Opinion
No. 34357-6-II.
May 22, 2007.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-2-04948-6, Katherine M. Stolz, J., entered January 20, 2006.
Affirmed by unpublished opinion per Bridgewater, J., concurred in by Armstrong and Quinn-Brintnall, JJ.
Jane Doe I, a.k.a. Linda Salazar, appeals from a summary judgment order in which the trial court dismissed her lawsuit because the statute of limitations had run. Based on acts that occurred in 1999, 2003, and 2005, she filed a complaint that alleged the following causes of action: (1) hostile work place discrimination; (2) disparate treatment sex discrimination; (3) retaliation; (4) outrage; (5) negligent hiring and/or retention; and (6) invasion of privacy. We affirm the summary judgment, holding that the statute of limitations barred all causes of action, except for the invasion of privacy. Furthermore, we affirm the summary judgment of the invasion of privacy cause of action because the communication was not public.
As counsel for Jane Doe I notes, "Jane Doe I has been identified as Linda Salazar throughout prior investigations and throughout discovery. Salazar will be used for ease of reading." Br. of Appellant at 1. We do the same.
FACTS
In 1988, the Department of Social and Health Services (DSHS) at Western State Hospital (WSH) hired Barrette Green as a mental health technician. In 1994, Green became a forensic therapist. He served in this capacity until 2001, when he became an administrator. And in 2002, he became a risk manager.
Concurrent with his employment, Green became a member of the local Washington Federation of State Employees (WFSE) union. In 1990, Green became one of several union shop stewards, responsible for advising and counseling fellow union members with regard to their complaints about working conditions. In 1992, Green became the chief union shop steward. And in 2001, after several other union positions, Green became president of the local union.
In 2001, WSH employee Kathleen Lizee filed a lawsuit against Green, the State of Washington, and other defendants, alleging claims of sexual harassment, retaliation, and negligent supervision. In 2003, the trial started in Pierce County Superior Court. After Lizee had presented testimony from 17 different witnesses, the parties quickly agreed to a settlement, precluding the rest of the trial. And WSH placed Green on administrative leave.
In 2003, as part of yet another settlement, the parties agreed that DSHS would hire Jan Salisbury, of Salisbury Consulting, "to conduct an independent, thorough investigation into the workplace environment at WSH, to review the allegations of sexual harassment, retaliation and workplace violence there, and to propose specific changes in WSH's training of employees and complaint and investigation process involving claims of sexual harassment." CP at 788.
By the end of the investigation, Salisbury Consulting spent over 1200 hours interviewing 97 witnesses and reviewing several boxes of documents. Fifteen of these witnesses, including Salazar, indicated that Green: (1) had engaged in specific acts of sexual harassment, including both verbal and physical behavior; and (2) had retaliated against them when they resisted or complained. The investigation found that Green had engaged in this behavior since 1988, when he was hired. And the investigation found that there was some dispute over whether Green's supervisors knew of his sexually harassing behavior, yet took no action. Based on these findings, the investigation concluded that the allegations of sexual abuse and retaliation were substantiated.
Following the results of this investigation, WSH terminated Green's employment. In the termination letter to Green, the director of the Mental Health Division of DSHS stated, "You are being disciplined for the following acts of misconduct, engaging in inappropriate conduct directed toward your coworkers Ms. Linda Salazar, Ms. Jackie Delgado, and Ms. Cheryl Reis, starting in the early 1990's through 2003." CP at 320. The director further noted, "Your behavior is so egregious and demeaning to the female staff of the hospital that it cannot be tolerated." CP at 323.
A day after his termination became effective, Green filed a lawsuit in federal court against: (1) the complaining witnesses; (2) the State of Washington and its officials responsible for his termination; and (3) Salisbury Consulting. Green's complaint set forth many different claims. The federal court granted the defendants' summary judgment and dismissed his claims with prejudice.
