel noted in her journal that co-workers were talking about her and laughing at her, and she recorded that, on September 2, Smith and other workers “had a great time making fun of [her], calling [her] names[,] pretending to hurt their backs & yelling L & I.”

[14] On September 13, 1996, Robel secured a two-week work release from her doctor and gave it to Smith that same day.

[15] Before Robel left the deli, she overheard Smith comment to other deli employees, “Can you believe it, Linda’s gonna sit on her big ass and get paid.”

[16] Robel again contacted [her union rep], who in turn contacted Wissink on September 20, 1996.

[17] On September 24, Wissink telephoned Robel to confirm the allegations. Robel “told him about the C word and Bitc[-][,] the little plays they were doing about [her] back.”

[18] On September 28, 1996, Wissink terminated one employee.

[19] Robel never returned to work at Fred Meyer.

[20] On February 13, 1998, Robel filed suit against Fred Meyer, stating claims for disability discrimination …, retaliation for filing a workers’ compensation claim …, negligent and intentional infliction of emotional distress, and defamation.

[21] The trial court denied Fred Meyer’s motion for summary judgment … [f]inding for Robel on all five causes of action[.]

[22] Fred Meyer appealed. The Court of Appeals reversed the trial court’s judgment on all claims.

Robel v. Roundup Corporation, 148 Wn.2d 35 (Wash 2002) (internal citations omitted) (hyperlink added).

ISSUE #1: Does the Washington Law Against Discrimination, Chapter 49.60 RCW, support an employee’s disability based hostile work environment claim?

[1-1] WASHINGTON LAW AGAINST DISCRIMINATION: Under the Washington Law Against Discrimination (WLAD), RCW 49.60, “It is an unfair practice for any employer to discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability.” Robel v. Roundup Corporation, 148 Wn.2d 35 (Wash 2002) (citing RCW 49.60.180(3)) (alteration to the original).

[1-2] RULES OF CONSTRUCTION: To determine whether the Washington Law Against Discrimination “supports a disability claim based on hostile work environment, [courts] may look to federal cases construing analogous federal statutes.” Id. (citing Fahn v. Cowlitz County, 93 Wash.2d 368, 376, 610 P.2d 857 (1980), 621 P.2d 1293 (1980)).

[1-3] ISSUE OF FIRST IMPRESSION: In this case, the Court determined that whether the Washington Law Against Discrimination supported a disability based hostile work environment was an issue of first impression in the State.

It reasoned that “just as the federal cases extended the Title VII hostile work environment claim (and its standards of proof) to the ADA, we may extend the reasoning in Glasgow to disability claims.” Id. at 45 (hyperlinks added).

Conclusion of the issue — **-CONCLUSION-**

[1-4] WLAD SUPPORTS DISABILITY-BASED HOSITLE WORK ENVIRONMENT CLAIMS: The Court held that “the [Washington Law Against Discrimination] … supports a disability based hostile work environment claim.” Id. at 43.

ISSUE #2: Did the trial court’s unchallenged findings of fact support its conclusion of law that Fred Meyer discriminated against Robel based upon her physical disability?

[2-1] DISABILITY BASED HOSTILE WORK ENVIRONMENT: In order to establish a disability based hostile work environment case, a plaintiff must prove “(1) that he or she was disabled within the meaning of the antidiscrimination statute[, WLAD], (2) that the harassment was unwelcome, (3) that it was because of the disability, (4) that it affected the terms and conditions of employment, and (5) that it was imputable to the employer.” Id. at 45.

[2-2] THE SECOND ELEMENT (UNWELCOME): To establish that the harassment was unwelcome, “the plaintiff must show that he or she ‘did not solicit or incite it’ and viewed it as ‘undesirable or offensive.'” Id. (citing Glasgow v. Georgia-Pac. Corp., 103 Wn.2d 401, 406, 693, P.2d 708 (Wash. 1985)).

[2-3] THE THIRD ELEMENT (BECAUSE OF DISABILITY): To establish that the harassment was “because of disability,” requires “[t]hat the disability of the plaintiff-employee be the motivating factor for the unlawful discrimination.” Id. at 46 (citing Glasgow, 103 Wash.2d at 406, 693 P.2d 708)) (alteration to the original). This element requires a nexus between the specific harassing conduct and the particular injury or disability. Id.

[2-4] THE FOURTH ELEMENT (TERMS & CONDITIONS OF EMPLOYMENT): To establish that the harassment affected the terms and conditions of employment, “the harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id. at (citing Glasgow, 103 Wash.2d at 406, 693 P.2d 708)) (alteration to the original).

“[A] satisfactory finding on this element should indicate “that the conduct or language complained of was so offensive or pervasive that it could reasonably be expected to alter the conditions of plaintiff’s employment.'” Id. (citing 6A WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 330.23, at 240) (alteration to the original) (hyperlink added).

