Summary
holding that three references to employee by the name of television character "Big Gay Al" within one week was insufficient to alter terms and conditions of employment
Summary of this case from Matthiesen v. AutoZoners, LLCOpinion
No. 30269–5–III.
2012-10-23
Albert DAVIS and Leah Davis, husband and wife, Appellants, v. FRED'S APPLIANCE, INC., a corporation, Respondent.
Gregory George Staeheli, Law Office of Gregory Staeheli, Spokane, WA, for Appellants. William M. Symmes, Witherspoon Kelley PS, Spokane, WA, for Respondent.
Gregory George Staeheli, Law Office of Gregory Staeheli, Spokane, WA, for Appellants. William M. Symmes, Witherspoon Kelley PS, Spokane, WA, for Respondent.
SWEENEY, J.
¶ 1 This appeal follows the summary dismissal of a suit for employment discrimination. The suit is based on claims of retaliatory discharge, discrimination, and defamation. A co-worker or store manager (the parties dispute his authority with the defendant employer) referred to a heterosexual employee as “Big Gay Al.” That name apparently comes from a popular television program. The employee took umbrage at the references. The employer ordered the supervisor to apologize. The apology did not go well and the employee was ultimately fired after an outburst of anger. We conclude that the perception of homosexuality is not protected by the law against discrimination. We conclude that there is no showing of retaliation. And we conclude that the comments are not defamatory per se and, accordingly, the employee had to show actual damage and failed to do so. We therefore affirm the summary dismissal of the suit.
FACTS
¶ 2 Albert Davis worked as a delivery driver for Fred's Appliance, Inc., in Spokane, Washington, between June 2009 and May 25, 2010. His job was to pick up appliances from a warehouse and deliver them to Fred's Appliance stores and customers. Mr. Davis is heterosexual and married.
¶ 3 Steve Ellis was the sales manager or store manager at the Monroe Street store. He supervised other sales people and he was also a salesman. Mr. Ellis could ask delivery drivers to wrap appliances in plastic and help load appliances into customer cars, but Mr. Ellis had no authority to punish employees who did not do what he asked. He had no authority to hire or fire other employees. He did not help create company policies or business and marketing strategies. He had no authority to execute Fred's Appliance's contracts.
¶ 4 Mr. Davis delivered some appliances to the Spokane Valley store on May 14, 2010. Mr. Ellis was there. As Mr. Davis came into the room, Mr. Ellis said, “Hey, there is Big Gay Al.” Clerk's Papers (CP) at 55. Some onlookers laughed. Mr. Davis said, “Excuse me?” and Mr. Ellis replied, “Hey, Big Gay Al.” CP at 55. The store manager, Rick Hurd, “just stood there and shook his head.” CP at 55. Salesman Brent Steinhauer was present and he was not laughing. Nearby customers looked uncomfortable. Mr. Davis did not say anything to Mr. Ellis. He made his delivery and left the store. He was “humiliated and embarrassed.” CP at 57. He “just wanted to get out of the situation.” CP at 57.
¶ 5 Mr. Davis saw Mr. Ellis at the Spokane Valley store again on May 15. Mr. Ellis again called Mr. Davis “Big Gay Al.” CP at 58. Mr. Davis told Mr. Ellis to stop. Mr. Ellis explained, “Well, it's from South Park.” CP at 58. Mr. Davis replied, “I don't like that show. I don't think it's funny,” and said “Don't call me Big Gay Al anymore.” CP at 58.
¶ 6 On Friday, May 20, 2010, Mr. Ellis greeted Mr. Davis with, “Hey, Big Gay Al.” CP at 60. Mr. Davis replied, “Hey, I thought I had already asked you to stop?” CP at 60. According to Dallas Martin, Mr. Davis's delivery partner, Mr. Davis yelled and swore at Mr. Ellis. Mr. Martin told Mr. Davis to calm down. They left and Mr. Davis remained upset. Mr. Davis said that Mr. Martin lied about him yelling and swearing.
¶ 7 Mr. Ellis called Michael Fisher after the last incident. Mr. Fisher was the operations manager for Fred's Appliance. Mr. Ellis told Mr. Fisher that Mr. Davis loudly used swear words in front of customers. Mr. Fisher then called Ed Miller. Mr. Miller is Mr. Davis's direct supervisor. Mr. Fisher told Mr. Miller to suspend Mr. Davis if the allegations were true. Mr. Miller met with Mr. Davis and Mr. Davis explained the history of the “Big Gay Al” comments. Mr. Miller called Mr. Fisher and relayed what Mr. Davis told him. Based on that conversation, Mr. Fisher did not think it was appropriate to suspend Mr. Davis until more was known. Mr. Miller did not suspend Mr. Davis. Mr. Davis may have told Mr. Miller at this time that he wanted to write a more formal complaint about Mr. Ellis.
¶ 8 Mr. Fisher told Troy Varness about the problem on Monday, May 24, 2010. Mr. Varness is Fred's Appliance's general manager. Mr. Varness spoke to Mr. Davis later that day. Mr. Davis explained the problem and did not deny that he yelled and swore at Mr. Ellis on May 20. Mr. Varness told Mr. Davis that Mr. Ellis would apologize to him. He also told Mr. Davis that he had the right to make a more formal complaint. According to Mr. Davis, Mr. Varness said, “Al, I would really like to keep you around here. We like you.” CP at 237. Mr. Davis took that as a veiled threat that he should not file a written complaint. Mr. Davis also recalled that he said that he “would hold off on [a] written complaint and give [Mr. Ellis] the opportunity to apologize.” CP at 155.
¶ 9 Mr. Varness and Mr. Fisher both met with Mr. Ellis the next day because Mr. Ellis was not at work on May 24. Mr. Varness told Mr. Ellis that the name calling was inappropriate and unprofessional. He told Mr. Ellis that he must apologize to Mr. Davis. When Mr. Davis arrived later in the morning, Mr. Fisher took him and Mr. Ellis outside for the apology. The facts surrounding the apology are disputed.