In 2004, Green also filed a lawsuit against Salazar in Pierce County Superior Court. According to the Pierce County Clerk's Office docket, it appears that the case was dismissed in 2006 after almost two years of inactivity. In 2005, the Personnel Appeals Board denied Green's appeal of his termination.
Meanwhile, Salazar suffered in silence and did not bring forward a complaint until 2005. In her 2005 complaint, she alleged the following six causes of action against Green, DSHS, WSH, and the union: (1) hostile work place discrimination; (2) disparate treatment sex discrimination; (3) retaliation; (4) outrage; (5) negligent hiring and/or retention; and (6) invasion of privacy.
In 1994, WSH hired Linda Salazar as a registered nurse 2. In 1996, she became a registered nurse 3. In 1998, Salazar and Green worked in the same building and met during meetings. They established a friendship and shared personal information, including details of her marriage and divorce.
In 1998, Green began directing personal attention toward Salazar, unsuccessfully asking her out on a date. And, on several occasions, Green would give Salazar "unsolicited hugs." CP at 321. In 1999, Green began having private conversations with Salazar in his office, with the door closed, sharing with her his desire to have her become a registered nurse 4. Ultimately, WSH offered Salazar a position as a registered nurse 4, which she accepted.
In 1999, during a union function in Seattle, Green called Salazar at home and asked her to come to his hotel room. When she refused, Green talked about his sexual fantasies with her. The following morning, Green again called Salazar and told her that he was "thinking about her and masturbating." CP at 321. Salazar told Green that she did not want to hear "that kind of talk," and she quickly hung up the telephone. CP at 321. At that time, Salazar never reported these incidents to anyone.
When Salazar would come to Green's office at WSH, Green would hug her and attempt to kiss her. In 1999, during one particular visit to Green's office, Green "pressed . . . Salazar against the wall, trapping her, and kissed her breast." CP at 321. Salazar told Green that "she did not want [him] to do that and left." CP at 321. Again, at that time, Salazar never reported this incident to anyone.
Despite Salazar's repeated refusals, Green asked Salazar sometime around 1999 if he could come to her house and engage in oral sex. This conversation took place in Green's office at WSH. "For reasons even . . . Salazar does not understand, she agreed." CP at 321. But after Green engaged in oral sex, Salazar told him to stop. After stopping, Green eventually showed her an envelope that contained what appeared to be a gun.
In a 2004 deposition, Salazar stated that this incident occurred during mid-2000 at the latest. In a 2005 deposition, Salazar indicated that all incidents involving Green occurred no later than 1999.
About one month later, Green went to Salazar's house "ostensibly to talk with her about her divorce and what was going on with that." CP at 321. Salazar's ex-husband was there as well. Once her ex-husband left, Green took Salazar's hand and placed it on his erect penis. Salazar pulled away, telling Green, "You're nasty." CP at 321. Again, at that time, Salazar never reported this incident to anyone.
In 2003, just one month after WSH had terminated Green's employment, Salazar noticed a dead, skinned rabbit near the front door of her house. Salazar filed a police report, in which she said that "this may be in retaliation from participating in the investigation." CP at 601. She also said that "several other employees who were also involved in the investigation have made reports of unusual phone calls and garbage left in [their] yards." CP at 601. In addition, the secretary of DSHS asked the Lakewood Police Department, the Steilacoom Police Department, and the Pierce County Sheriff's Office for their assistance in investigating a series of events involving WSH employees. But Salazar admitted that she has no further information about this incident from the police.
A week later, Salazar found a stuffed green bear in her mailbox at WSH. She thought that a patient had given it to her as a Christmas gift. But there was no note or message attached with the bear. Based on the circumstances, though, Salazar's coworkers suggested that Green was responsible for giving Salazar the stuffed green bear. Nevertheless, Salazar stated that "it really boiled down to nothing, because it really hadn't affected my performance at all." CP at 1015.
In 2005, Salazar noticed that her tires had been punctured with nails on at least four separate occasions. Also in 2005, she received at home "mysterious telephone calls that either hang up or have gunshot sounds coming from the other end." CP at 1017.
