Opinion
No. 37757-8-II.
April 21, 2009.
Appeal from a judgment of the Superior Court for Thurston County, No. 07-2-02566-6, Richard D. Hicks, J., entered April 25, 2008.
Affirmed by unpublished opinion per Quinn-Brintnall, J., concurred in by Van Deren, C.J., and Penoyar, J.
UNPUBLISHED OPINION
This lawsuit is Steffanie Kim Chau's third attempt to challenge her employment termination by her former employer, the Washington State Employment Security Department (ESD), and her second attempt to challenge the denial of unemployment benefits. The trial court dismissed the lawsuit at issue in this appeal on summary judgment, reasoning that her earlier litigation barred her from pursuing the same claims again. She appeals, arguing that summary judgment was inappropriate. We affirm.
FACTS Employment Termination
In an earlier decision, we recounted the facts of Chau's employment termination as follows:
Chau worked as a financial analyst in ESD's treasurer's office. She
performed accounting duties that included processing cash draws from various grant accounts for payroll use. Her duties included recording those transactions and creating a clear audit trail. When processing a cash draw in the federal system, she recorded the transaction in the State and agency systems so that all ledgers matched.
In April 2001, ESD treasury manager, Lee Rolle, discovered many irregularities in Chau's cash draws that resulted in inaccurate and unreliable financial records for more than $12 million. Because of Chau's inappropriate cash handling, ESD violated the federal Cash Management Improvement Act, 31 U.S.C. sec. 503, and the state auditor issued an audit finding against ESD. It took Rolle more than five months to reverse Chau's transactions.
After an investigation, ESD's deputy commissioner, Paul Trause, determined that Chau "neglected her duty, was incompetent, insubordinate, and had engaged in gross misconduct." 2 Clerk's Papers (CP) at 285. He decided to dismiss Chau based on her employment history and the seriousness of her misconduct.
On April 12, 2002, Trause informed Chau that ESD would terminate her employment on April 29. ESD concluded that Chau "prepared accounting records that did not accurately reflect her cash draw transactions, attempted to conceal incorrect transactions by preparing misleading documents, and failed to comply with process instructions provided by her superiors." CP at 279.
Chau v. Employment Sec. Dep't, noted at 133 Wn. App. 1044, 2006 WL 1829379, at *1, review denied, 160 Wn.2d 1013 (2007). Chau repeatedly sought judicial review regarding her employment termination.
Personnel Appeals Board Hearing
Chau first challenged her employment termination at the Personnel Appeals Board (PAB). The Board upheld her employer's decision, concluding that "`[i]n light of [Chau's] egregious behavior, [ESD] has established that the disciplinary sanction of dismissal was not too severe and was appropriate.'" Chau, 2006 WL 1829379, at *1 (alterations in original). Chau appealed this ruling to the superior court, which affirmed PAB's ruling on the merits, but she did not appeal to this court.
2005 Lawsuit
In 2005, Chau filed a civil lawsuit against ESD, claiming wrongful discharge, employment discrimination, retaliation, fraud, perjury, and breach of contract. ESD moved for summary judgment, arguing, among other things, that the doctrine of collateral estoppel barred the lawsuit. The trial court granted ESD's motion and dismissed the lawsuit with prejudice. She appealed to this court and we affirmed the trial court's decision. Chau, 2006 WL 1829379. We held that (1) the breach of contract claim failed as a matter of law because civil servants may not raise contract claims against the State when the lawsuit arises from an employment relationship; (2) Chau failed to raise material facts to support her claims of employment discrimination or retaliation; and (3) the earlier PAB decision collaterally estopped her from suing for fraud, perjury, and wrongful discharge. Chau, 2006 WL 1829379. Our Supreme Court denied her motion for discretionary review.
Unemployment Benefits Litigation
Also relevant to this appeal, Chau filed for unemployment insurance benefits after ESD fired her. Ruling Affirming Judgment, Chau v. Employment Sec. Dep't, 31572-6-II (Wash.Ct.App. Oct. 28, 2004). After two levels of administrative review, the commissioner of ESD denied her claim, holding that the actions for which she was fired constituted misconduct. Ruling Affirming Judgment, Chau, 31572-6-II. She appealed to the Thurston County Superior Court, which affirmed the commissioner's ruling and she then appealed to this court. We affirmed the superior court's decision on the merits. Chau did not seek Supreme Court review. 2007 Lawsuit
On December 26, 2007, Chau filed the lawsuit directly at issue in this appeal. She named the Attorney General, ESD, and the PAB as defendants. She claimed wrongful termination, conspiracy, fraud, perjury, retaliatory firing, and negligent infliction of emotional distress. In her briefing, Chau additionally challenged the denial of unemployment insurance benefits. She alleged facts in which she challenged her employment termination, stated that ESD admitted into evidence some fraudulent documents when it litigated the PAB hearing, and argued that the PAB decision was erroneous.