¶ 10 According to Mr. Fisher, Mr. Ellis offered an apology and Mr. Davis became agitated, paced back and forth, and cracked his knuckles. Mr. Fisher said that Mr. Davis yelled at Mr. Ellis: “you're a f* * * * * * punk; you give me no respect.” CP at 23. Mr. Davis began walking to his truck while yelling that he did “not need to put up with this shit” or “disrespect” and that he called Mr. Fisher a “f* * * * * * pr* * *.” CP at 24.
¶ 11 Dan Atkinson, a salesman for another company, saw the exchange. He was sitting in his car with the window down while waiting to meet with Fred's Appliance management. He heard Mr. Davis shout and swear at Mr. Ellis and Mr. Fisher. He said that he saw Mr. Ellis and Mr. Fisher try to calm Mr. Davis, but the situation escalated to a point where Mr. Atkinson got out of his car and asked if they needed help. He ran inside to get Mr. Varness.
¶ 12 Mr. Varness ran outside at Mr. Atkinson's prompting. He heard Mr. Davis yell, “that f* * * * * * punk—he did not mean it,” and “He is not sincere.” CP at 18. Mr. Varness told Mr. Davis to calm down, but Mr. Davis yelled, “I know my rights. I am going to sue you.” CP at 18. Mr. Davis, while yelling, walked to and got inside his delivery truck. Mr. Varness told him that he could not drive “in such an emotional state” and to get out of the truck. Mr. Varness recalled that Mr. Davis said, “I have never walked off a job before, but I am walking off this one” and headed down the street. CP at 18.
¶ 13 Mr. Davis's story is different. According to Mr. Davis, Mr. Varness was at the entire meeting. Mr. Ellis offered an insincere apology and Mr. Davis told him, “I didn't appreciate it, that I felt his apology wasn't sincere, and that I had a lot of stuff going on at this time.” CP at 75. After a brief exchange, Mr. Davis said that he was going to file a written complaint and walked away. He admitted that he threatened to sue. He denied cracking his knuckles, acting agitated or angry, calling Mr. Ellis a “f* * * * * * punk” or saying that Mr. Ellis “didn't mean it.” CP at 75.
¶ 14 At that point, according to Mr. Davis, he walked to his delivery truck and Mr. Varness and Mr. Fisher followed. Mr. Davis told Mr. Varness that he did not need to put up with being called “Big Gay Al.” He admitted that he may have said, “shit.” CP at 336. He denied that he yelled other obscenities. He also denied the “walking off the job” comment. CP at 254. He said that Mr. Varness or Mr. Fisher told him to go home.
¶ 15 Mr. Varness and Mr. Fisher later agreed that Mr. Davis's behavior could not be tolerated and that he should be terminated. The final decision was Mr. Fisher's. Later that day, Mr. Fisher fired Mr. Davis. He told Mr. Davis that Mr. Davis's behavior earlier in the day was the reason.
¶ 16 Mr. Davis sued. Fred's Appliance moved for summary judgment. Mr. Davis responded with his own affidavit and a letter from the State of Washington Employment Security Department. Fred's Appliance moved to strike various portions of the affidavit and the entire Employment Security Department letter. The court granted the motions to strike and granted the motion for summary judgment.
DISCUSSION
Order Striking Portions of Mr. Davis's Affidavit
¶ 17 We review the admissibility of evidence in summary judgment proceedings de novo. Folsom v. Burger King, 135 Wash.2d 658, 663, 958 P.2d 301 (1998).
¶ 18 The court cannot consider inadmissible evidence when ruling on a motion for summary judgment. Charbonneau v. Wilbur Ellis Co., 9 Wash.App. 474, 512 P.2d 1126 (1973). Affidavits “shall be made on personal knowledge, shall set forth such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein.” CR 56(e). And an affidavit cannot be used to create an issue of material fact by contradicting prior deposition testimony. McCormick v. Lake Wash. Sch. Dist., 99 Wash.App. 107, 111, 992 P.2d 511 (1999). The court here struck a letter from the Employment Security Department and parts of Mr. Davis's affidavit because they were inadmissible evidence or contradicted Mr. Davis's deposition testimony.
¶ 19 Mr. Davis seems to contend that the court struck parts of his affidavit, not because they were inadmissible, but because the court wanted to avoid genuine issues of material fact. Except for two parts of his affidavit, Mr. Davis does not explain why the stricken evidence should have been admitted. See Br. of Appellant at 28, 30. Of the two parts that Mr. Davis does address with specific arguments, neither is preserved for appeal because Mr. Davis did not object to the court's decision to strike. RAP 2.5(a).
¶ 20 Mr. Davis also argues that the court improperly struck a letter from the Employment Security Department. The letter informed Mr. Davis that he was entitled to unemployment benefits. Mr. Davis contends that Korslund v. DynCorp Tri–Cities Serv., Inc.,
holds that the department's findings and conclusions are admissible. Br. of Appellant at 14, 18–20, 28. But Korslund 's only mention of the department's findings and conclusions is in its recitation of the facts. Korslund, 156 Wash.2d at 175–76, 125 P.3d 119. What little Korslund says about the findings and conclusions of the department is dicta.
.156 Wash.2d 168, 125 P.3d 119 (2005).
¶ 21 The letter was inadmissible for two reasons: first, because RCW 50.32.097 says the findings, determinations, conclusions, declarations, and final orders of Employment Security Department agents are not admissible; and second, the letter contains two levels of hearsay. “ ‘Hearsay’ ” is an out-of-court statement made “to prove the truth of the matter asserted.” ER 801(c). Hearsay is inadmissible unless it falls within certain exceptions. ER 802, 803. Hearsay in public records or reports is admissible if the record or report is certified. ER 803; RCW 5.44.040. The letter here includes hearsay because the declarant is an unknown Employment Security Department employee and that employee repeats the declaration of other witnesses. The letter is also not a certified copy. SeeRCW 5.44.040.