In response to Salazar's complaint, Green, DSHS, WSH, and the union asserted, among other things, that Salazar's six causes of action were barred by the statute of limitations. Therefore, Green, DSHS, WSH, and the union moved for summary judgment. At the summary judgment hearing, the trial court stated:
All right. Well, this case when it came in front of me some time ago the court did note that there were substantial Statute of Limitations problems. And, unfortunately ongoing discovery has not alleviated those. The acts that [Salazar] complains of all occurred in 1999. The Statute of Limitations expired . . . before she commenced her lawsuit.
RP (Jan. 20, 2006) at 41. Therefore, the trial court granted summary judgment, agreeing that there was no genuine issue of material fact and that Salazar's causes of action were barred by the statute of limitations.
ANALYSIS I. Standard of Review
On an appeal from summary judgment in an employment discrimination case, we engage in the same inquiry as the trial court. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 93 P.3d 108 (2004) (citing Kruse v. Hemp, 121 Wn.2d 715, 722, 853 P.2d 1373 (1993)); deLisle v. FMC Corp., 57 Wn. App, 79, 84, 786 P.2d 839, review denied, 114 Wn.2d 1026 (1990). The standard of review is de novo.
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)).
In an employment discrimination case, an employer who moves for summary judgment bears the initial burden of showing that there is no genuine issue as to any material fact. See, e.g., Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57, 66, 837 P.2d 618 (1992). But once it meets that burden, the burden shifts to the employee to establish specific and material facts to support each element essential to her case. See Hiatt, 120 Wn.2d at 66. In doing so, the employee must do more than express an opinion, speculate, or make conclusory statements. Marquis v. City of Spokane, 130 Wn.2d 97, 105, 922 P.2d 43 (1996). The absence of an essential element of the employee's case makes all other facts immaterial. Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).
Finally, we may sustain the trial court on any correct ground, even though that ground was not considered by the trial court. Nast v. Michels, 107 Wn.2d 300, 308, 730 P.2d 54 (1986); see also State v. Costich, 152 Wn.2d 463, 477, 98 P.3d 795 (2004).
II. Hostile Work Environment
Salazar claims that the trial court erred when it dismissed her hostile work environment claim because the statute of limitations had expired. She argues that "there were multiple incidents that occurred at various times, beginning in 1999 and continuing through 2003 at a minimum that cumulatively make up the hostile work environment and retaliatory discrimination." Br. of Appellant at 26-27. We disagree.
Washington's Law Against Discrimination (WLAD), chapter 49.60 RCW, prohibits employment discrimination based on sex. RCW 49.60.010, .030, .180. RCW 49.60.180(3) makes it an unfair practice for an employer "[t]o discriminate against any person in compensation or in other terms or conditions of employment because of . . . sex." And RCW 49.60.030(2) authorizes a person discriminated against in violation of WLAD to bring a civil action.
Under WLAD, Washington courts recognize two types of sex discrimination claims: (1) the quid pro quo sexual harassment claim; and (2) the hostile work environment. Antonius v. King County, 153 Wn.2d 256, 261, 103 P.3d 729 (2004). Here, Salazar's claim is not a quid pro quo sexual harassment case, i.e., a situation where an employer requires sexual consideration from an employee as a quid pro quo for job benefits. See Glasgow v. Georgia-Pac. Corp., 103 Wn.2d 401, 405, 693 P.2d 708 (1985). Instead, Salazar's claim is a hostile work environment case, a situation wherein the employee seeks to hold the employer responsible for a hostile work environment caused by a supervisor or co-worker's sexual harassment of the employee. Glasgow, 103 Wn.2d at 405.
