148 Wash. 2d 35 | Wash. | 2002
This court is asked to decide whether the Court of Appeals correctly reversed a bench trial judgment for petitioner Linda Robel on her claims for disability harassment, retaliation for filing a workers’ compensation claim, negligent and intentional infliction of emotional distress, and defamation. We hold that Washington’s Law Against Discrimination, chapter 49.60 RCW (the antidis-crimination statute), supports an employee’s disability based hostile work environment claim, and conclude that the trial court’s unchallenged findings of fact satisfy the elements of such a claim. We likewise conclude that the trial court’s unchallenged findings support Robel’s claim that Fred Meyer retaliated against her for filing a workers’ compensation claim. Regarding Robel’s claim for inten
FACTS
The suit arises out of Linda Robel’s employment from May 31, 1995, to September 12, 1996, in the service deli at the Francis Avenue Fred Meyer store in Spokane. On July 14, 1996, Robel sustained a workplace injury and timely filed a workers’ compensation claim. 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.” Clerk’s Papers (CP) at 1333 (Finding of Fact 22). 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!’ ” Id. (Finding of Fact 23); see also Joint Ex. 201, at 30. They “audibly called [Robel] a ‘bitch’ and ‘cunt.’ ” Id. They also “told customers she had lied about her back and was being punished by Fred Meyer by ‘demoing’ pizzas.” Id. 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.” Joint Ex. 201, at 30-33. Robel also noted that on August 13, Smith and other deli workers would “stare at [her], whisper out loud, & laugh, pretend to hurt their backs & laugh.” Id. at 34.
Robel again contacted Banka, who in turn contacted Wissink on September 20, 1996.
On February 13, 1998, Robel filed suit against Fred Meyer stating claims for disability discrimination (RCW 49.60.180(3)), retaliation for filing a workers’ compensation claim (RCW 51.48.025(1)), negligent and intentional infliction of emotional distress, and defamation. The trial court denied Fred Meyer’s motion for summary judgment. At the close of a three-day nonjury trial in September 1999, the
Fred Meyer appealed. The Court of Appeals reversed the trial court’s judgment on all claims. Robel v. Roundup Corp., 103 Wn. App. 75, 10 P.3d 1104 (2000). We granted Robel’s petition for review.
ISSUES
(1) Does the antidiscrimination statute support an employee’s disability-based hostile work environment claim? If so, 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) 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) 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) Were the allegedly defamatory communications cited in the trial court’s findings of fact capable of defamatory meaning?
ANALYSIS
Standard of Review. Fred Meyer assigned error to all of the trial court’s conclusions of law but challenged none of its findings of fact. Br. of Appellant at 1-2. Unchallenged findings are verities on appeal. State v. Stenson, 132 Wn.2d 668, 697, 940 P.2d 1239 (1997); State v. Hill, 123 Wn.2d 641, 644, 647, 870 P.2d 313 (1994). This court reviews de novo Fred Meyer’s challenges to the trial court’s conclusions of law. State v. Johnson, 128 Wn.2d 431, 443,
Disability Discrimination. Under the antidiscrimination statute, “Kit is an unfair practice for any employer . . . [t]o 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.” RCW 49.60.180(3) (emphasis added). This court has recognized that the antidiscrimination statute prohibits sexual harassment in employment, with such claims being “generally categorized as ‘quid pro quo harassment’ claims or ‘hostile work environment’ claims.” DeWater v. State, 130 Wn.2d 128, 134-35, 921 P.2d 1059 (1996) (quoting Payne v. Children’s Home Soc’y of Wash., Inc., 77 Wn. App. 507, 511 n.2, 892 P.2d 1102, review denied, 127 Wn.2d 1012 (1995)). Whether the antidiscrimination statute supports a disability-based hostile work environment claim is an issue of first impression in this state. In reviewing Robel’s claim below, Division Three of the Court of Appeals assumed arguendo that the antidiscrimination statute “encompassefd] a hostile environment claim based on a disability” but concluded that the findings of fact did not support such a claim. Robel, 103 Wn. App. at 86-87. We hold that the antidiscrimination statute supports a disability-based hostile work environment claim, and conclude that the trial court’s unchallenged findings of fact satisfied each element of the claim.