[2-5] THE FIFTH ELEMENT (IMPUTABLE TO EMPLOYER): To impute harassment to an employer, “the jury must find either that (1) an owner, manager, partner or corporate officer personally participate[d] in the harassment or that (2) the employer … authorized, knew, or should have known of the harassment and failed to take reasonably prompt adequate corrective action.” Id. at 47 (internal citation and quotation marks omitted) (alteration to the original).

[2-6] THE FIRST ELEMENT (DISABLED): In this case, neither party contested that Robel’s injury was a disability under RCW 49.60.180(3). Id. at 35. Therefore, the Court did not further define disabled within the meaning of the antidiscrimination statute. Id.

[2-7] THE SECOND ELEMENT (UNWELCOME): The Court found that no findings suggested that Robel solicited or incited the remarks made about her workplace injury. Id. at 45. That Robel viewed the employer’s conduct as undesirable and offensive was at least implicit in her reporting the conduct to Banka (her Union Representative). Id. at 45-46.

[2-8] THE THIRD ELEMENT (BECAUSE OF DISABILITY): The trial court found that the verbal and non-verbal harassment of Robel in the work setting after July 14, 1996, was directly or proximately related to her disability and/or Fred Meyer’s perception of Robel as disabled. See id. at 46. The Court, in the instant case, elected not to substitute their judgment for that of the trial court. Id.

[2-9] THE FOURTH ELEMENT (TERMS & CONDITIONS OF EMPLOYMENT): The trial court found that Fred Meyer created a hostile and abusive work environment and that the environment was offensive to Robel. Id. at 46-47 (internal quotation marks omitted).

The Court, in the instant case, pointed to an additional trial court finding as follows: “Fred Meyer discriminated against Robel in the terms or conditions of employment when it participated in and/or failed to bring to an end … the verbal and non-verbal harassment of Robel in the work setting.” Id. at 47.

The Court found that this language echoed the “critical language from Glasgow and the pattern jury instruction”; it accepted the findings as “verities” and passed on “any reweighing of the evidence supporting them.” Id.

[2-10] THE FIFTH ELEMENT (IMPUTABLE TO EMPLOYER): The Court identified relevant trial court findings as follows:

[a] “Fred Meyer, through the acts of its managers, participated, authorized, knew and/or should have known of the verbal and non-verbal harassment of Robel in the work setting subsequent to July 14, 1996[;]”

[b] “Fred Meyer’s management personnel improperly participated in and/or allowed the verbal and non-verbal harassment in the work setting[;]”

[c] “deli manager Potts and assistant deli manager Smith were management personnel for purposes of employer liability[;]”

[d] “Fred Meyer’s remedial action … was not of such nature to have been reasonably calculated to end the harassment[;]”

[e] “[Fred Meyer’s] investigations and termination of [one co-worker] without further management corrections were inadequate[;]” and

[f] “the postinjury harassment was ‘imputed to Fred Meyer.'”

Id. at 48 (internal citations and quotation marks omitted) (lettered paragraphs added).

The Court found that these uncontested findings of fact satisfy both options derived from Glasgow. Id.

[2-11] COURT OF APPEALS REVERSED / TRIAL COURT JUDGMENT REINSTATED: The Court concluded “that the Court of Appeals erred when it ignored the trial court’s unchallenged findings of fact on the five essential elements of the claim.” Id. at 48. It then reversed “the Court of Appeals and reinstated the trial court’s judgment in Robel’s favor.” Id.

ISSUE #3: Did the trial court’s unchallenged findings of fact support the conclusion that Fred Meyer, in violation of RCW 51.48.025(1), retaliated against Robel for filing a workers’ compensation claim?

[3-1] WORKERS’ COMPENSATION ANTI-RETALIATION STATUTE: The Washington Industrial Insurance Act “provides that no employer may discharge or in any manner discriminate against any employee because such employee has filed or communicated to the employer an intent to file a claim for compensation or exercises any rights provided under this title.” Id. at 48-49 (citing RCW 51.48.025(1)) (emphasis in original).

[3-2] FRAMING THE ISSUE: In this case, the Court framed the issue essentially as follows: Whether the Workers’ Compensation Anti-Retaliation Statute, RCW 51.48.025(1), applies to an employer “who has allegedly discriminated in some way, short of discharge, against an employee because she filed a workers’ compensation claim[?]” See id. at 50.

[3-3] ELEMENTS OF THE CLAIM: It then found that, “by analogy with Wilmot v. Kaiser Aluminum & Chemical Corp., 118 Wn.2d 46, 68, 821 P.2d 18 (1991), which required proof of a causal connection between the filing of a claim and the allegedly retaliatory termination, Robel was required to prove [1] that she had filed a claim, [2] that Fred Meyer thereafter discriminated against her in some way, and [3] that the claim and the discrimination were causally connected.” Id. at 50.