In order to establish her hostile work environment claim, Salazar had to prove the following elements: (1) the harassment was unwelcome; (2) the harassment was because of sex; (3) the harassment affected the terms and conditions of the employment; and (4) the harassment was imputable to the employer. Glasgow, 103 Wn.2d at 406-07. The third element requires that the harassment be "sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment[,] . . . to be determined with regard to the totality of the circumstances." Glasgow, 103 Wn.2d at 406-07.
WLAD does not contain its own statute of limitations period. Antonius, 153 Wn.2d at 261. But under the general statute of limitations for personal injury claims, a plaintiff must bring discrimination claims within three years. RCW 4.16.080(2); Antonius, 153 Wn.2d at 261-62. For discrete discriminatory or retaliatory acts, such as termination, failure to promote, denial of transfer, or refusal to hire, the statute of limitations period runs from the act itself. Antonius, 153 Wn.2d at 264 (citing Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 108-13, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002). And if the statute of limitations period has run, a discrete act is not actionable, even if it relates to other acts alleged in timely filed charges. Antonius, 153 Wn.2d at 264 (citing Morgan, 536 U.S at 108-13).
In Morgan, the Supreme Court analyzed a Title VII case involving a claim of employment discrimination based on race. Morgan, 536 U.S. at 104. Nevertheless, our Supreme Court adopted Morgan's analysis for liability on a hostile work environment claim. Antonius, 153 Wn.2d at 270.
On the other hand, hostile work environment claims "`are different in kind from discrete acts.'" Antonius, 153 Wn.2d at 264 (quoting Morgan, 536 U.S. at 115). "A hostile work environment claim is comprised of a series of separate acts that collectively constitute one `unlawful employment practice.'" Morgan, 536 U.S. at 117 (quoting 42 U.S.C. §§ 2000e- 5(e)(1)). For purposes of the statute of limitations, it does not matter that some of the component acts of the hostile work environment fall outside the statute of limitations period. Antonius, 153 Wn.2d at 264 (citing Morgan, 536 U.S. at 117). Provided that a component act of the hostile work environment claim occurs within the statute of limitations period, courts may consider the entire time period of the hostile environment for the purposes of determining liability. Antonius, 153 Wn.2d at 264 (citing Morgan, 536 U.S. at 117). Moreover, because such claims are based on the cumulative effect of individual acts, our Supreme Court declined to adopt a discovery rule of accrual for hostile work environment claims. Antonius, 153 Wn.2d at 269.
Under Morgan, "A court's task is to determine whether the acts about which an employee complains are part of the same actionable hostile work environment practice, and if so, whether any act falls within the statutory time period." Morgan, 536 U.S. at 120. And our Supreme Court stated:
The acts must have some relationship to each other to constitute part of the same hostile work environment claim, and if there is no relation, or if "for some other reason, such as certain intervening action by the employer" the act is "no longer part of the same hostile environment claim, then the employee cannot recover for the previous acts" as part of one hostile work environment claim.
Antonius, 153 Wn.2d at 271 (quoting Morgan, 536 U.S. at 118).
Here, Salazar argues that her hostile work environment claim is composed of a series of separate acts that collectively constituted one unlawful employment practice from 1999 until 2003. For the first time on appeal, Salazar argues that Green's "mere presence" at WSH from 1999 until 2003 was part of the same actionable hostile work environment claim. Br. of Appellant at 31. Although Salazar references the record, she relies on speculation and argumentative assertions to demonstrate that Green's mere presence at the WSH was "sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment." Glasgow, 103 Wn.2d at 406. Thus, she has failed to show a genuine issue of material fact as to her claim based on Green's mere presence at the WSH. Vallandigham, 154 Wn.2d at 26 (citing Atherton, 115 Wn.2d at 516).
There is no doubt that Green sexually harassed Salazar in 1999. But the acts that occurred in 1999 have no relation to the acts that occurred in 2003. After all, Green filed his lawsuit in federal court only after his termination from WSH became effective. As the union notes, "Green's decision to bring a lawsuit is certainly outside any capacity he had with either the employer or the [union]." Br. of Resp't WSFE at 17. And while Green's motives for filing his lawsuit may have been questionable, it nevertheless followed his termination from WSH, i.e., a "certain intervening action by the employer." Antonius, 153 Wn.2d at 271 (quoting Morgan, 536 U.S. at 118).