To determine whether the antidiscrimination statute supports a disability claim based on a hostile work environment, we may look to federal cases construing analogous federal statutes. Fahn v. Cowlitz County, 93 Wn.2d 368, 376, 610 P.2d 857, 621 P.2d 1293 (1980). A number of federal
The antidiscrimination statute, which applies with equal force to sex-based and disability-based employment discrimination, is analogous to Title VII and the ADA. Setting forth the elements that a plaintiff must prove “[t]o establish a work environment sexual harassment case” under the antidiscrimination statute, this court noted that, although federal cases interpreting Title VII were “not binding on this court,” they were “instructive” and “support [ive].” Glasgow v. Georgia-Pac. Corp., 103 Wn.2d 401, 406 & n.2, 693 P.2d 708 (1985). In Glasgow, we determined that a
The question thus before us is whether the trial court’s findings of fact establish all five elements of Robel’s disability based hostile work environment claim. The only applicable findings are those pertaining to employee conduct occurring after Robel’s workplace injury on July 14, 1996. The first element, that Robel’s injury was a disability under RCW 49.60.180(3), was not contested. To satisfy the second element, proof that the conduct was “unwelcome,” the plaintiff must show that he or she “did not solicit or incite it” and viewed it as “undesirable or offensive.” Glasgow, 103 Wn.2d at 406; cf. 6A WPI 330.23, at 240 (requiring jury to find that plaintiff proved “[t]hat this language or conduct was unwelcome in the sense that the plaintiff regarded the conduct as undesirable and offensive, and did not solicit or incite it”). This element is fully met in the findings. No findings suggested that Robel solicited or incited the remarks made about her workplace injury. That she viewed it
The third element, that the harassment occurred “because of” the workplace injury, “requires that the [disability] of the plaintiff-employee be the motivating factor for the unlawful discrimination.” Glasgow, 103 Wn.2d at 406. This element thus requires a nexus between the specific harassing conduct and the particular injury or disability. Satisfying the element that the conduct “occurred because of [the plaintiff’s disability],” the trial court found that “[t]he verbal and non-verbal harassment of Robel in the work setting subsequent to July 14, 1996, was directly or proximately related to her disability and/or Fred Meyer’s perception of Robel as disabled.” CP at 1334 (finding of fact 31) (emphasis added). For us to conclude that this unchallenged finding failed to satisfy the third factor, we would have to make the very fine-grained distinction that the finding’s description of the harassment as “directly or proximately related to” the disability did not mean that the harassment was “because of” the disability. We decline to split that hair. Because this clear factual finding was not challenged on appeal, we are not at liberty to substitute our judgment for that of the trial court.
Of the fourth element, whether the conduct affected the terms and conditions of employment, the Glasgow court explained that “[t]he harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” 103 Wn.2d at 406. As indicated in the pattern jury instruction, based on RCW 49.60.180(3) and Glasgow, a satisfactory finding on this element should indicate “[t]hat 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.” 6A WPI 330.23, at 240. The trial court found that “Fred Meyer created a hostile and abusive work
The fifth element, whether the postinjury conduct must be imputed to the employer, was explained in Glasgow as follows:
Where an owner, manager, partner or corporate officer personally participates in the harassment, this element is met by such proof. To hold an employer responsible for the discriminatory work environment created by a plaintiff’s supervisor(s) or co-worker(s), the employee must show that the employer (a) authorized, knew, or should have known of the harassment and (b) failed to take reasonably prompt and adequate corrective action.
103 Wn.2d at 407. Applying this passage, 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 and adequate corrective action.” Id. (emphasis added); see also 6A WPI 330.23, at 240-41.
We therefore conclude that RCW 49.60.180(3) supports a disability-based hostile work environment claim and 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. We reverse the Court of Appeals and reinstate the trial court’s judgment in Robel’s favor on this claim.
Retaliation for Filing Workers’ Compensation Claim. Washington’s Industrial Insurance Act provides that “[n]o employer may discharge or in any manner discriminate
34. Fred Meyer has a policy that retaliation by supervisors against employees is precluded when complaints are raised by employees. Fred Meyer failed and/or refused to enforce this policy in response to the verbal and non-verbal harassment of Robel in the work setting.
35. Fred Meyer’s actions and/or inactions in regard to the verbal and non-verbal harassment of Robel in the work setting subsequent to July 14,1996, was an unlawful act of retaliation in response to her filing and/or pursuing an industrial insurance claim under RCW 51, et seq., a statutorily protected activity.