[3-4] FINDINGS OF FACT SATISFY THE ELEMENTS: The Court held that “because the findings of fact satisfy these elements and were not challenged on appeal, we reverse the Court of Appeals on the retaliation claim and reinstate the trial court’s judgment in Robel’s favor.” Id.

ISSUE #4: Did the Court of Appeals properly hold as a matter of law that Robel’s claim for intentional infliction of emotional distress should not go to the trier of fact?

[4-1] IIED ELEMENTS: To succeed on a claim for outrage–also known as intentional infliction of emotional distress (IIED)–“a plaintiff must prove three elements: (1) extreme and outrageous conduct, (2) intentional or reckless infliction of emotional distress, and (3) severe emotional distress on the part of the plaintiff.” Id. at 51 (internal citations and quotation marks omitted) (emphasis added).

[4-2] QUESTIONS FOR THE JURY: The three elements are fact questions for the jury, and the first element of the test goes to the jury only after the court determines “if reasonable minds could differ on whether the conduct was sufficiently extreme to result in liability.” Id.

[4-3] EXTREME & OUTRAGEOUS CONDUCT: To establish the first IIED element, the plaintiff must prove “that the conduct was so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. (citing Dicomes v. State, 113 Wn.2d 612, 630, 782 P.2d 1002 (1989)) (internal quotation marks omitted).

[4-4] RELATIONSHIP BETWEEN PARTIES (IIED): In an outrage claim “[t]he relationship between the parties is a significant factor in determining whether liability should be imposed.” Id. at 52 (citing Contreras v. Crown Zellerback Corp., 88 Wn.2d 735, 741, 565 P.2d 1173 (1977)).

“The Contreras court emphasized that ‘added impetus’ is given to an outrage claim ‘[w]hen one in a position of authority, actual or apparent, over another has allegedly made racial slurs and jokes and comments.” Robel, 148 Wn.2d at 52 (citing Contreras, 88 Wn.2d 735, 741, 565 P.2d 1173 (1977); see also White v. Monsanto Co., 585 So.2d 1205, 1210 (La. 1991) (stating that “plaintiff’s status as an employee may entitle him to a greater degree of protection from insult and outrage by a supervisor with authority over him than if her were a stranger”)).

[4-5] VICARIOUS LIABILITY: “Once an employee’s underlying tort is established, the employer will be held vicariously liable if ‘the employee was acting within the scope of his employment.'” Id. at 53 (citing Dickinson v. Edwards, 105 Wn.2d 457, 469, 716 P.2d 814 (1986)).

“An employer can defeat a claim of vicarious liability by showing that the employee’s conduct was (1) ‘intentional or criminal’ and (2) ‘outside the scope of employment.'” Id. (citing Niece v. Elmview Group Home, 131 Wn.2d 39, 56, 929 P.2d 420 (1997) (emphasis in original), quoted with approval in Snyder v. Med. Servs. Corp. of E. Wash., 145 Wn.2d 233, 242-43, 35 P.3d 1158 (2001)).

[4-6] SCOPE OF EMPLOYMENT: “An employee’s conduct will be outside the scope of employment if it “is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.'” Id. (citing RESTATEMENT (SECOND) OF AGENCY § 228(2) (1958); see also RESTATEMENT, supra, § 228(1)).

[4-7] FIRST ELEMENT (EXTREME & OUTRAGEOUS CONDUCT): “Robel was called in her workplace names so vulgar that they have acquired nicknames, such as ‘the C word,’ for example.” Id. at 52. (internal citation omitted) (emphasis in original).

[4-8] VICARIOUS LIABILITY: “Fred Meyer deli workers tormented Robel on company property during working hours, as they interacted with co-workers and customers and performed the duties they were hired to perform. Nothing in the record suggests that the abusive employees left their job stations or neglected their assigned duties to launch the verbal attacks on Robel.” Id. at 54.

[4-9] REASONABLE MINDS COULD CONCLUDE EXTREME AND OUTRAGEOUS CONDUCT: On the threshold question (extreme and outrageous conduct) the Court concluded that reasonable minds could conclude that, in light of the severity and context of the conduct, it was beyond all possible bounds of decency, atrocious, and utterly intolerable in a civilized community. See id. at 51-52.

[4-10] FRED MEYER VICARIOUSLY LIABLE: The Court also concluded that Fred Meyer was vicariously liable, “that reasonable minds could find the complained-of conduct outrageous, and that the uncontested findings satisfied the three elements of outrage.” Id. at 54-55.