Salazar also argues that Green was somehow responsible for the dead, skinned rabbit and the stuffed green bear. But she simply relies on speculation and argumentative assertions. As far as the dead, skinned rabbit, she admitted that she had no further information about this incident from the police. As far as the stuffed green bear, she stated, "I don't know where the bear came from." CP at 1015. In other words, Salazar has not shown a genuine issue of material fact as to her claim based on these acts.
As far as the flat tires, Salazar agreed that she had no basis to believe that someone was intentionally puncturing her tires. As far as the "mysterious" phone calls, Salazar agreed that she had nothing but her suspicion that Green or one of his supporters was calling her. CP at 1017.
Furthermore, these acts occurred almost four years after Green sexually harassed Salazar in 1999. While a gap in time, in and of itself, is not a reason to treat acts occurring before and after that gap as not constituting parts of the same unlawful employment practice, it is something for us to consider. Antonius, 153 Wn.2d at 272.
Therefore, we hold that: (1) the 1999 acts and the 2003 acts are not part of the same actionable hostile work environment claim; (2) there is no genuine issue of material fact as to Salazar's claim based on the 2003 acts; and (3) a claim based on the 1999 acts is barred by the three-year statute of limitations. Therefore, summary judgment was proper.
II. Disparate Treatment on the Basis of Sex
In her amended complaint, Salazar alleged disparate treatment sex discrimination. The trial court summarily dismissed this claim as well. On appeal, Salazar has not assigned error to the trial court's dismissal of this claim.
III. Retaliation
Salazar claims that the trial court erred when it dismissed her retaliation claim because the statute of limitations period had expired.
We disagree.
Under RCW 49.60.210(1):
It is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter.
To establish a prima facie case of retaliatory conduct, Salazar must show that: (1) she engaged in a statutorily protected activity; (2) WSH and/or the union took some adverse employment action against her; and (3) retaliation was a substantial factor behind the adverse employment action. Delahunty v. Cahoon, 66 Wn. App. 829, 839-41, 832 P.2d 1378 (1992).
Salazar claims that the 2003 acts "were no doubt a by-product of the sexually hostile work environment ratified by the State's omissions and actions, such as the several promotions granted to . . . Green after his sexually harassing behaviors were exposed." Br. of Appellant at 43. She even claims that it was not uncommon for union members, also known as "The Green Machine," to "do his dirty work." Br. of Appellant at 43.
Absent these claims, Salazar has failed to show a genuine issue of material fact that WSH or the union took any adverse employment action against her after she complained about Green's sexual harassment. Summary judgment was proper.
And even if we were to consider the 1999 acts as retaliatory acts, the three-year statute of limitations period has run.
IV. Outrage
Salazar claims that the trial court erred when it dismissed her outrage claim because the statute of limitations period had expired. She argues that under the discovery rule, the statute of limitations period did not begin to run until 2003, when she finally comprehended the 1999 acts. We disagree.
To establish a common law outrage claim, Salazar must show: (1) extreme and outrageous conduct; (2) intentional or reckless infliction of emotional distress; and (3) severe emotional distress on her part. Reid v. Pierce County, 136 Wn.2d 195, 202, 961 P.2d 333 (1998).
The statute of limitations period begins to run when the plaintiff's cause of action accrues. Crisman v. Crisman, 85 Wn. App. 15, 20, 931 P.2d 163, review denied, 132 Wn.2d 1008 (1997). Generally, it occurs when the plaintiff suffers some form of injury or damage. In re Estates of Hibbard, 118 Wn.2d 737, 744, 826 P.2d 690 (1992).