36. The verbal and non-verbal harassment of Robel in the work setting subsequent to July 14, 1996, constituted an unlawful and adverse employment action against her.
37. There exists a direct causal connection between Robel’s protected activity and the adverse employment action.
CP at 1334-35 (findings of fact 34-37) (emphasis added).
Without commenting on these unchallenged findings, which respond directly to the antidiscrimination statute, the Court of Appeals determined that Robel would have to provide “ ‘either (a) proof of a policy or practice of the employer, known to the employee, by which the employer retaliates against employees who exercise their rights under the workers’ compensation law; or (b) [proof! that the employee sustains an on-the-job injury, and is directly
The reliance on Johnson is insupportable. At issue there was the employer’s conduct in preventing an employee from filing a claim, a circumstance not presented here. In fact, no prior cases have applied the antidiscrimination statute to the present situation—that of an employer who has allegedly discriminated in some way, short of discharge, against an employee because she filed a workers’ compensation claim. 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 that she had filed a claim, that Fred Meyer thereafter discriminated against her in some way,
Intentional Infliction of Emotional Distress. Robel’s complaint stated causes of action for both negligent and intentional emotional distress, basing those claims on the same averments. In the trial court’s oral review of its findings, it stated that, “[w]ith regard to the negligence and intentional infliction claim, [it] would recognize [that the] conduct rises to the level of being intentional, particularly as it relates to management of [sic] employee Smith and conduct that took place in the direct presence of management employee Potts.” Report of Proceedings (RP) at 553. The trial court
To prevail on a claim for outrage, 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.”
While the standard for an outrage claim is admittedly very high (by which we mean that the conduct supporting the claim must be appallingly low), we disagree with the Court of Appeals on the threshold legal question and conclude that reasonable persons could deem the employer’s conduct, as set forth in the unchallenged findings, sufficiently outrageous to trigger liability. In some contexts, perhaps the language directed at Robel could be dismissed as merely “rough” and “insulting,” as the Court of Appeals characterized it, Robel, 103 Wn. App. at 90, but we believe that reasonable minds (such as the one exercised by
Fred Meyer argued to the Court of Appeals that, “[i]n Washington, an employer is generally not, as a matter of law, liable for an intentional tort committed by an employee.” Opening Br. of Appellant at 33 (citing Kuehn v. White, 24 Wn. App. 274, 278, 600 P.2d 679 (1979)). This point of view gravely distorts the law of vicarious liability in this state. Our case law makes clear that, once an employ
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.” Restatement (Second) of Agency § 228(2) (1958); see also Restatement, supra, § 228(1). This is not to say that an employer will be vicariously liable only where it has specifically authorized an employee to act in an intentionally harmful or negligent manner; likewise, an employer may not insulate itself from vicarious liability merely by adopting a general policy proscribing bad behavior that would otherwise be actionable. The proper inquiry is whether the employee was fulfilling his or her job functions at the time he or she engaged in the injurious conduct. For example, in Kuehn,
Here, Fred Meyer was vicariously liable for the offending conduct of its deli employees. First, unlike the employee in Kuehn, who left his post and effectively ceased to be an employee, the 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. Nor was the employees’ conduct in this case directed toward deriving personal sexual gratification, an exceptional circumstance that could have taken the conduct outside the scope of their employment.
In sum, we conclude that Fred Meyer is vicariously liable, that reasonable minds could find the complained-of conduct
Defamation. A plaintiff bringing a defamation action must prove “four essential elements: falsity, an unprivileged communication, fault, and damages.” Mark v. Seattle Times, 96 Wn.2d 473, 486, 635 P.2d 1081 (1981), cert. denied, 457 U.S. 1124 (1982). 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.” Camer v. Seattle Post-Intelligencer, 45 Wn.App. 29, 39, 723 P.2d 1195 (1986) (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 339, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974) (observing that “[u]nder the First Amendment there is no such thing as a false idea”)). 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.
