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.

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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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 11, 2021May 26, 2022

Alonso v. Qwest Communications Company, LLC, 178 Wn.App. 734 (Div. 2 2013)

This is a case summary of Alonso v. Qwest Communications Company, LLC, 178 Wn.App. 734 (Div. 2 2013). Subjects include, but are not limited to, the following:

» DIRECT EVIDENCE TEST

» DISPARATE TREATMENT

» HOSTILE WORK ENVIRONMENT

» UNLAWFUL RETALIATION

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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Alonso v. Qwest Communications Company, LLC, 178 Wn.App 734 (Div. 2 2013) — **Alonso v. Qwest Communications Company, LLC, 178 Wn.App. 734 (Div. 2 2013)**

case summarY – 5 Facts:

[1] Joseph Alonso sued his employer, Qwest Communications Company LLC, and his supervisor for discrimination [based on his combat veteran, disabled person, and Mexican-American statuses.]

[2] [T]he superior court granted Qwest summary judgment dismissal of Alonso’s complaint.

[3] Alonso appeals, arguing that he provided sufficient evidence to establish prima facie discrimination claims for disparate treatment, hostile work environment, and unlawful retaliation.

[4] [The Court held] that Alonso established prima facie disparate treatment and hostile work environment claims [and reversed] the superior court’s summary judgment dismissal on those matters.

[5] [The Court held] that Alonso failed to establish a prima facie retaliation case … [and affirmed] the superior court’s summary judgment dismissal of that claim.

Alonso v. Qwest Communications Company, LLC, 178 Wn.App. 734 (Div. 2 2013).

ISSUE #1: Did Alonso sufficiently establish a prima facie disparate treatment case under the direct evidence test?

[1-1] DISPARATE TREATMENT: Disparate treatment is a form of discrimination that “occurs when an employer treats some people less favorably than others because of race, color, religion, sex, or other protected status.” Alonso v. Qwest Communications Company, LLC, 178 Wn.App. 734, 743 (Div. 2 2013) (citing Hegwine v. Longview Fibre Co., 162 Wn.2d 340, 354 n. 7, 172 P.3d 688 (2007)).

“To establish a prima facie disparate treatment discrimination case, a plaintiff must show that his employer simply treats some people less favorably than others because of their protected status.” Id. (citing Johnson v. Dep’t of Soc. & Health Servs., 80 Wn.App. 212, 226, 907 P.2d 1223 (1996)).

[1-2] PRIMA FACIE TEST (2 OPTIONS): “A plaintiff can establish a prima facie case by either[:]

[1.] offering direct evidence of an employer’s discriminatory intent, or …

[2.] satisfying the McDonnell Douglas burden-shifting test that gives rise to an inference of discrimination.

Id. at 743-44 (citing Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 491, 859 P.2d 26, 865 P.2d 507 (1993)) (emphasis and paragraph formatting added).

[1-3] DIRECT EVIDENCE TEST (2 REQUIREMENTS): “[A] plaintiff can establish a prima facie case by providing direct evidence that[:]

(1) the defendant employer acted with a discriminatory motive and

(2) the discriminatory motivation was a significant or substantial factor in an employment decision.

Id. at 744 (citing Kastanis, 122 Wn.2d at 491) (paragraph formatting added).

[1-4] EMPLOYER’S DISCRIMINATORY REMARKS GENERALLY CONSIDERED DIRECT EVIDENCE OF DISCRIMINATION: “We generally consider an employer’s discriminatory remarks to be direct evidence of discrimination.” Id. (referencing Johnson v. Express Rent & Own, Inc., 113 Wn.App. 858, 862-63, 56 P.3d 567 (2002) (“reversing summary judgment based on supervisor’s ageist comments that plaintiff did not fit company’s image of a youthful, fit, ‘GQ’ looking mold” )).