¶ 22 Alternatively, Mr. Davis suggests that the letter should have been admitted because it had some impeachment value. Br. of Appellant at 18–20. Evidence used for impeachment will not support the elements of a cause of action. Turngren v. King County, 104 Wash.2d 293, 306, 705 P.2d 258 (1985). Moreover, the letter merely repeats the positions that Mr. Davis and Fred's Appliance have maintained throughout this suit. And, except for Mr. Davis, the letter fails to identify who provided the information. It would then have no impeachment value in any event.
¶ 23 The court properly excluded the letter.
Hostile Work Environment
¶ 24 We review summary judgments de novo and conduct the same inquiry as the trial court. Rice v. Offshore Sys., Inc., 167 Wash.App. 77, 88, 272 P.3d 865,review denied,174 Wash.2d 1016, 281 P.3d 687 (2012). We then consider all facts and all reasonable inferences in the light most favorable to the nonmoving party. Id. Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Folsom, 135 Wash.2d at 663, 958 P.2d 301.
¶ 25 Mr. Davis alleged that Fred's Appliance subjected him to a hostile work environment and terminated his employment in violation of the Washington law against discrimination (WLAD), chapter 49.60 RCW. Br. of Appellant at 21–24; CP at 6 (citing (RCW 49.60.180)); CP at 133–34. To establish a hostile work environment claim, an employee must allege facts proving that harassment (1) was unwelcome, (2) was because he is a member of a protected class, (3) affected the terms and conditions of his employment, and (4) was imputable to his employer. Antonius v. King County, 153 Wash.2d 256, 261, 103 P.3d 729 (2004). There is no dispute that the “Big Gay Al” comments were unwelcome. The rest of the elements are the concern here. A. Protected Class
¶ 26 Mr. Davis alleges that Mr. Ellis harassed him because Mr. Ellis perceived Mr. Davis as homosexual. The WLAD prohibits discrimination on the basis of sexual orientation. RCW 49.60.180. “ ‘Sexual orientation’ ” is statutorily defined as “heterosexuality, homosexuality, bisexuality, and gender expression or identity.” RCW 49.60.040(26). The statute defines “ ‘gender expression or identity’ ” as “having or being perceived as having a gender identity, self-image, appearance, behavior, or expression, whether or not that gender identity, self-image, appearance, behavior, or expression is different from that traditionally associated with the sex assigned to that person at birth.” RCW 49.60.040(26). Here, there is no question that Mr. Davis belongs to a protected class because he is heterosexual. However, a hostile work environment claim requires that he be discriminated against because of his sexual orientation. See Glasgow v. Georgia–Pacific Corp., 103 Wash.2d 401, 407, 693 P.2d 708 (1985). Mr. Davis was not harassed because he is heterosexual. The question raised by the contentions here is whether the WLAD prohibits discrimination based on perceived sexual orientation.
¶ 27 We look to the statute's plain language to give effect to the legislative intent. Calhoun v. State, 146 Wash.App. 877, 885, 193 P.3d 188 (2008). The statute's language is only open to judicial interpretation if it is ambiguous. Id. The WLAD also requires liberal construction to accomplish its purpose. RCW 49.60.020; Marquis v. City of Spokane, 130 Wash.2d 97, 108, 922 P.2d 43 (1996). One of the purposes is to eliminate and prevent employment discrimination. RCW 49.60.010. Nothing in the WLAD should “be construed to deny the right to any person to institute any action or pursue any civil or criminal remedy based upon an alleged violation of his or her civil rights.” RCW 49.60.020.
¶ 28 Fred's Appliance relies on the statute's language to argue that it does not prohibit perceived sexual orientation discrimination. Br. of Resp't at 27. And the statute makes no mention of perception in its definition of “sexual orientation.” This suggests to us that the legislature intended perception to come into play only in gender identity discrimination,but not in discrimination based upon homosexuality or heterosexuality. SeeRCW 49.60.180.
¶ 29 Mr. Davis argues that the prohibition against sexual orientation discrimination should be applied to those who are discriminated against due to perceived sexual orientation because the court upheld a similar rule related to perceived disabilities. Br. of Appellant at 15–18 (citing Barnes v. Washington Natural Gas Co., 22 Wash.App. 576, 591 P.2d 461 (1979)). In Barnes, the court held that a person who did not have epilepsy, but who was perceived as having epilepsy, had a cause of action under the WLAD. 22 Wash.App. at 583, 591 P.2d 461. At the time, the WLAD defined “handicap” as: “ ‘presence of a sensory, mental, or physical handicap.’ ” The Human Rights Commission had interpreted “handicap” as applying to any disability “ ‘perceived to exist, whether or not it exists in fact.’ ” Id. at 579, 591 P.2d 461 (citing former WAC 162–22–040). The court upheld the commission's interpretation of disability. It relied on the WLAD's mandate of liberal construction. It also relied on the rule that, when an agency is charged with enforcing a statute, that agency's interpretation of the statute should be given great deference. Id. at 581, 591 P.2d 461;see Retail Store Employees Union, Local 1001 v. Washington Surveying & Rating Bureau, 87 Wash.2d 887, 898, 558 P.2d 215 (1976).
¶ 30 However, the statutory context of “sexual orientation” at issue here is different than that of “handicap” in Barnes. Here, a definition of “gender expression or identity” is embedded in the definition of “sexual orientation.” RCW 49.60.040(26). “Gender expression or identity” explicitly includes perception. RCW 49.60.040(26) (“having or being perceived as having a gender identity” (emphasis added)). If “being perceived” is read into the definition of “sexual orientation,” then “being perceived” in the definition of “gender expression or identity” would be meaningless. We presume when the legislature uses different words it intended a different meaning. State v. Keller, 98 Wash.App. 381, 384, 990 P.2d 423 (1999), aff'd, 143 Wash.2d 267, 19 P.3d 1030 (2001).