The trial court found that “[t]he defamatory communications by Fred Meyer’s employees included that Robel was a ‘bitch,’ a ‘cunt,’ a ‘fucking bitch,’ a ‘fucking cunt,’ a ‘snitch,’ a ‘squealer,’ and/or a ‘liar,’ and the comment that ‘only idiots demo.’ ” CP at 1337 (finding of fact 63). The Court of Appeals reasonably rejected as nonactionable opinions the vulgar names Robel’s co-workers called her. Robel, 103 Wn. App. at 92 (noting that “some statements . . . cannot reasonably be understood to be meant literally and seriously and are obviously mere vituperation and abuse” (quoting Restatement (Second) of Torts § 566 cmt. e (1977))). The Court of Appeals concluded that the remaining words—“snitch,” “squealer,” “liar,” and “idiot”—were arguably defamatory statements of fact but that Robel’s
We conclude, however, that none of the allegedly defamatory words could carry defamatory meaning in this case. The vulgarisms, along with the word “idiot,” were plainly abusive words not intended to be taken literally as statements of fact. To determine whether the words “snitch,” “squealer,” and “liar” should likewise be viewed as nonactionable opinions, we consider the “totality of the circumstances” surrounding those statements: “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.” Dunlap v. Wayne, 105 Wn.2d 529, 539, 716 P.2d 842 (1986) (regarding as a nonactionable opinion, not a statement of fact, opposing counsel’s statement to plaintiff’s employer that plaintiff had been soliciting a kickback).
Applying the Dunlap court’s three-factor test and its reasoning, we hold as a matter of law that, as with the vulgarisms and the word “idiot,” the words “snitch,” “squealer,” and “liar” likewise constituted nonactionable opinions. Regarding the first factor, medium and context, at issue here were oral statements made in circumstances and places that invited exaggeration and personal opinion. Those engaging in the name-calling were Robel’s co-workers and superiors—individuals who were potentially interested in discrediting her complaints to management about questionable food handling practices in the deli or who were personally interested in ostracizing Robel in the workplace.
The second Dunlap factor, the audience, likewise suggests that the remarks are to be regarded as nonactionable opinions. According to the trial court’s finding, “[t]he defamatory communications were published to Fred Meyer’s customers and/or Robel’s co-workers and/or Robel’s
Analysis of the third factor, whether the words implied undisclosed defamatory facts, yields the same result—an unsurprising result since the context and audience often ensure that any implicit facts will be perceived as “merely a characterization of those facts.” Ollman v. Evans, 750 F.2d 970, 985 (D.C. Cir. 1984). To the extent the words were published to deli workers, that audience would have known the facts ostensibly underlying the epithets “snitch,” “squealer,” and “liar”—that Robel had been recording in her journal what she believed were questionable practices in the deli and that she had voiced her complaints to management. Likewise, the remark made to customers—that Robel was “ ‘demoing’ pizzas” because she had “lied about her back”—implies no undisclosed defamatory facts; rather, the remark overtly explains why the resentful, unprofessional co-worker regarded Robel as a “liar.” CP at 1333 (finding of fact 23).
Because we conclude that all of the utterances identified in the finding were nonactionable opinions, we affirm the reversal of the trial court’s judgment on Robel’s defamation claim.
Robel’s Request for Attorney Fees on Appeal. In a supplemental brief filed with this court, Robel requested
CONCLUSION
On Robel’s claims of disability discrimination, retaliation for filing a workers’ compensation claim, and intentional infliction of emotional distress, we reverse the Court of Appeals and reinstate the trial court’s judgment in Robel’s favor. We affirm the reversal of the trial court’s judgment for Robel on her defamation claim and deny Robel’s request for attorney fees on appeal.
The Court of Appeals decision is affirmed in part and reversed in part.
Alexander, C.J., and Johnson, Ireland, and Chambers, JJ., concur.
Finding of Fact 28 (CP at 1333) does not indicate the date on which Robel contacted Banka, nor does Robel’s journal mention the contact.
The Court of Appeals cited seven cases wherein federal district courts held that the ADA encompassed hostile work environment claims. Robel, 103 Wn. App. at 86. Six of those cases are among the twenty-one collected in Brian L. Porto, Annotation, Actions Under Americans with Disabilities Act (42 U.S.C.A. §§ 12101 et seq.), to Remedy Alleged Harassment or Hostile Work Environment, 162 A.L.R. Fed. 603, 612-24 (2000). Of the twenty-one cases Porto summarizes, he categorizes only three as denying recognition of hostile work environment disability claims. See also Fox v. Gen. Motors Corp., 247 F.3d 169 (4th Cir. 2001); Flowers v. S. Reg’l Physician Servs., Inc., 247 F.3d 229 (5th Cir. 2001) (claims for hostile work environment cognizable under the ADA).