[1-5] SIGNIFICANT OR SUBSTANTIAL FACTOR IN AN EMPLOYMENT DECISION: ADVERSE EMPLOYMENT ACTION: The plaintiff-employee “must next [establish that] … the discriminatory motive was a significant or substantial factor in an employment decision relating to … [plaintiff].” Id. at 746 (referencing Kastanis, 122 Wn.2d at 491).

Adverse Employment Action: “An adverse employment action involves a change in employment conditions that is more than an inconvenience or alteration of one’s job responsibilities, such as reducing an employee’s workload and pay.” Id. (citing Campbell v. State, 129 Wn.App. 10, 22, 118 P.3d 888 (2005), review denied, 157 Wn.2d 1002 (2006)).

Demotion, Adverse Transfer, and Hostile Work Environment: “A demotion or adverse transfer, or a hostile work environment, may also amount to an adverse employment action.” Id. (citing Kirby v. City of Tacoma, 124 Wn.App. 454, 465, 98 P.3d 827 (2004), review denied, 154 Wn.2d 1007 (2005)).

[1-6] ALONSO’S DIRECT EVIDENCE TEST: “To satisfy the direct evidence test, Alonso must show that Qwest acted with discriminatory motive in taking an adverse employment action against him based on his protected status as either a veteran, Mexican-American, or disabled person.” Id. at 744 (internal citations omitted).

[1-7] EVIDENCE OF DISCRIMINATORY MOTIVE (VETERAN STATUS):

In this case:

(a) Alonso recounted that Martinez “stated hatred of disabled combat veterans: ‘I will tell you what I hate[:] people that served in the first Gulf War for five days and claim a disability.’ “

(b) “the record demonstrates that Alonso was the only disabled Gulf War combat veteran at Qwest and that he claimed a 40 percent combat disability stemming from his service.”

(c) “Martinez knew of Alonso’s combat veteran status and, according to Alonso, even ‘stated that he hated the fact that I was receiving disability pay.’ “

Id. at 745 (alteration in original) (internal citations and quotation marks omitted). Accordingly, the Court found that “Martinez openly stated that he hated disabled Gulf War combat veterans and specifically that he hated that Alonso was disabled and receiving disability pay.” Id.

[1-8] EVIDENCE OF DISCRIMINATORY MOTIVE (NATIONAL ORIGIN & SPEECH IMPEDIMENT):

In this case:

(a) “… Alonso produced evidence that Martinez referred to Mexicans as ‘Spics’ and allowed others to use the term[ ]”;

(b) “[e]mployees including Martinez openly mocked Alonso’s speech impediment and accent;”

(d) “contrasted themselves to Alonso because they ‘spoke correct English,’ unlike him.”

Id. (internal citations omitted). “This open mocking based on Alonso’s national origin and speech impediment constitutes further direct evidence of discriminative intent, specifically relating to Alonso’s protected disability and national origin statuses.” Id.

[1-9] SIGNIFICANT OR SUBSTANTIAL FACTOR IN EMPLOYMENT DECISION (EVIDENCE OF ADVERSE EMPLOYMENT ACTION): In this case, Alonso claimed that he suffered adverse action through both adverse transfer and hostile work environment.

Adverse Transfer: Alonso claimed that he experienced an adverse transfer causing him to lose certain benefits including a newer van, cellular phone, and other preferences regarding equipment. Id. at 746.

Due to conflicting evidence, the Court raised and dismissed the rule in O’Neal v. City of Chicago, 392 F.3d 909, 912 (7th Cir. 2004), essentially establishing that loss of benefits do not amount to an adverse employment action when those benefits were associated with the position from which the plaintiff transferred. See id. at 746.

The Court viewed the evidence in a light most favorable to Alonso and held that his “benefits” were not tied to the position from which he transferred, and, thus, a reasonable juror could conclude that he suffered an adverse employment action when he transferred from his original position and was forced to give up those “benefits.” Id. at 747

Hostile Work Environment: Alonso also argued that he experienced adverse action in that he “suffered from a negative employment decision–being subjected to an increasingly hostile work environment as the subject of harassment targeting his protected statuses.” Id. at 747.