[4-11] COURT OF APPEALS REVERSED / REINSTATED TRIAL COURT’S JUDGMENT FOR ROBEL ON IIED: The Court then reversed the Court of Appeals and reinstated the trial court’s judgment for Robel on her claim for intentional infliction of emotional distress. Id. at 55. Because Robel was successful on this claim, the Court found it unnecessary to consider Robel’s companion claim for negligent infliction of emotional distress. Id.

ISSUE #5: Were the allegedly defamatory communications cited in the trial court’s findings capable of defamatory meaning?

[5-1] DEFAMATION: A defamation plaintiff must prove the following four essential elements: (1) falsity, (2) an unprivileged communication, (3) fault, and (4) damages. Id. at 55 (citing Mark v. Seattle Times, 96 Wn.2d 473, 486, 635 P.2d 1081 (1981), cert. denied, 457 U.S. 1124, 102 S.Ct. 2942, 73 L.Ed. 2d 1339 (1982)) (emphasis added).

[5-2] FALSITY: “Before the truth or falsity of an allegedly defamatory statement can be assessed, a plaintiff must prove that the words constituted a statement of fact, not an opinion. Because expressions of opinion are protected under the First Amendment, they are not actionable.” Id. (citing Camer v. Seattle Post-Intelligencer, 45 Wn.App. 29, 39, 723 P.2d 1195 (1986) (internal quotation marks and citations omitted) (emphasis added).

“Whether the allegedly defamatory words were intended as a statement of fact or an expression of opinion is a threshold question of law for the court.” Id. (internal citations omitted).

[5-3] TOTALITY OF THE CIRCUMSTANCES: To determine whether words should be viewed as nonactionable opinions, the court considers the totality of the circumstances surrounding those statements. Id. at 56.

[5-4] DUNLAP 3-FACTOR TEST: To determine whether a statement is nonactionable, a court should consider at least (1) the medium and context in which the statement was published, (2) the audience to whom it was published, and (3) whether the statement implies undisclosed facts.” Id. (citing Dunlap v. Wayne, 105 Wn.2d 529, 539, 716 P.2d 842 (1986)).

[5-5] THE VULGARISMS (I.E., “BITC-,” “CUN-,” “FUC-ING BITC-,” “FUC-ING CUN-“) ALONG WITH THE WORD “IDIOT”: The Court concluded that these vulgarisms along with the word “idiot” were plainly abusive words, but they were not intended to be taken literally as statements of fact. Id. Thus, they did not pass the threshold question of law.

[5-6] THE WORDS “SNITCH,” “SQUEALER,” AND “LIAR”: The Court considered the totality of the circumstances and applied the Dunlap Three-Factor Test. It held as a matter of law that these words also constituted nonactionable opinions. Id. at 56.

Regarding the first Dunlap Factor (Medium & Context): the Court found that the oral statements were made in circumstances and places that invited exaggeration and personal opinion. Id.

Regarding the second Dunlap Factor (The Audience): the Court found that the employee audience (i.e., Fred Meyer co-workers and management personnel) was “prepared for mischaracterization and exaggeration” and would have registered the words, if at all, “as expressions of personal opinion, not as statements of fact.” Id. at 57. And customers hearing the words “would reasonably perceive that the speaker was an antagonistic or resentful co-worker.” Id.

Regarding the third Dunlap Factor (Whether the Words Implied Undisclosed Defamatory Facts): deli workers would have known the facts ostensibly underlying the words, and the words disclosed to customers (i.e., “that Robel was demoing pizzas because she had lied about her back”) “implies no undisclosed defamatory facts.” Id. (internal quotation marks omitted).

[5-7] ALL OF THE UTTERANCES WERE NONACTIONABLE OPINIONS: The Court concluded that all of the utterances were nonactionable opinions and reaffirmed the reversal of the trial court’s judgment on Robel’s defamation claim. Id.

NOTABLES & IMPLICATIONS:

DISABILITY

(1) This case adds an additional initial element to the hostile work environment rule for cases based on disability: He or she must be disabled within the meaning of the Washington Law Against Discrimination.

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS (IIED)

(2) The standard for an outrage claim is very high (meaning that the conduct supporting the claim must be appallingly low). See id. at 51.

(3) Relationship Between Parties. In an outrage claim, “[t]he relationship between the parties is a significant factor in determining whether liability should be imposed.” Id. at 52 (citing Contreras v. Crown Zellerback Corp., 88 Wn.2d 735, 741, 565 P.2d 1173 (1977)).

“The Contreras court emphasized that ‘added impetus’ is given to an outrage claim ‘[w]hen one in a position of authority, actual or apparent, over another has allegedly made racial slurs and jokes and comments.” Id. (citing Contreras, 88 Wn.2d 735, 741, 565 P.2d 1173 (1977); see also White v. Monsanto Co., 585 So.2d 1205, 1210 (La. 1991) (stating that “plaintiff’s status as an employee may entitle him to a greater degree of protection from insult and outrage by a supervisor with authority over him than if her were a stranger”)).