¶ 31 We therefore conclude that “perceived sexual orientation” is not a protected class and therefore Mr. Davis is not a member of a protected class. B. Terms and Conditions of Employment
¶ 32 Mr. Davis must also show that the conduct here was so severe or pervasive that it affected the terms and conditions of employment. Washington v. Boeing Co., 105 Wash.App. 1, 10, 19 P.3d 1041 (2000). That is a question of fact. Adams v. Able Bldg. Supply, Inc., 114 Wash.App. 291, 296, 57 P.3d 280 (2002). To determine whether conduct was severe or pervasive enough to affect the terms and conditions of employment, we 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. Boeing, 105 Wash.App. at 10, 19 P.3d 1041. “Casual, 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. And the conduct must be objectively and subjectively abusive. Adams, 114 Wash.App. at 297, 57 P.3d 280.
¶ 33 The uncontested facts show that Mr. Ellis called Mr. Davis “Big Gay Al” three times in one week. Mr. Ellis did not physically threaten or physically humiliate Mr. Davis. He uttered something offensive. He made a casual reference, albeit a highly inappropriate reference, to a television character. Again, considering the utterances here in a light most favorable to Mr. Davis, we are led to conclude that the utterances were only casual, isolated, and trivial. See Boeing, 105 Wash.App. at 10, 19 P.3d 1041. C. Harassment Imputed to Employer
¶ 34 Harassment is imputed to an employer in one of two ways. See Glasgow, 103 Wash.2d at 407, 693 P.2d 708. First, it can be imputed to the employer if the harasser is an owner, partner, corporate officer, or manager. Id. Second, it can be imputed to the employer if the harasser is the plaintiff's supervisor or co-worker if the employer “authorized, knew, or should have known of the harassment and ... failed to take reasonably prompt and adequate corrective action.” Id.
¶ 35 First, Mr. Davis argues that Mr. Ellis's harassment should be imputed to Fred's Appliance because Mr. Ellis is a manager. Br. of Appellant at 21. The two-part rule for imputing harassment suggests that there is some difference between managers and, collectively, supervisors and co-workers. Francom v. Costco Wholesale Corp., 98 Wash.App. 845, 854–55, 991 P.2d 1182 (2000). At some point in an employer's chain of command, there will be little distinction between a manager and a supervisor. Id. at 856, 991 P.2d 1182. Thus, to automatically impute harassment to an employer, the manager's rank in the company's hierarchy must be high enough that the manager is the employer's alter ego. Id. at 855–56, 991 P.2d 1182 (front-end manager at 1 of Costco's 200 warehouses could not be imputed to Costco); Boeing, 105 Wash.App. at 11–12, 19 P.3d 1041 (flight-line managers were not high enough in Boeing's chain of command to impute their harassment to Boeing).
¶ 36 Mr. Ellis is alternatively called “store manager” and “sales manager.” CP at 107–08, 173–74. But Mr. Davis presents no evidence to rebut the employer's showing that Mr. Ellis is essentially a supervisor. Mr. Ellis's authority is limited to the sales staff in his store; but even there, he cannot fire or hire any sales employees. Mr. Ellis had no authority to punish employees. Moreover, Mr. Ellis did not help create company policies or business and marketing strategies, and he had no authority to execute Fred's Appliance's contracts. Mr. Ellis held a higher position than Mr. Davis but there is no evidence that Mr. Ellis was the employer's alter ego.
¶ 37 Second, Mr. Davis argues that the harassment should be imputed because Fred's Appliance knew of the harassment and failed to take reasonably prompt and adequate corrective action. Br. of Appellant at 25–26. He contends that Fred's Appliance's corrective action was inadequate because Mr. Ellis ultimately gave an insincere apology and Mr. Varness discouraged Mr. Davis from writing a more formal complaint. Br. of Appellant at 25–26.
¶ 38 We read the record differently. Mr. Ellis made the last “Big Gay Al” comment on a Thursday. Mr. Fisher and Mr. Miller learned of the comments on the same day. Mr. Fisher told Mr. Varness about them on the following Monday. On that same day, Mr. Varness discussed the issue with Mr. Davis and told Mr. Davis that Mr. Ellis would apologize. The following day, Mr. Varness and Mr. Fisher met with Mr. Ellis, told him that his comments were unacceptable and that he would apologize to Mr. Davis. The apology obviously did not go well, but nonetheless we conclude that Fred's Appliance took prompt and adequate steps to stop Mr. Ellis's inappropriate remarks.
¶ 39 Mr. Davis also suggests that Fred's Appliance did not act reasonably because Mr. Varness discouraged him from filing a written complaint. There is no evidence that Mr. Varness discouraged Mr. Davis from filing a more formal complaint. Mr. Davis testified that he did not tell Mr. Varness that he wanted to file a written complaint. According to Mr. Davis, Mr. Varness said, “Al, I would really like to keep you around here. We like you,” and Mr. Davis took that as a veiled threat that he should not file a written complaint. The comment does not amount to a threat.
Termination–Pretext
¶ 40 Mr. Davis argues that his retaliation claim should not have been dismissed because the reason for his termination presents genuine issues of material fact. Br. of Appellant at 26. RCW 49.60.210(1) prohibits discharging or otherwise discriminating against an employee “because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter.”
¶ 41 An employee must prove that (1) he engaged in statutorily protected opposition activity, (2) the employer took adverse employment action, and (3) the employer took adverse employment action because of the opposition activity. Delahunty v. Cahoon, 66 Wash.App. 829, 839, 832 P.2d 1378 (1992). If the employee makes a prima facie case, then the burden shifts to the employer to set forth some evidence that it acted for legitimate, nondiscriminatory reasons. Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wash.2d 46, 68–69, 821 P.2d 18 (1991).
¶ 42 We have already concluded that discrimination based on perceived sexual orientation discrimination is not protected by the WLAD. We need not then address the question of retaliation for protected activity since any activity would not be protected.