The Court considered derogatory comments made by Martinez and other employees, as described above, and it also considered the following additional comments allegedly made by Martinez regarding Alonso’s veteran status and PTSD: “[A]re you crazy or something?” and “[D]id you know Vietnam was over in 1978?” Id. at 748 (internal citations omitted).

“Viewed in a light most favorable to Alonso, the evidence showed … [:]

[a] Martinez and other employees openly bullied and condoned the bullying of Alonso because of his accent stemming from his Mexican-American heritage and speech impediment disability, as well as his disabled veteran status[ ] [;]

[b] [t]he bullying was so pervasive that other employees noticed and sympathized with Alonso;

[c] one co-worker opined that Alonso’s treatment was so bad that ‘[i]t was evident in the way that Ben Martinez treated Joseph Alonso that he did not like him and that he was trying to make Joseph’s working conditions so poor that Joseph would quit.’

Id. (internal citations omitted) (one alteration in original). “Because of the severity of this unbridled bullying and harassment, this hostile work environment amounted to an adverse employment action.” Id.

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

[1-10] ALONSO ESTABLISHED A PRIMA FACIE DISPARATE TREATMENT CASE UNDER DIRECT EVIDENCE TEST: The Court held that “Alonso sufficiently established a prima facie disparate treatment case under the direct evidence test.” Id.

It further held that “Alonso produced direct evidence of (1) Martinez’s discriminatory motive–his hatred toward Alonso as a disabled Gulf War veteran with a speech impediment and (2) how he suffered adverse employment decisions–loss of his newer van and cell phone, and an increasingly hostile work environment laden with bullying and mockery of his Mexican-American heritage and disabilities.” Id

ISSUE #2: Did Alonso establish a prima facie hostile work environment claim?

[2-1] HOSTILE WORK ENVIRONMENT: “To establish a prima facie hostile work environment claim, the plaintiff must allege facts proving that[:]

(1) the harassment was unwelcome,

(2) the harassment was because the plaintiff was a member of a protected class,

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

(4) the harassment is imputable to the employer.

Id. at 749 (citing Loeffelholz v. Univ. of Wash., 175 Wn.2d 264, 275, 285 P.3d 854 (2012)) (paragraph formatting added).

Actionable Harassment: “Harassment is actionable only if it is sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” Id. (citing Antonius v. King County, 153 Wn.2d 256, 261, 103 P.3d 729 (2004)).

[2-2] HARASSMENT BECAUSE OF PROTECTED CLASS (2ND ELEMENT): To establish the 2nd element of a hostile work environment claim–that the harassment was because the plaintiff was a member of a protected class–“a plaintiff need only produce evidence that supports a reasonable inference that his protected class status was the motivating factor for the harassing conduct.” Id. at 749 (internal citations and quotation marks omitted).

[2-3] HARASSMENT AFFECTED TERMS & CONDITIONS (3RD ELEMENT): “To determine whether conduct was severe or pervasive enough to affect the terms and conditions of employment…[courts] look at the totality of the circumstances, including the frequency and severity of harassing conduct, whether it was physically threatening or humiliating, or merely an offensive utterance, and whether it unreasonably interfered with the employee’s work performance.” Id. at 751 (citing Washington v. Boeing Co., 105 Wn.App. 1, 10, 119 P.3d 1041 (2000)).

“Whether offensive comments affect the conditions of employment is a factual question.” Id. (referencing Davis v. W. One Auto. Grp., 140 Wn.App. 449, 457, 166 P.3d 807 (2007), review denied, 163 Wn.2d 1040 (2008)). However, “causal, isolated, or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law.” Id. (citing Washington, 105 Wn.App. at 10).

[2-4] HARASSMENT IMPUTABLE TO EMPLOYER (4TH ELEMENT): “Harassment is imputed to an employer when an owner, manager, partner, or corporate officer personally participates in the harassment.” Id. at 754 (citing Glasgow v. Ga.-Pac. Corp., 103 Wn.2d 401, 407, 693 P.2d 708 (1985)). “Managers are those whom the employer has given authority and power to affect the hours, wages, and working conditions of the employer’s workers.” Id. (citing Robel v. Roundup Corp., 148 Wn.2d 35, 48 n. 5, 59 P.3d 611 (2002)).