PERSONAL JOURNALS / DIARIES

(4) In Washington State, an employee’s personal journal entries regarding discrimination at work might be allowed by the court to support a claim of unlawful employment discrimination. See, e.g., id. at 41.

SEXUAL HARASSMENT

(5) Washington Law Against Discrimination prohibits sexual harassment in employment, with such claims being generally categorized as quid pro quo harassment claims or hostile work environment claims. See id. at 43 (citing DeWater v. State, 130 Wn.2d 128, 134-35, 921 P.2d 1059 (1996)) (internal citations and quotation marks omitted).

TITLE VII & WLAD

(6) “The [Washington Law Against Discrimination,] … which applies with equal force to sex based and disability based employment discrimination, is analogous to Title VII and the ADA.” Id. at 44.

(7) Although federal cases interpreting Title VII are not binding on the Court, they are instructive and supportive. See id. at 44.

VICARIOUS LIABILITY

(8) Intentional or criminal conduct is not per se outside the cope of employment. Id. at 53.

(9) It is not the case that an employer will be vicariously liable only where it has specifically authorized an employee to act in an intentionally harmful or negligent manner. See id.

(10) An employer may not insulate itself from vicarious liability merely by adopting a general policy proscribing bad behavior that would otherwise be actionable. Id.

(11) The proper vicarious liability inquiry is whether the employee was fulfilling his or her job functions at the time he or she engaged in the injurious conduct. See id.

(12) When a servant steps aside from the master’s business in order to effect some purpose of his own, the master is not liable. Id. at 54 (citing Kuehn v. White, 24 Wn.App. 274, 277, 600 P.2d 679 (1979)) (internal quotation marks omitted).

(13) Where an employee’s acts are directed toward personal sexual gratification, the employee’s conduct falls outside the scope of his or her employment. See id.

WORKERS’ COMPENSATION ANTI-RETALIATION STATUTE

(14) To establish a claim of unlawful workers’ compensation retaliation, a plaintiff must prove (1) that the plaintiff filed a claim, (2) that the employer thereafter discriminated against the plaintiff is some way, and (3) that the claim and the discrimination were causally connected. See id. at 50.

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June 29, 2021May 26, 2022

Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735 (Wash. 1977)

This is a case summary of Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735 (Wash. 1977). Subjects include:

» TORT OF “OUTRAGE”

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**Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735 (Wash. 1977)**

case summarY – 4 PRIMARY Facts:

[1] David Contreras and his wife brought an action against Crown Zellerbach Corporation alleging five causes of action based upon allegedly abusive and improper conduct of Crown Zellerbach’s employees and supervisory personnel.

[2] Appellants’ complaint alleges the following facts:

[a] David Contreras and his wife lived in Cathlamet where Mr. Contreras was employed by respondent through the fall and winter of 1973.

[b] He was wrongfully terminated on January 24, 1974.

[c] During the time of his employment he was subjected to continuous humiliation and embarrassment by reason of racial jokes, slurs and comments made in his presence by agents and employees of the defendant corporation on the job site and during working hours.

[d] Respondent’s foreman and managing agents failed to control their employees and to accord appellant the right to work free of racial discrimination, slurs, comments and pressures.

[e] Respondent’s agents and employees, while acting within the scope of their employment, both while appellant was employed and after his discharge, made numerous statements accusing appellant wrongfully of stealing property owned by respondent.

[f] The effect of these untrue statements was to prevent appellant from seeking and holding permanent employment in the Cathlamet area and to hold him and his wife up to public scorn and ridicule.

[g] Some of the statements made by respondent’s agents and employees were made maliciously or with knowledge of their falsity or when they should have known the statements were false.

[h] This conduct resulted in an inability of appellant to obtain employment which in turn made him unable to pay his bills and ruined an otherwise excellent credit rating.

[i] His failure to find full-time employment is a direct and proximate result of respondent’s agents and employees’ slander and racial actions.

[j] Appellant’s [(i.e., the Contreras’)] claim for relief is that respondent’s conduct was intentional or reckless and so extreme in degree as to be beyond all reasonable bounds of decency.

[k] Such conduct in turn caused him severe emotional distress by reason of the acts of intimidation, demotions, humiliations and public exposure to scorn and ridicule when respondent’s agents knew or should have known that appellant, by reason of his nationality and background as a Mexican-American, was particularly susceptible to emotional distress from defendant’s conduct.

[l] He alleges respondent’s conduct thereby amounts to the tort of outrage.

[3] Crown Zellerbach moved to dismiss the first claim for relief, which is premised upon the tort of outrage, for failure to state a claim.