Defamation
¶ 43 A threshold requirement of defamation is that the alleged defamatory statement be a statement of fact and not just opinion. Robel v. Roundup Corp., 148 Wash.2d 35, 55, 59 P.3d 611 (2002). But the line between fact and opinion is sometimes blurry. So there is a three-part test to determine whether a statement is actionable. Dunlap v. Wayne, 105 Wash.2d 529, 539, 716 P.2d 842 (1986). We must consider: “(1) the medium and context in which the statement was published, (2) the audience to whom it was published, and (3) whether the statement implies undisclosed facts.” Id. Whether a statement is one of fact or opinion is a question of law unless the statement could only be characterized as either fact or opinion. Id. at 540 n. 2, 716 P.2d 842.
¶ 44 Opinion is more likely in certain contexts. The workplace can be a place that invites “exaggeration and personal opinion,” Id. at 539, 716 P.2d 842;Robel, 148 Wash.2d at 57, 59 P.3d 611. The statements here were comments made by one employee to another in the workplace. Mr. Ellis made his comments as Mr. Davis entered the room. The comments were apparently intended to be comical or pejorative, or both.
¶ 45 The second factor addresses the listener expectations and what the listener would reasonably perceive about the statement. Dunlap, 105 Wash.2d at 539, 716 P.2d 842. Co-workers and customers heard the statements. Mr. Davis had been delivering appliances to Fred's Appliance stores for nearly a year at the time Mr. Ellis made his comments. His co-workers were likely familiar enough with Mr. Davis to know that he was not gay. Customers could not have known whether Mr. Davis was gay, but would not have gathered that Mr. Davis was gay from Mr. Ellis's comments. In the first incident, customers looked uncomfortable after Mr. Ellis made his comments. Mr. Davis presumes that they were uncomfortable because they thought that Mr. Davis was gay. But in context it is more likely that they looked uncomfortable because they recognized that calling a co-worker “Big Gay Al” is inappropriate. In the second incident, Mr. Ellis explained that “Big Gay Al” is from a television program, South Park. Overhearing customers would have understood the statement as a joke or popular cultural reference and not necessarily a reflection on Mr. Davis's sexual orientation. In the third incident, Mr. Ellis again said, “Hey, Big Gay Al,” and Mr. Davis replied, “Hey, I thought I asked you to stop?” In that situation, a customer overhearing it would have perceived that Mr, Davis was the object of some teasing and not necessarily gay.
¶ 46 The third and most crucial factor addresses whether a listener unknown to the plaintiff can judge the truthfulness of the statement. Id. at 530–40, 716 P.2d 842. While some customers could have taken the statement “Big Gay Al” as a truthful statement, the first and second factor suggest that the statements amounted to unwanted co-worker joking or teasing. See Robel, 148 Wash.2d at 57, 59 P.3d 611 (citing Ollman v. Evans, 242 U.S.App.D.C. 301, 750 F.2d 970, 985 (1984)). Considering the totality of the circumstances, the court correctly concluded that Fred's Appliance was entitled to judgment as a matter of law on Mr. Davis's defamation claim.
¶ 47 Mr. Davis also failed to make out a prima facie case of defamation. Once the plaintiff establishes that a statement of fact was made, he must prove four elements: falsity, an unprivileged communication, fault, and damages. Eubanks v. N. Cascades Broad., 115 Wash.App. 113, 119, 61 P.3d 368 (2003). “The prima facie case must consist of specific, material facts, rather than conclusory statements, that would allow a jury to find that each element of defamation exists.” LaMon v. Butler, 112 Wash.2d 193, 197, 770 P.2d 1027 (1989).
¶ 48 Mr. Davis failed to make a sufficient showing of damages. Mr. Davis seeks special damages, but he failed to raise any specific, material facts to support this element of defamation. See id. He also seeks general damages for “mental distress, anguish, humiliation, and loss of enjoyment of life.” CP at 6. General damages are recoverable only from defamation per se. See Haueter v. Cowles Publ'g Co., 61 Wash.App. 572, 578, 811 P.2d 231 (1991). However, imputation of homosexuality is not defamatory per se; defamation per se generally requires imputation of a crime or communicable disease. Boehm v. American Bankers Ins. Group, Inc., 557 So.2d 91, 94–95 (Fla.Dist.Ct.App.1990); Wilson v. Harvey, 164 Ohio App.3d 278, 285–86, 842 N.E.2d 83 (2005).
¶ 49 We affirm the summary dismissal of the suit. I CONCUR: BROWN, J.
SIDDOWAY, A.C.J. (dissenting).
¶ 50 I agree with the majority that Albert Davis has not presented facts that would support a claim under the Washington law against discrimination, chapter 49.60 RCW. I part ways with the majority when it comes to the claim for defamation, however.
¶ 51 Fred's Appliance has not presented evidence that the meaning that listeners attached to “Big Gay Al” is sufficiently free from reasonable doubt as to support denying Mr. Davis a trial. While I agree that Mr. Ellis's name-calling was not defamatory per se, Fred's Appliance did not effectively raise the issue of special damages by its motion below. Even assuming it did, Mr. Davis has alleged special damages in the form of lost employment and supported a causal connection between the name-calling, his reaction to the name-calling, and his discharge by Fred's Appliance.
The Record Does Not Support Dismissal on the Basis of Lack of Damages
¶ 52 I agree with the majority that Mr. Ellis's calling Mr. Davis “Big Gay Al” is not defamatory per se, in the sense of being actionable without proof of special damages because it (1) exposes a living person to hatred, contempt, ridicule, or obloquy, or deprives him of the benefit of public confidence or social intercourse or (2) injures him in his business, trade, profession, or office. Caruso v. Local Union No. 690 of Int'l Bhd. of Teamsters, 100 Wash.2d 343, 353, 670 P.2d 240 (1983); cf.Restatement (Second) of TortsS §§ 570–574, 614 (1977) (identifying imputations of a criminal offense; a loathsome disease; a matter incompatible with a plaintiff's business, trade, profession, or office; or serious sexual misconduct as the types of slander that will subject a publisher to liability without proof of special harm).
As noted in Caruso, Washington decisions also sometimes speak of communications being defamation, libel, or slander “per se” to mean that a communication is defamatory on its face. 100 Wash.2d at 353, 670 P.2d 240 (citing Amsbury v. Cowles Publ'g Co., 76 Wash.2d 733, 737, 458 P.2d 882 (1969)). That is not the meaning at issue here.