[2-5] UNWELCOME (1ST ELEMENT): The Court found that it was undisputed between the parties that Alonso did not welcome any hostility or harassment. Id. at 749.

[2-6] HARASSMENT BECAUSE OF PROTECTED CLASS (2ND ELEMENT): The Court considered Alonso’s offered evidence regarding military status (Martinez expressed hatred that Alonso was a disabled Gulf War combat vet and he compared his vet status to Alonso’s); regarding race (Martinez and others subjected Alonso to racially derogatory language (established above)); and regarding disability (he was a victim of open mocking for his speech impediment (established above)). See id. at 749-50.

Accordingly, the court determined that Alonso satisfied this element in establishing a prima facie hostile work environment claim. See id. at 750-51.

[2-7] HARASSMENT AFFECTED TERMS & CONDITIONS (3RD ELEMENT): The Court considered the evidence referenced under element 2 above and also considered that “Alonso visited a psychiatric emergency room in response to the ‘great stress at work’ and an upsurge in PTSD symptoms.” Id. at 752.

The Court held that Alonso “sufficiently demonstrated that the alleged harassment affected the terms and conditions of his employment.” Id.

[2-8] HARASSMENT IMPUTABLE TO EMPLOYER (4TH ELEMENT): Alonso’s supervisor, Martinez, set his crew’s hours, managed how employees were to spend their time on projects, controlled overtime, and controlled placement on out-of-town projects. See id. at 752-53.

Thus, Martinez qualified as a manager for purposes of summary judgment, because he had authority to affect employee’s hours, wages (via delegating overtime) and working conditions. See id. The Court also found that Martinez participated in some of the harassment as described above. Id. at 753.

Alonso established the harassment is imputable to the employer through supervisor Martinez. Id.

[2-9] ALONSO ESTABLISHED A PRIMA FACIE HOSTILE WORK ENVIRONMENT CLAIM (REVERSED): The Court held both that Alonso established a prima facie hostile work environment claim and that the superior court erred in granting Qwest’s summary judgment motion on this issue. Accordingly, the Court reversed the trial court’s dismissal of his hostile work environment claim. Id.

ISSUE #3: Did the superior court err in dismissing Alonso’s retaliation claim?

[3-1] UNLAWFUL RETALIATION: “The WLAD prohibits retaliation against a party asserting a claim based on a perceived violation of his civil rights or participating in an investigation into alleged workplace discrimination.” Id. at 753 (citing RCW 49.60.210).

PRIMA FACIE CASE. “To establish a prima facie retaliation case, a plaintiff must show that[:]

(1) he engaged in statutorily protected activity,

(2) his employer took an adverse employment action against him, and

(3) there is a causal link between the activity and the adverse action.”

Id. at 753-54 (citing Short v. Battle Ground Sch. Dist., 169 Wn.App. 188, 205, 279 P.3d 902 (2012)) (paragraph formatting added).

[3-2] PROTECTED ACTIVITY: “An employee engages in WLAD-protected activity when he opposes employment practices forbidden by antidiscrimination law or other practices that the employee reasonably believed to be discriminatory.” Id. at 754 (citing Short, 169 Wn.App. at 205).

[3-3] COMPLAINTS MUST REFERENCE PLAINTIFF’S PROTECTED STATUS: “A general complaint about an employer’s unfair conduct does not rise to the level of protected activity in a discrimination action under WLAD absent some reference to the plaintiff’s protected status.” Id. (referencing Graves v. Dep’t of Game, 76 Wn.App. 705, 712, 887 P.2d 424 (1994)).

[3-4] PROTECTED ACTIVITY (1ST ELEMENT): The Court initially evaluated whether Alonso met the first element of an unlawful retaliation claim — that he participated in protected activity.