[4] The trial court granted this motion to dismiss and Contreras appeals.

Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735, 565 P.2d 1173 (Wash. 1977) (internal citations omitted).

ISSUE #1: Did the trial court err in granting Crown Zellerbach’s motion to dismiss Contreras’ first claim for relief premised upon the tort of outrage?

[1-1] TORT OF OUTRAGE — RESTATEMENT (SECOND) OF TORTS § 46: The “Restatement (Second) of Torts § 46 reads as follows:

(1) One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress, and if bodily harm to the other results from it, for such bodily harm.

(2) Where such conduct is directed at a third person, the actor is subject to liability if he intentionally or recklessly causes severe emotional distress

(a) to a member of such person’s immediate family who is present at the time, whether or not such distress results in bodily harm, or

(b) to any other person who is present at the time, if such distress results in bodily harm.”

Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735, 745, n. 1 (Wash. 1977).

[1-2] LIMITATIONS (INTENTIONAL/RECKLESS): “In Grimsby v. Samson, 85 Wash.2d 52, 59, 530 P.2d 291, 295 (1975), we adopted many of the comments to Restatement (Second) of Torts § 46, and stressed: First, the emotional distress must be inflicted intentionally or recklessly ; mere negligence is not enough.” Id. at 744, n.2, 565 P.2d 1173 (internal quotation marks omitted) (emphasis added).

[1-3] LIMITATIONS (OUTRAGEOUS & EXTREME): “In Grimsby v. Samson, 85 Wash.2d 52, 59, 530 P.2d 291, 295 (1975), we adopted many of the comments to Restatement (Second) of Torts § 46, and stressed: . . . Second, the conduct of the defendant must be outrageous and extreme. . . . it is not enough that a defendant has acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort.” Id. at 745, n.2, 565 P.2d 1173 (internal quotation marks omitted) (emphasis added).

“Liability exists ‘only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ (Italics ours.)” Id.

“Comment d further points out that liability in the tort of outrage ‘does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’ ” Id. “In this area plaintiffs must necessarily be hardened to a certain degree of rough language, unkindness and lack of consideration.” Id. “Clearly a case-by-case approach will be necessary to define the precise limits of such conduct.” Id.

“Nevertheless, among the factors a jury or court should consider are the position occupied by the defendant (comment e ), whether plaintiff was peculiarly susceptible to emotional distress and defendant’s knowledge of this fact (comment f ), and whether defendant’s conduct may have been privileged under the circumstances (comment g ).” Id.

[1-4] LIMITATIONS (SEVERE EMOTIONAL DISTRESS): “In Grimsby v. Samson, 85 Wash.2d 52, 59, 530 P.2d 291, 295 (1975), we adopted many of the comments to Restatement (Second) of Torts § 46, and stressed: . . . Third, the conduct must result in severe emotional distress to the plaintiff (comment j ).” Id. at 745, n.2, 565 P.2d 1173 (emphasis added).

“Resulting bodily harm would, of course, be an indication of severe emotional distress, but a showing of bodily harm is not necessary.” Id. (internal quotation marks omitted).

[1-5] THE INITIAL DETERMINATION: “With the[ ] limitations in mind, the trial court first determines whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” Id. at 740, 565 P.2d 1173 (internal citations omitted).

[1-6] RACIALLY DISCRIMINATORY ACTION: According to the Washington State Supreme Court: “In Browning v. Slenderella Systems, 54 Wash.2d 440, 341 P.2d 859 (1959), we held recovery could be premised upon tort liability for emotional distress, unaccompanied by any physical injury where the victim was injured by racially discriminatory action.” Id. at 739, 565 P.2d 1173.

“The court there recognized that the 1948 supplement to Restatement of Torts § 46 changed the language in the initial statement in Restatement, Torts (1934), § 46, to allow recovery from ‘(o)ne who, without a privilege to do so, intentionally causes severe emotional distress to another . . .’ ” Id. (alteration in original). “In its opinion this court quoted subsection (g) of the then section 46:

(g) In short, the rule stated in this section imposes liability for intentionally causing severe emotional distress in those situations in which the actor’s conduct has gone beyond all reasonable bounds of decency. The prohibited conduct is conduct which in the eyes of decent men and women in a civilized community is considered outrageous and intolerable. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse his resentment against the actor and lead him to exclaim ‘Outrageous!’ “

Id. at 740, 565 P.2d 1173 (citing Browning v. Slenderella Systems at 447-48, 341 P.2d at 864).

[1-7] POSITIONS OF AUTHORITY & OUTRAGEOUS BEHAVIOR: “When one in a position of authority, actual or apparent, over another has allegedly made racial slurs and jokes and comments, this abusive conduct gives added impetus to the claim of outrageous behavior.” Id. at 741, 565 P.2d 1173 (citing Restatement (Second) of Torts § 46 comment e).