¶ 53 Statements falling within the per se categories are thought to be so obviously and materially harmful to a plaintiff that damage can be presumed. See Arnold v. Nat'l Union of Marine Cooks & Stewards, 44 Wash.2d 183, 187, 265 P.2d 1051 (1954) (jury may assess substantial damages in such cases “ ‘upon the assumption that the plaintiff's reputation has been injured and his feelings wounded’ ” (quoting Charles T. McCormick, Handbook on the Law of Damages § 116, at 423 (1935))). By comparison, statements that are not slanderous per se constitute defamation if they “ ‘tend[ ] so to harm the reputation of another as to lower him in the estimation of the community or to deter third persons from associating or dealing with him.’ ” Rickert v. Pub. Disclosure Comm'n, 161 Wash.2d 843, 851 n. 8, 168 P.3d 826 (2007) (quoting Restatement § 559 (1977)). Today, and particularly where the audience is or includes younger listeners, it is unrealistic to say that an imputation of homosexuality is so obviously and materially harmful to a plaintiff that damage may be presumed. See, e.g., Peter Baker, Same–Sex Marriage Support Shows Pace of Social Change Accelerating,N.Y. Times, May 11, 2012.
¶ 54 Mr. Davis can be excused from devoting a portion of his summary judgment response to special damages, however, because the existence of a genuine issue of fact as to damages was not effectively raised by Fred's Appliance. The company's motion for summary judgment relied on the absence of a genuine issue of fact as to damages in passing, at best. It did not mention an absence of evidence to support the damages element in the motion itself or in the introduction and summary of its argument. In the body of its brief, its discussion of damages consisted of four conclusory sentences:
Plaintiff's claim of defamation fails as a matter of law because there are no facts to establish a prima facie case. A plaintiff bringing a defamation action must prove “four essential elements: falsity, an unprivileged communication, fault, and damages.” Mark v. Seattle Times, 96 Wash.2d 473, 486, 635 P.2d 1081 (1981).
Clerk's Papers at 101. After elaborating on the absence of facts supporting vicarious liability or that Mr. Ellis was communicating a statement of fact, it concluded:
Finally, without causation and damages, there is [no] available remedy. Plaintiffs are unable to establish any liability of Fred's Appliance and cannot satisfy the elements of a defamation claim.
Id. While it further briefed the alleged absence of evidence supporting vicarious liability or an actionable statement of fact, it said nothing else about damages. In responding to the company's motion, Mr. Davis admittedly did not directly address damages at all.
¶ 55 In moving for summary judgment, it is the moving party that bears the initial burden of showing the absence of an issue of material fact. Young v. Key Pharm., Inc., 112 Wash.2d 216, 225, 770 P.2d 182 (1989). Here, Mr. Davis's complaint alleged that he had suffered damages and explicitly alleged that he had suffered special damages in the form of lost wages and benefits. To meet its initial burden as the moving party, Fred's Appliance was required, at a minimum, to present some evidence that Mr. Davis had not suffered the damages he claimed to have suffered or some argument why they were not recoverable. It offered neither.
¶ 56 The Restatement (Second) of Torts defines the “special harm” required to recover for slander that is not actionable per se as “the loss of something having economic or pecuniary value,” explaining that the requirement can be traced back to the conflicting jurisdictions of the royal and the ecclesiastical courts, in which the former acquired jurisdiction over some kinds of defamation only because they would be found to have resulted in “ ‘temporal’ ” rather than “ ‘spiritual’ ” damage. Restatement § 575 cmt. b (1977). The Restatement suggests that special harm includes any pecuniary or economic loss, explicitly identifying discharge from employment as a type of special harm. Id.
¶ 57 Of course, the defamation must be the proximate cause of the special damages. Schmalenberg v. Tacoma News, Inc., 87 Wash.App. 579, 599 & n. 56, 943 P.2d 350 (1997). In the usual case where discharge from employment is the special harm suffered, it is likely because the employer believes or is concerned that others will believe defamatory matters about its employee. The Restatement suggests, however, that defamation is the legal cause of special harm if it is a substantial factor in bringing about the harms and “there is no rule of law relieving the publisher from liability because of the manner in which the publication has resulted in the harm.” Restatement § 622A(b) (1977). The rules that can relieve the defamer from liability are, in general, the same as those that determine the similar question of the liability of a negligent actor for physical harm. Id. at § 622A cmt. c. They include the rule that acts taken by the person who is harmed as a normal response to the situation created by the actor's tortious conduct are not a superseding cause of harm which the actor's conduct has been a substantial factor in bringing about. Restatement (Second) of Torts § 443 & cmt. a (1965).
¶ 58 Such principles were applied in Stevens v. Haering's Grocetorium, 125 Wash. 404, 216 P. 870 (1923), where the court affirmedthe trial court's refusal to instruct a jury, as requested by the defamer, that the defamer could not be held liable for damages resulting from the plaintiff's own statements. The court held that the defamer was not entitled to the instruction where the plaintiff, in response to defamatory charges, “as a natural and to be anticipated result, became hysterical and said and did things which were the pure product of appellants' action rather than the result of her own volition.” 125 Wash. at 405, 216 P. 870.
¶ 59 In my view, Fred's Appliance is not entitled to summary judgment on the basis of a failure of Mr. Davis to present evidence of special damages because it failed to meet its initial burden as the moving party. And if we review the evidence presented by both parties on other matters raised by the company's motion, it includes evidence from which a jury could find that the company's discharge of Mr. Davis—a special harm—was the result of acts on his part that were the foreseeable response to Mr. Ellis's repeated name-calling.