The defendants moved for summary judgment in their favor and argued, in part, that the earlier litigation barred this lawsuit. Chau argued that ESD fabricated evidence at the PAB hearing and conspired with the PAB to deny her wrongful termination claim. She further argued that these allegations had never been judicially reviewed, she was not aware of the fraudulent documents or testimony until after the PAB hearing, and review in this lawsuit was therefore appropriate. Specifically, she said she became aware of the fraudulent documents and perjury when she reviewed the record after the PAB hearing, but before she filed the 2005 lawsuit. She cited exhibits from the PAB hearing that purportedly support her claims of conspiracy and evidence fabrication, but did not attach them for the trial court's or our review. She also argued that she did not commit misconduct and, therefore, should be entitled to unemployment benefits. The trial court granted summary judgment to the defendants.
Chau appeals.
ANALYSIS
Summary Judgment Standard of Review
On an appeal from summary judgment, we engage in the same inquiry as the trial court. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 860, 93 P.3d 108 (2004) (citing Kruse v. Hemp, 121 Wn.2d 715, 722, 853 P.2d 1373 (1993)). Our standard of review is de novo. Hisle, 151 Wn.2d at 860. Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c). We construe all facts and reasonable inferences therefrom in the light most favorable to the nonmoving party. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005) (citing Atherton Condo. Apartment-Owners Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d 506, 516, 799 P.2d 250 (1990)).
On summary judgment, the moving party bears the burden of demonstrating that there is no genuine issue of material fact. Atherton, 115 Wn.2d at 516. "If the moving party satisfies its burden, the nonmoving party must present evidence that demonstrates that material facts are in dispute." Atherton, 115 Wn.2d at 516. The nonmoving party may not rely on speculation, argumentative assertions that unresolved factual issues remain, or having its affidavits considered at face value. Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986). If the nonmoving party fails to demonstrate that material facts are in dispute, then summary judgment is proper. Atherton, 115 Wn.2d at 516. Collateral Estoppel
At issue here is whether summary judgment was appropriate for the following claims: (1) wrongful termination, (2) fraud, (3) perjury, (4) retaliatory firing, (5) improper denial of unemployment insurance benefits, (6) conspiracy, and (7) negligent infliction of emotional distress. Summary judgment was mandatory because the doctrine of collateral estoppel bars Chau from relitigating each of these claims.
We review de novo whether collateral estoppel applies. Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299, 305, 96 P.3d 957 (2004). Collateral estoppel bars the relitigation of an issue by a party who has had a full and fair opportunity to present his or her case, even if the subsequent litigation presents a different claim or cause of action. In re Marriage of Mudgett, 41 Wn. App. 337, 342, 704 P.2d 169 (1985). The doctrine's purpose is to achieve finality of disputes, promote judicial economy, and prevent harassment of and inconvenience to litigants. Hanson v. City of Snohomish, 121 Wn.2d 552, 561, 852 P.2d 295 (1993).
The doctrine applies only if four basic requirements are met: (1) the identical issue was decided in the prior action, (2) the first action resulted in a final judgment on the merits, (3) the party against whom preclusion is asserted was a party to or in privity with a party to the prior adjudication, and (4) application of the doctrine does not work an injustice. State v. Mullin-Coston, 152 Wn.2d 107, 114, 95 P.3d 321 (2004) (quoting State v. Bryant, 146 Wn.2d 90, 98-99, 42 P.3d 1278 (2002)); Hanson, 121 Wn.2d at 562.
Collateral estoppel clearly bars Chau's claims of wrongful termination, fraud, and perjury. We earlier decided that the PAB decision collaterally estopped Chau from raising those claims in the 2005 lawsuit. Chau, 2006 WL 1829379. At the trial court in this lawsuit, Chau argued that it would work an injustice to dismiss her fraud and perjury claims because she did not acquire evidence to support those claims until after the PAB hearing. But Chau admitted that she acquired that evidence before she filed the 2005 lawsuit and, therefore, it is just to require that she present that evidence in the 2005 lawsuit or else waive its review. She provides no other argument relevant to these three claims. We hold that it does not work an injustice to adhere to our prior ruling that all three of these claims are barred by collateral estoppel.
The claim of retaliatory firing also fulfils the four elements of collateral estoppel. See Hanson, 121 Wn.2d at 562. First, the identical issue was decided in the 2005 lawsuit and appeal. Second, that action resulted in a final judgment on the merits because the trial court dismissed it on summary judgment and we affirmed the summary judgment on the merits. See In re Estate of Black, 153 Wn.2d 152, 170, 102 P.3d 796 (2004) ("`[a] grant of summary judgment is a final judgment on the merits with the same preclusive effect as a full trial'") (alteration in original) (quoting DeYoung v. Cenex, Ltd., 100 Wn. App. 885, 892, 1 P.3d 587 (2000), review denied, 146 Wn.2d 1016 (2002)). Third, Chau was the plaintiff in the 2005 lawsuit and is the party against whom preclusion is asserted. Finally, the application of the doctrine will not work an injustice, as Chau had a full opportunity to present her case during the 2005 lawsuit and she presents no reason why she should be granted a second change. She is barred from religitating the claim of retaliatory firing.