“The relationship between the parties is a significant factor in determining whether liability should be imposed.” Id. (internal citations omitted).

[1-8] FORCED TO REMAIN IN PHYSICAL PROXIMITY OF RACIAL SLURS & COMMENTS: “Where a person is not free to leave but must remain in physical proximity to others who continually make racial slurs and comments, it is for the jury to determine both whether this is a factor in making the claim one of extreme outrage and the extent to which the employer was or should have been aware of these conditions, through its supervisory personnel or by other means.” Id. at 741, 565 P.2d 1173.

[1-9] PLAINTIFF’S OWN SUSCEPTIBILITY TO DISCRIMINATORY CONDUCT: “Plaintiff’s own susceptibility to racial slurs and other discriminatory conduct is a question for the trier of fact, and cannot be determined on demurrer.” Id. at 742, 565 P.2d 1173. “It is for the trier of fact to determine, taking into account changing social conditions and plaintiff’s own susceptibility, whether the particular conduct was sufficient to constitute extreme outrage.” Id.

[1-10] MOTION TO DISMISS — CR 12(b)(6): “In determining whether to dismiss appellants’ claim, this court must consider respondent’s challenge within the framework of CR 12(b)(6).” Id. at 742, 565 P.2d 1173.

“A motion to dismiss questions only the legal sufficiency of the allegations in a pleading.” Id. “The court need not find that any support for the alleged facts exists or would be admissible in trial as would be its duty on a motion for summary judgment.” Id.

“The question under CR 12(b)(6) is basically a legal one, and the facts are considered only as a conceptual background for the legal determination.” Id. (citing Brown v. MacPherson’s, Inc., 86 Wash.2d 293, 298, 545 P.2d 13 (1975)).

“The only issue Before the trial judge is whether it can be said there is no state of facts which plaintiff could have proven entitling him to relief under his claim.” Id. (citing Barnum v. State, 72 Wash.2d 928, 435 P.2d 678 (1967); Grimsby v. Samson, supra 85 Wash.2d at 55, 530 P.2d 291).

[1-11] STANDING: In this case, the Court initially determined that the trial court misapplied Grimsby v. Samson, 85 Wash.2d 52, 530 P.2d 291 (1975) to the instant case; essentially, the trial court, in misapplying Grimsby, “believed by our emphasis on the fact that the plaintiff must be an immediate family member of the person who is the object of the defendant’s actions, that it was our intent to limit this tort to third-person situations only.” Id. at 738, 565 P.2d 1173 (emphasis added).

The Court clarified that “[t]here is no reason to limit recovery on the tort of outrage to members of the family of those directly injured while excluding recovery by the person primarily injured and we decline to do so.” Id. at 738 (internal citations omitted).

“A vast majority of cases involving the tort of outrage have been actions brought by the recipient of the conduct.” Id. at 738 (citing Agis v. Howard Johnson Co., Mass., 355 N.E.2d 315 (1976); Womack v. Eldridge, 215 Va. 338, 210 S.E.2d 145 (1974); Alcorn v. Anbro Engineering, Inc., 2 Cal.3d 493, 86 Cal.Rptr. 88, 468 P.2d 216 (1970); see Annot., 64 A.L.R.2d 100 (1959)).

[1-12] LIABILITY BASED ON RACIALLY DISCRIMINATORY ACTION: The Court then determined that “[i]n Browning v. Slenderella Systems, 54 Wash.2d 440, 341 P.2d 859 (1959), we held recovery could be premised upon tort liability for emotional distress, unaccompanied by any physical injury where the victim was injured by racially discriminatory action.” Id. at 739, 565 P.2d 1173.

Accordingly, the Court found that “liability could be premised on outrageous conduct such as that alleged [in the instant case].” Id. at 740 (emphasis added).

[1-13] ADEQUACY OF CLAIM: Next, the Court considered the Respondent’s argument: “[E]ven if it is held the direct recipient of allegedly outrageous conduct may bring suit based upon the tort of outrage, the claim here stated is inadequate.” Id. at 740, 565 P.2d 1173.

The Court concluded that “[w]ith the limitations in mind, the trial court first determines whether the defendant’s conduct may reasonably be regarded as so extreme and outrageous as to permit recovery.” Id. at 740.

The Court then addressed the law regarding positions of authority, relationship between the parties, and issues regarding physical proximity to those making racial slurs and comments.

[1-14] PLAINTIFF’S SUSCEPTIBILITY TO RACIAL SLURS & OTHER DISCRIMINATORY CONDUCT: Lastly, the Court considered the “defendants’ contention that plaintiff, as a truckdriver must have become accustomed to such abusive language.” Id. at 742, 565 P.2d 1173.