There is some disagreement in this state about whether outrage claims are governed by a three-year statute of limitations, RCW 4.16.080(2), or the two-year statute of limitations, RCW 4.16.100. See Doe v. Finch, 133 Wn.2d 96, 101, 942 P.2d 359 (1997).
But in some circumstances, there is a delay between the injury and the plaintiff's discovery of it. Crisman, 85 Wn. App. at 20. If the delay was not caused by the plaintiff sleeping on her rights, courts may apply the discovery rule. Crisman, 85 Wn. App. at 20. The discovery rule provides that a cause of action does not accrue until the plaintiff knows, or in the exercise of due diligence should have known, the factual bases of the cause of action. Hibbard, 118 Wn.2d at 744-45; Allen v. State, 118 Wn.2d 753, 758, 826 P.2d 200 (1992).
Courts apply the discovery rule in two categories of cases. Crisman, 85 Wn. App. at 20. First, courts apply this rule in cases where the defendant fraudulently conceals a material fact from the plaintiff and thereby deprives the plaintiff from learning the factual elements of the cause of action. Crisman, 85 Wn. App. at 20. Second, courts apply this rule in cases where the nature of the plaintiff's injury makes it extremely difficult, if not impossible, for the plaintiff to learn the factual elements of the cause of action within the statute of limitations. Crisman, 85 Wn. App. at 21.
But here, Salazar's outrage claim does not fall within either category. None of the respondents in this case concealed any material facts from Salazar, thereby depriving her from learning the factual elements of her cause of action. And the nature of Salazar's alleged injury did not make it extremely difficult or impossible for her to learn the factual elements of her cause of action.
Salazar obviously would have known in 1999 whether Green's conduct: (1) was extreme and outrageous; and (2) intentionally or recklessly inflicted emotional distress. After all, Salazar admitted that she had attended WSH's sexual harassment training sessions, including one session where the facilitators "pointed out various behaviors of sexual harassment." CP at 543. She admitted that she had understood WSH's sexual harassment policy. Finally, she agreed that she was to report to her supervisor any sexual harassment that she knew or observed.
Salazar agreed that this session occurred "sometime between 1996 and 1999." CP at 543.
And Salazar would have known in 1999 whether she suffered from severe emotional distress. According to the Restatement (Second) of Torts §§ 46 cmt. j, at 77-78 (1965):
Emotional distress passes under various names, such as mental suffering, mental anguish, mental or nervous shock, or the like. It includes all highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea. It is only where it is extreme that the liability arises. . . . The law intervenes only where the distress inflicted is so severe that no reasonable [person] could be expected to endure it. . . .
The distress must be reasonable and justified under the circumstances, and there is no liability where the plaintiff has suffered exaggerated and unreasonable emotional distress, unless it results from a peculiar susceptibility to such distress of which the actor has knowledge.
(Emphasis added). Unlike professional malpractice claims or product liability actions, it would not have been extremely difficult or impossible for Salazar in 1999 to discover an injury "that no reasonable [person] could be expected to endure." Restatement (Second) of Torts §§ 46 cmt. j.
And if Salazar did not suffer an injury "that no reasonable [person] could be expected to endure," then Green's conduct probably was not extreme and outrageous in the first place. Restatement (Second) of Torts §§ 46 cmt. j, at 77.
Even though she argues that she "was unable to comprehend the outrage being perpetrated against her" until 2003, Salazar has not shown why it was extremely difficult, if not impossible, for her to know in 1999 whether she suffered from severe emotional distress. Br. of Appellant at 33. And because Salazar has the burden of proving that she could not have discovered the critical facts within the applicable statute of limitation period, she cannot merely rely on conclusory arguments. See G.W. Constr. Corp v. Prof'l Serv. Indus., 70 Wn. App. 360, 367, 853 P.2d 484 (1993) (the burden is on the plaintiff to show that facts constituting the tort were not discovered or could not have been discovered by due diligence within the statute of limitations period), review denied, 123 Wn.2d 1002 (1994).