Here, Alonso used a company hotline to make a general complaint about corruption, mistreatment, and vulgar language against both his supervisor (Martinez) and another employee. Id. at 754. However, Alonso “did not express that his complaints were in response to harassment based on any protected status.” Id.

Thus, the Court held that Alonso did not establish the first element, because he did not phone the hotline to report discrimination against him based on a protected class. Id.

[3-5] ALONSO FAILED TO ESTABLISH A PRIMA FACIE RETALIATION CASE (TRIAL COURT AFFIRMED): The Court held that Alonso failed to sufficiently establish a prima facie retaliation case, because he did not demonstrate that he engaged in statutorily protected activity. See id. at 754. Therefore, the Court affirmed the trial court’s dismissal of his unlawful retaliation claim. Id. at 754-55.

NOTABLES & IMPLICATIONS:

EMPLOYEE’S ALLEGED HUMILIATION & SELF-DIAGNOSED MENTAL SICKENESS RAISED INFERENCE THAT CONDITION RESULTED FROM HOSTILE WORK ENVIRONMENT

(1) “Whether offensive comments affect the conditions of employment is a factual question.” Id. at 751 (referencing Davis v. W. One Auto. Grp., 140 Wn.App. 449, 457, 166 P.3d 807 (2007) (“holding that employee’s alleged humiliation and self-diagnosed mental sickness from ‘racially charged’ workplace comments raised inference that condition resulted from hostile work environment”), review denied, 163 Wn.2d 1040 (2008)) (emphasis added).

HOSTILE WORK ENVIRONMENT (IMPUTABLE TO EMPLOYER) — ASSIGNING OVERTIME

(3) A supervisor/manager may have authority to affect an employee’s wages if the supervisor/manager had the ability to determine who could earn overtime. See id. at 752 (referencing Robel v. Roundup Corp., 148 Wn.2d 35, 48 n. 5, 59 P.3d 611 (2002)).

HOSTILE WORK ENVIRONMENT: TWO COMMENTS MAY BE ENOUGH TO SUPPORT REASONABLE INFERENCE THAT PROTECTED CLASS STATUS WAS MOTIVATING FACTOR

(4) Just two comments may be enough to support a reasonable inference that an employee’s protected class status was the motivating factor for harassing conduct. See id. at 749-50 (supervisor openly expressed he hated that plaintiff was a disabled Gulf War combat veteran and compared his own veteran status to plaintiff’s).

INDIRECT DEROGATORY RACIALLY CHARGED LANGUAGE MAY BE ACTIONABLE

(5) “[A] defendant need not levy derogatory racially charged language directly at the plaintiff to subject the plaintiff to a hostile work environment and survive summary judgment.” See Davis v. W. One Auto. Grp., 140 Wn.App. 449, 457, 166 P.3d 807 (2007) (defendant’s derogatory statements about Dr. Martin Luther King Jr. and calling African American plaintiff a ” bitch” could be considered racially motivated and subjected plaintiff to hostile work environment), review denied, 163 Wn.2d 1040 (2008)) (emphasis added).

THE O’NEAL RULE

(6) “In O’Neal v. City of Chicago, 392 F.3d 909, 912 (7th Cir. 2004), the Seventh Circuit held that the loss of a plaintiff’s cellular telephone, pager, vehicle, and parking space did not amount to an adverse employment action when those benefits were associated with the position from which the plaintiff was transferred.” Id. at 746. The Court in this case raised and dismissed the O’Neal Rule due to conflicting evidence.

TITLE VII FOR GUIDANCE

(7) “Because our discrimination laws substantially parallel Title VII of the Civil Rights Act of 1964, 42 U.S.C. § § 2000e to 2000e-17, [courts] …may look to federal law for guidance.” Id. at 755, n. 10 (citing Phanna K. Xieng v. Peoples Nat’l Bank of Wash., 120 Wn.2d 512, 518, 844 P.2d 389 (1993)).

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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.