The Court concluded that “[i]t is for the trier of fact to determine, taking into account changing social conditions and plaintiff’s own susceptibility, whether the particular conduct was sufficient to constitute extreme outrage.” Id.

[1-15] PLAINTIFF’S EMOTIONAL DISTRESS CLAIM WITHIN PARAMETERS OF TORT OF OUTRAGE: The Court first declared that “[i]n determining whether to dismiss appellants’ claim, this court must consider respondent’s challenge within the framework of CR 12(b)(6).” Id. at 742.

Accordingly, the Court held as follows:

Viewed in this light, appellant’s claim that he was subjected to intentional or reckless conduct on the part of respondent which was beyond all reasonable bounds of decency and caused him severe emotional distress by reason of acts of intimidation, demotions, humiliation in public and exposure to scorn and ridicule, when respondent’s agents knew or should have known that by reason of his Mexican nationality and background he was particularly susceptible to emotional distress as a result of respondent’s conduct, is within the parameters of the tort of outrage as defined by our cases and the Restatement (Second) of Torts § 46(1).

Id. at 742-43, 565 P.2d 1173.

Accordingly, the Court reversed the trial court’s judgment of dismissal. Id. at 743.

NOTABLES & IMPLICATIONS:

1. CONCURRENCE — IN THE RESULT ONLY (JUDGES STAFFORD, HICKS & BRACHTENBACH)

In this case, Judge Stafford wrote a concurrence in result only wherein Judges Hicks and Brachtenbach concurred; Stafford asserted, in part, as follows:

We cannot say, as a matter of fact or a matter of law, that the alleged conduct in this case is the equivalent of the tort of outrage. It is actionable only, if after considering all of the surrounding circumstances, a jury concludes that the conduct is so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and should be regarded as atrocious and utterly intolerable in a civilized society. We hold only that the allegations, if proved, provide a jury question. Restatement (Second) of Torts § 46 comment h.

Id. at 744-45, 565 P.2d 1173.

2. HISTORY OF THE TORT OF OUTRAGE

“Liability for outrage is of ancient lineage.” Id. at 738, 565 P.2d 1173. “The law in the classical age of the Roman Empire allowed recovery for outrage or insult as the delict of ‘iniuria.’ ” Id. “It required an intent to insult and that anger be shown as soon as the facts were known. Intent to insult, however, could be presumed from the facts, which spoke for themselves.” Id. at 738-39.

“Defamation under Roman law was also a case of ‘iniuria,’ where the basis of liability was not loss of reputation but outrage to feelings.” Id. at 739. “Publication to a third party was thus arguably unnecessary.” Id. (citing W. Buckland and A. McNair, Roman Law and Common Law 295-300 (1936)).

“Acceptance of the tort of outrage has undergone a remarkable evolutionary process in the United States in a relatively short time.” Id. at 739, 565 P.2d 1173. “Section 46 of the Restatement of Torts in its original form stated flatly there was no liability for the intentional infliction of emotional distress, or for bodily harm resulting from it, except in cases of assault and of the special liability of carriers covered in section 48.” Id. “This position was reversed in the 1948 supplement and the comments were completely rewritten.” Id. (citing Restatement (Second) of Torts § 46 at 21 (Tent. Draft No. 1, 1957)).

“The Restatement and courts supporting it have since drastically changed their position, from denial of liability for intentionally inflicting emotional distress to the allowance of liability against one who intentionally caused emotional distress without privilege to do so, and later to the present rule which requires that the conduct be extreme and outrageous Before liability will attach.” Id. (citing Pakos v. Clark, 253 Or. 113, 453 P.2d 682 (1969)).

3. RACIAL SLURS AND OTHER DISCRIMINATORY CONDUCT

PHYSICAL PROXIMITY: “Where a person is not free to leave but must remain in physical proximity to others who continually make racial slurs and comments, it is for the jury to determine both whether this is a factor in making the claim one of extreme outrage and the extent to which the employer was or should have been aware of these conditions, through its supervisory personnel or by other means.” Id. at 741, 565 P.2d 1173.

QUESTION FOR TRIER OF FACT: “As we as a nation of immigrants become more aware of the need for pride in our diverse backgrounds, racial epithets which were once part of common usage may not now be looked upon as ‘mere insulting language.’ ” Id. at 741, 565 P.2d 1173. “Changing sensitivity in society alters the acceptability of former terms.” Id. “It is noted in Alcorn v. Anbro Engineering, Inc., [2 Cal.3d 493, 498 n.4, 86 Cal.Rptr. 88, 91, 468 P.2d 216 (1970)] . . . :

[P]laintiff’s own susceptibility to racial slurs and other discriminatory conduct is a question for the trier of fact, and cannot be determined on demurrer.

Id. at 742, 565 P.2d 1173.