Absent Signals That a Speaker Is Not Communicating Fact, Referring To an Individual As Gay Is Capable of Conveying That He Is Gay
¶ 60 In determining whether a given communication is defamatory, three questions may arise: first, whether the communication was reasonably capable of conveying the particular meaning ascribed to it by the plaintiff; second, whether that meaning is defamatory; and third, whether the meaning in question was in fact conveyed to and understood by the recipient of the communication. Restatement§ 614 & cmt. b (1977). The court determines the first two questions and the jury determines the third. Fred's Appliance argues that it was entitled to summary judgment on either of the first two issues.
¶ 61 The company argues that Mr. Ellis's addressing Mr. Davis as “Big Gay Al” was not reasonably capable of conveying the meaning ascribed to it by the plaintiff: that Mr. Davis was gay. While Mr. Ellis literally called Mr. Davis “Gay,” he claims it was in jest. A problem with fitting “the round peg of humor into the square hole of defamation” is that it “does not fit easily into the paradigm of truth and falsity. Humor is by definition not ‘serious,’ thus suggesting that it operates outside the realm of anything one could verify.” Laura E. Little, Just a Joke: Defamatory Humor and Incongruity's Promise, 21 S. Cal. Interdisc. L.J.. 95, 119 (2011). By the same token, the fact that a speaker intends an admitted mischaracterization in jest does not make it nonactionable if the plaintiff can prove the elements of defamation. See Gregory G. Samo, Annotation, Libel Or Slander; Defamation By Statement Made In Jest, 57 A.L.R.4th 520 (1987 & Supp.2012) and cases collected therein.
¶ 62 Beginning with Benjamin v. Cowles Publishing Co., 37 Wash.App. 916, 922, 684 P.2d 739 (1984), Washington courts have determined whether communications that rely on metaphor, hyperbole, satire, sarcasm, or parody are actionable defamation by analyzing them as opinion. Accord Dunlap v. Wayne, 105 Wash.2d 529, 539, 716 P.2d 842 (1986) (exaggeration/hyperbole in labeling a payment a “kickback”); Hoppe v. Hearst Corp., 53 Wash.App. 668, 672–73, 770 P.2d 203 (1989) (satire). In determining whether the communication is nonactionable opinion, Washington cases have considered “the totality of circumstances in which a statement was made,” including, at least, the circumstances identified by the majority opinion: “(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, 105 Wash.2d at 539, 716 P.2d 842. Other Washington cases have relied on the test adopted by the United States Supreme Court to determine whether a statement may fall outside the scope of First Amendment protection: whether it is “provable as false.” Haueter v. Cowles Publ'g Co., 61 Wash.App. 572, 586, 811 P.2d 231 (1991) (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990)). Whichever analysis is applied, the objective is to protect a speaker where “the kind of language used and the context in which it is used may signal readers that an author is not purporting to state or imply actual, known facts.” Milkovich, 497 U.S. at 25, 110 S.Ct. 2695 (Brennan, J., dissenting).
¶ 63 Contrary to Fred's Appliance's suggested analysis, Washington cases do not treat the workplace as a setting in which mischaracterization is the norm. In Robel v. Roundup Corp., 148 Wash.2d 35, 59 P.3d 611 (2002) the plaintiff, who filed a claim of workplace injury and then maintained a diary recording alleged wrongdoing by others in her workplace, was called an “idiot,” “snitch,” “squealer,” and a “liar” by her co-workers. In finding these epithets nonactionable in context, our Supreme Court did not rely on a conclusion that workplaces generally invite exaggeration or mischaracterization, but instead—given the history of Ms. Robel's claim and the skepticism and resentment with which it was met by her co-workers—concluded that “[t]hose engaging in the name-calling were ... individuals who were potentially interested in discrediting her complaints ... or who were personally interested in ostracizing Robel in the workplace.” 148 Wash.2d at 56, 59 P.3d 611. Elsewhere, it held that the audience to the communications was prepared for mischaracterization and exaggeration not because of the workplace setting alone, but because “[t]hey would have been aware of the animosity between Robel and other co-workers.” Id. at 57, 59 P.3d 611. In other words, it was the listeners' awareness of the ongoing dispute between Robel and her co-workers that signaled to listeners that the speakers were “antagonistic or resentful co-worker[s].” Id. Neither Robel nor the other Washington cases cited by Fred's Appliance support the proposition that reasonable listeners automatically discount statements made by one employee about another.
¶ 64 Turning to any other signals that Mr. Ellis was not stating known facts, employees would know and customers would presume that “Big Gay Al” was not Mr. Davis's real name. But review of the declarations and deposition testimony submitted in support of the company's motion for summary judgment reveals nothing about Mr. Ellis's statements, the setting, or the audience that would have signaled that his nickname for Mr. Davis was intended to be ironic rather than descriptive, and the rest of the nickname—“Big” and “Al”—was descriptive. There is nothing in the record establishing that anyone in the audience knew that Mr. Davis was heterosexual.
¶ 65 Fred's Appliance likens this case to Hoppe, in which a satirical newspaper column about a fictional “Hurley Herpes” that pilloried a former King County Assessor, Harley Hoppe, was found nonactionable as a matter of law. But there, the court relied on multiple signals that use of the name “Hurley Herpes” did not communicate an actual fact about Hoppe's medical condition. The columnist was “known for his sharp pen and humorous, fanciful columns.” 53 Wash.App. at 670, 770 P.2d 203. The column was written as a first-person narrative by “Philip Marlowe” and parodied Raymond Chandler's detective novels. The audience to whom the column was directed knew that the author “frequently used alliterative nicknames to refer to public figures.” Id. at 673, 770 P.2d 203. Here, the company relies on its assertion that “Big Gay Al” is the name of a “popular cartoon character,” Br. of Resp't at 1, although without presenting evidence that members of Mr. Ellis's audience were familiar with the character or that the South Park program is so widely viewed as to make familiarity with “Big Gay Al” commonplace. Even so, referring to Mr. Davis by the name “Big Gay Al” does not, on its face, reveal that “Big” and “Al” have truth content, but “Gay” does not.