Therefore, because the nature of Salazar's alleged injury did not make it extremely difficult or impossible for her to learn the factual elements of her cause of action, we do not apply the discovery rule to her outrage claim. As a result, her outrage claim is barred by the applicable statute of limitations, and summary judgment was proper. See RCW 4.16.080(2) and RCW 4.16.100.
VI. Negligent Hiring and/or Supervision
Salazar claims that the trial court erred when it dismissed her negligent hiring and/or supervision claim because the statute of limitations period had expired. She argues that "the statute of limitations regarding his negligent retention should not have commenced until after he ceased [to be] retained." Br. of Appellant at 34. She also notes that she "did not and could not have become aware of the degree in which the State and the [u]nion shielded . . . Green from his accusers until after he was terminated." Br. of Appellant at 34.
Division One of this court has described the torts of negligent hiring, supervision, and retention as follows:
[A]n employer may be liable to a third person for the employer's negligence in hiring or retaining a servant who is incompetent or unfit. Such negligence usually consists of hiring or retaining the employee with knowledge of his unfitness, or of failing to use reasonable care to discover it before hiring or retaining him. The theory of these decisions is that such negligence on the part of the employer is a wrong to such third person, entirely independent of the liability of the employer under the doctrine of respondeat superior. It is, of course, necessary to establish such negligence as the proximate cause of the damage to the third person, and this requires that the third person must have been injured by some negligent or other wrongful act of the employee so hired.
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)) (emphasis added), review denied, 110 Wn.2d 1016 (1988); see also Haubry v. Snow, 106 Wn. App. 666, 31 P.3d 1186 (2001).
The three-year statute of limitations for personal injury actions governs Salazar's claim for negligent hiring and/or supervision. RCW 4.16.080(2). Barring application of the discovery rule, a cause of action for negligent injury accrues at the time the act or omission occurs. Hibbard, 118 Wn.2d at 744-45. Accordingly, Salazar's claim for negligent hiring and/or supervision accrued in 1999, the year in which her injuries allegedly occurred. Because Salazar did not commence her action until 2005, more than three years after accrual, summary judgment was proper.
VII. Invasion of Privacy
Salazar claims that the trial court erred when it dismissed her invasion of privacy claim because the statute of limitations period had expired. She also claims that "there is a question of material fact" as to whether the State's publication of her name in Green's termination letter violated her right of privacy. Although the trial court erred in dismissing her claim because the statute of limitations period had expired, summary judgment was nevertheless proper.
The Restatement (Second) of Torts §§ 652D (1977) provides the general rule for invasion of privacy by publication. Reid, 136 Wn.2d at 205; Fisher v. Dep't of Health, 125 Wn. App. 869, 879, 106 P.3d 836, review denied, 155 Wn.2d 1013 (2005). It states:
One who gives publicity to a matter concerning the private life of another is subject to liability to the other for invasion of [her] privacy, if the matter publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.
Restatement (Second) of Torts §§ 652D, at 383. As used in this section, publicity "means that the matter is made public, by communicating it to the public at large, or to so many persons that the matter must be regarded as substantially certain to become one of public knowledge." Restatement (Second) of Torts §§ 652D cmt. a, at 384.
Here, we have no problem in holding that Salazar's invasion of privacy claim is not barred by the statute of limitations. After all, the act about which Salazar complains is the disclosure of her name in Green's November 6, 2003 termination letter. The invasion of privacy claim is governed by a two-year statute of limitations. See RCW 4.16.100; Eastwood v. Cascade Broad. Co., 106 Wn.2d 466, 474, 722 P.2d 1295 (1986). And she filed her claim on February 8, 2005, less than two years after Green's termination. Therefore, the trial court erred in dismissing this claim when the statute of limitations period had not yet expired.
In fact, the State concedes that Salazar's invasion of privacy claim was not barred by the statute of limitations.