See supra n.2.
Apparently misconstruing the relevant findings of fact as conclusions of law, the Court of Appeals embarked on its own analysis of this fourth factor and concluded that the findings of fact did not establish that the disability-based harassment was sufficiently pervasive, severe, and persistent to affect the terms and conditions of Robel’s employment. Robel, 103 Wn. App. at 86-87.
In re Marriage of Booth, 114 Wn.2d 772, 777, 791 P.2d 519 (1990) (in absence of written finding, appellate court may look to oral opinion). Managers are those who have been given by the employer the authority and power to affect the hours, wages, and working conditions of the employer’s workers. The trial court referred to Smith as “a management representative of Fred Meyer” and likewise referred to deli manager Evelyn Potts as “management employee Potts.” Report of Proceedings (RP) at 550, 551, 553. Smith, as “assistant deli manager,” made the work assignments in the deli and joined Potts in interviewing Robel for transition into a 40-hour position. CP at 1330 (finding of fact 6); RP at 179; Joint Ex. 201, at 20. Fred Meyer failed to assign error to the trial court’s findings that management-level employees participated in the harassment.
The unchallenged findings of fact refer to “[t]he verbal and non-verbal harassment of Robel in the work setting subsequent to July 14,1996,” as well as “Fred Meyer’s actions and/or inactions in regard to [such] harassment.” CP at 1334-35 (Findings of Fact 35-36). Although we are not called upon to weigh the sufficiency of the evidence supporting these unchallenged findings, we do note that the record shows incidents spanning the period August 1, 1996, through September 13, 1996. See supra at pages 40-41.
Reid. v. Pierce County, 136 Wn.2d 195, 202, 961 P.2d 333 (1998) (citing Dicomes v. State, 113 Wn.2d 612, 630; Restatement (Second) of Torts § 46 (1965)). Robel’s complaint alleges intentional infliction of emotional distress; outrage encompasses causes of action based on reckless and intentional conduct.
In Niece, this court took pains to say that there may be other bases of employer liability for the criminal conduct of employees quite apart from vicarious liability:
Even where an employee is acting outside the scope of employment, the relationship between employer and employee gives rise to a limited duty, owed by an employer to foreseeable victims, to prevent the tasks, premises, or instrumentalities entrusted to an employee from endangering others. This duty gives rise to causes of action for negligent hiring, retention and supervision. Liability under these theories is analytically distinct and separate from vicarious liability. These causes of action are based on the theory that “such negligence on the part of the employer is a wrong to [the injured party], entirely independent of the liability of the employer under the doctrine of respondeat superior.” Scott v. Blanchet High Sch., 50 Wn.App. 37, 43, 747 P.2d 1124 (1987) (quoting 53 Am. Jur. 2d Master and Servant § 422 (1970)), review denied, 110 Wn.2d 1016 (1988).
Niece, 131 Wn.2d at 48 (alteration in original).
Indeed, prior to Snyder, Washington case law regarding intentional torts and ■vicarious liability was mostly confined to sexual misconduct; naturally, the courts have held that the sexual acts of employees are not within the scope of employment. See C.J.C. v. Corp. of Catholic Bishop of Yakima, 138 Wn.2d 699, 985 P.2d 262 (1999) (holding that diocese could not be held vicariously liable for sexual abuse by priests); Niece, 131 Wn.2d 39 (holding that group home was not vicariously liable for the rape of a disabled resident by an employee); Blenheim v. Dawson & Hall, Ltd., 35 Wn. App. 435, 667 P.2d 125 (1983) (holding that employer could not be held vicariously liable where employees acted for their own purposes by assaulting and raping a dancer at a company Christmas party).
CP at 1338 (finding of fact 64). The use of “and/or” in this finding, taken literally, would mean that the audience could have heen any one of the three or all three—customers, co-workers, managers. Because a previous finding provides that unnamed deli workers “told customers [Robel] had lied about her back and was being punished by Fred Meyer by ‘demoing’ pizzas,” we can conclude that the audience included unidentified “customers.” CP at 1333 (finding of fact 23).