¶ 66 The answer to the first question, then, is that Mr. Ellis's calling Mr. Davis “Big Gay Al” was sufficiently capable of conveying that Mr. Davis was gay that a jury, not a gatekeeping court, should decide its perceived meaning. See Amsbury v. Cowles Publ'g Co., 76 Wash.2d 733, 740, 458 P.2d 882 (1969) (in determining whether a communication was capable of conveying the meaning ascribed by the plaintiff, “in all but extreme cases the jury should determine the question”); Restatement § 563 cmt. e (1977) (unless the meaning attached to the communication by the persons to whom it was published is free from reasonable doubt, it is for the jury to determine the meaning and construction of the alleged defamatory language).
An Attribution of Homosexuality Could Prejudice Mr. Davis in the Estimation of a Sufficient Segment of the Population To Entitle Him To Jury Trial
¶ 67 The next issue argued by Fred's Appliance on appeal is whether asserting that Mr. Davis is gay is defamatory at all. While the two judges in the majority and I agree that such a communication is not defamatory per se, a plaintiff alleging simple defamation need not show that a communication lowers him in the estimation of the entire community. The Restatement provides that “[i]t is enough that the communication would tend to prejudice him in the eyes of a substantial and respectable minority” of those who hear the challenged speech. Restatement § 559 cmt. e (1977); Lyrissa Barnett Lidsky, Defamation, Reputation and the Myth of Community, 71 Wash. L.Rev.. 1, 17 n.87 (1996) (characterizing the Restatement test as the prevailing American rule). Prosser and Keeton have criticized applying a normative standard for defining a sufficient minority view, “since the court cannot be called upon to make a definitive pronouncement upon whether the views of different segments of the community are right or wrong, sound, or morally justifiable.” W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 111, at 777 (5th ed.1984) (criticizing a requirement that the plaintiff be lowered in the esteem of “ ‘right-thinking people’ ”). They suggest
[t]he line is drawn ... when the group who will be unfavorably impressed becomes so small as to be negligible, or one whose standards are so clearly anti-social that the court may not properly consider them.
Id. at 778 (footnote omitted).
¶ 68 Even contemporary cases that reject imputations of homosexuality as defamatory per se recognize that the imputation presents enough potential for harm to reputation to be actionable with proof of special damages. See, e.g., Stern v. Cosby, 645 F.Supp.2d 258, 275 (S.D.N.Y.2009) (noting that defendants' statements “are not defamatory per se merely because they impute homosexuality to Stern. They are, however, nonetheless susceptible to a defamatory meaning”); Yonaty v. Mincolla, 97 A.D.3d 141, 945 N.Y.S.2d 774, 779 (2012) (holding that imputation of homosexuality was not defamation per se “and, thus, plaintiff's failure to allege special damages requires that the remaining cause of action for slander be dismissed”); Donovan v. Fiumara, 114 N.C.App. 524, 442 S.E.2d 572, 575 (1994) (noting the plaintiff did not allege slander per quod).
¶ 69 Such claims must be allowed to go to juries, so that redress is available in cases of provable special harm. As societal norms evolve, false imputations of homosexuality will present a diminishing risk of harm and slander cases arising from them can be expected to produce smaller awards, or perhaps no award, of general damages. But as observed over a century ago by Justice Holmes in Peck v. Tribune Co., 214 U.S. 185, 189–90, 29 S.Ct. 554, 53 L.Ed. 960 (1909)—a libel action based on the false depiction of Elizabeth Peck as a whisky-drinking, whisky-advocating nurse that was dismissed by the court of appeals, there being “no general consensus of opinion that to drink whisky is wrong”—“ It may be that the action for libel is of little use but, while it is maintained, it should be governed by the general principles of tort.”
¶ 70 It oversteps our role to accept Fred's Appliance's invitation and hold, as a matter of law, that an imputation of homosexuality is no longer defamatory.
The Company Has Not Demonstrated That Respondeat Superior Liability Is Not an Issue for the Jury
¶ 71 Finally, Fred's Appliance argues that even if Mr. Davis could assert a defamation claim individually against Mr. Ellis, it can have no liability as a matter of law for Mr. Ellis's statements because they were made outside the scope of his employment. It relies on Washington cases establishing that “ ‘[w]hen an employee's intentionally tortious or criminal acts are not in furtherance of the employer's business, the employer is not liable as a matter of law, even if the employment situation provided the opportunity or means for the employee's acts.’ ” Br. of Resp't at 41 (alteration in original) (quoting Snyder v. Med. Serv. Corp. of E. Wash., 145 Wash.2d 233, 242, 35 P.3d 1158 (2001)). But Mr. Davis has not alleged intentional wrongdoing. To establish the requisite element of fault, only proof of negligence is required of a private plaintiff asserting a defamation claim. Valdez–Zontek v. Eastmont Sch. Dist., 154 Wash.App. 147, 157, 225 P.3d 339 (2010) (citing Bender v. City of Seattle, 99 Wash.2d 582, 599, 664 P.2d 492 (1983)).
¶ 72 Even where an employee's act was merely negligent, the doctrine of respondeat superior still requires that the act fall within the scope of employment. But whether acts are committed within the scope of employment is ordinarily a question for the jury. Gilliam v. Dep't of Soc. & Health Servs., 89 Wash.App. 569, 950 P.2d 20 (1998). The record establishes that Mr. Ellis's responsibilities and authority included interacting with Mr. Davis and giving him direction when Mr. Davis made deliveries to the store where Mr. Ellis served as sales manager. Clearly, addressing Mr. Davis was in furtherance of Fred's Appliance's business and in the course and scope of employment. While the company argues that addressing Mr. Davis in a teasing manner was a violation of company policy, the fact that an employee was violating company policy does not prevent a finding that the employee was acting within the course and scope of employment. “ ‘[A]n act, although forbidden, or done in a forbidden manner, may be within the scope of employment.’ ” Dickinson v. Edwards, 105 Wash.2d 457, 470, 716 P.2d 814 (1986) (quoting Restatement (Second) of Agency § 230 (1958)).
¶ 73 Because I would reverse the award of summary judgment dismissing Mr. Davis's claim of slander, I respectfully dissent.