But summary judgment was nevertheless proper because Salazar failed to show a genuine issue of material fact as to her invasion of privacy claim based on the disclosure of her name in Green's 2003 termination letter. Salazar argues that WSH and Salisbury Consulting "promised confidentiality during its investigation." Br. of Appellant at 46. In a letter to WSH employees before the investigation, the director of the Mental Health Division of DSHS stated:
It is important to me that all employees feel that they can safely report allegations of harassment, retaliation and workplace violence in a manner that maintains confidentiality. As a result, I intend to review the current reporting process and implement changes as necessary. In the interim, to fully ensure confidentiality, I am asking all employees to report issues and concerns directly to me and/or . . . [the] Director of the Human Resources Division.
CP at 1088. And in a separate letter to WSH employees before the investigation, the secretary of DSHS advised employees, "To the extent possible, your report will be treated confidentially and responded to in a timely and sensitive manner." CP at 1090. Even weekly bulletins from WSH advised the employees of this same expectation. Finally, Salazar stated that Salisbury expressly provided her with a promise of confidentiality:
She said that the information was confidential. And when she said that she would be writing a report to the [S]tate in her investigation, that she would include the information. And I asked her then what that meant exactly, and I wanted to be sure that my name wasn't included. She said that she would provide the information but not the names.
And at that point, I said, well, if you include the information and he's privileged to the information, he'll know who it is. And so part of the — she — she assured me that — that the names wouldn't be provided.
CP at 1019.
Salazar also argues that she relied on these alleged promises of confidentiality. She adds, "If I had not gone to Jan Salisbury and given her information about sexual harassment that had occurred at the workplace, the [S]tate wouldn't have the information, and it wouldn't have appeared in the letter." CP at 1016.
She contends that because the State broke these alleged promises, "she suffered the consequences." Br. of Appellant at 48. In her opposition to summary judgment, she argues that the State failed "to appreciate the magnitude of its disclosure." CP at 746. She explains:
Notably, by virtue of publishing Ms. Salazar's name and details about Barrette Green's sexual victimization of Ms. Salazar, the State publicized the private facts of Ms. Salazar's life because the letter is subject to public disclosure. The State should have known, thus, that the information contained within that letter would eventually reach the public at large. Additionally, once Ms. Salazar's name was provided to Mr. Green, it became the "buzz" of Western State Hospital subjecting Ms. Salazar to shame and emotional distress.
CP at 746.
Although Salazar's argument regarding confidentiality is persuasive, she has not shown that WSH made a public communication. Here, WSH simply disclosed Salazar's name in a letter to Green and WSH's chief executive officer. WSH did not disclose her name, for example: (1) in a newspaper or a magazine; (2) in a weekly bulletin or handbill distributed to a large number of persons; (3) in a radio broadcast; or (4) in an address to a large audience. "Thus, it is not an invasion of the right of privacy . . . to communicate a fact concerning the plaintiff's private life to a single person or even to a small group of persons." Restatement (Second) of Torts §§ 652D cmt. a, at 384.
And, although Salazar claims that she was subjected to shame and emotional distress, she has not shown how the disclosure of her name would be highly offensive to a reasonable person. "The rule . . . gives protection only against unreasonable publicity, of a kind highly offensive to the ordinary reasonable [person]." Restatement (Second) of Torts §§ 652D cmt. a, at 387.
Finally, Salazar has not shown that the matter "is not of legitimate concern to the public." Restatement (Second) of Torts §§ 652D at 383. And as the State notes, "The disclosure was required to further the legitimate State interest of eliminating improper conduct by its employees." Br. of Resp't State at 38. "When the matter to which publicity is given is true, it is not enough that the publicity would be highly offensive to a reasonable person. . . . When the subject-matter of the publicity is of legitimate public concern, there is no invasion of privacy." Restatement (Second) of Torts §§ 652D cmt. d, at 388.
Therefore, as there is no genuine issue of material fact in regard to this claim, summary judgment was proper.
Affirmed.
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.
ARMSTRONG, J., QUINN-BRINTNALL, J., concur.