Chau is also collaterally estopped from claiming that she is entitled to unemployment insurance benefits. The identical issue was decided in her administrative review before the ESD commissioner. This review resulted in a final decision on the merits by the commissioner, which we then affirmed on appeal. Chau was the claimant in that litigation and is the party against whom the doctrine of collateral estoppel is raised. And there is no indication that application of the doctrine of collateral estoppel will result in injustice. This claim is barred.
The final two claims are conspiracy and negligent infliction of emotional distress. As with the claims discussed above, the second, third, and fourth elements of collateral estoppel are clearly met for these claims. See Hanson, 121 Wn.2d at 562. Because this is the first time Chau has raised these exact causes of action, however, we must closely examine whether the prior litigation raised identical issues. See Hanson, 121 Wn.2d at 562.
To establish civil conspiracy, Chau must show that the two or more people entered into an agreement to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means. Corbit v. J. I. Case Co., 70 Wn.2d 522, 528, 424 P.2d 290 (1967). Reading the pleadings broadly, it appears that Chau's theory of conspiracy is that ESD falsified evidence at the PAB hearing and the PAB overlooked (or failed to discover) the fact that the evidence was falsified and it ignored evidence favoring Chau's case theory. Earlier litigation determined these issues on the merits. Chau appealed the PAB decision to the Thurston County Superior Court, which held that PAB did not act arbitrarily or capriciously and substantial evidence supported its ruling. Chau, 2006 WL 1829379, at *1. And we conclusively determined the issues of evidence falsification (fraud and perjury) in the direct appeal of her 2005 lawsuit. Chau, 2006 WL 1829379. In short, earlier litigation resolved the two essential issues to Chau's conspiracy claim — evidence falsification and the PAB's weighing of evidence — and she did not prevail. Collateral estoppel precludes Chau from relitigating these issues and, under the previous rulings, her conspiracy claim fails as a matter of law. The trial court did not err when it entered summary judgment to the defendants on this claim.
To establish negligent infliction of emotional distress, Chau must prove negligence — that is, duty, breach of the standard of care, proximate cause, and damages — as well as objective symtomatology. Strong v. Terrell, 147 Wn. App. 376, 387, 195 P.3d 977 (2008) (citing Kloepfel v. Bokor, 149 Wn.2d 192, 198, 66 P.3d 630 (2003)). It is difficult to understand Chau's case theory, but apparently she believes that ESD committed negligent infliction of emotional distress when it caused her depression and other emotional upset when it disciplined her on the job when she did nothing wrong, terminated her employment, and argued during her PAB hearing and unemployment insurance dispute that it fired her for misconduct. Prior litigation resolved these issues. The PAB held that "`[i]n light of [Chau's] egregious behavior, [ESD] has established that the disciplinary sanction of dismissal was not too severe and was appropriate.'" Chau, 2006 WL 1829379, at *1 (alterations in original). The superior court affirmed this ruling on the merits. Chau, 2006 WL 1829379, at *1. Further, we affirmed the unemployment benefits ruling that Chau committed misconduct. Ruling Affirming Judgment, Chau, 31572-6-II. Accordingly, Chau is estopped from arguing now that the ESD negligently inflicted emotional distress on the ground that it disciplined her and terminated her employment based on a false accusation of misconduct.
Each of Chau's claims is barred by collateral estoppel and, thus, the defendants are entitled to summary judgment as a matter of law. CR 56(c). The trial court did not err in so ruling. Sanctions
Although most, if not all, of Chau's claims also apparently fail on other legal theories, the doctrine of res judicata or failure to allege material facts on claims' essential elements, we do not address those grounds because our collateral estoppel ruling is dispositive.
Neither party requests attorney fees on appeal and therefore we cannot award attorney fees to the respondent. See RAP 18.1(b). But RAP 18.9(a) allows us to impose sanctions for frivolous appeals. An appeal is frivolous if "the court is convinced that the appeal presents no debatable issues upon which reasonable minds might differ, and that it is so devoid of merit that there is no possibility of reversal." Ramirez v. Dimond, 70 Wn. App. 729, 734, 855 P.2d 338 (1993). Such is the case here.
In this case, Chau merely reiterates factual allegations that were litigated repeatedly below and she raises no debatable issues upon which reasonable minds might differ. Chau has had many opportunities for judicial review of her claims. Further, the trial court and respondent clearly and repeatedly explained that she may not relitigate these issues, but she has insisted on pursuing this appeal. This is unfair and costly to respondents and wastes the court's resources and scarce taxpayer funds. Accordingly, we order Chau to pay $1,500 in sanctions to our Court Clerk to defray the portion of the court's costs expended on this appeal.
We affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
VAN DEREN, C.J. and PENOYAR, J., concur.