Opinion
No. 37178-2-II.
May 12, 2009.
Appeal from a judgment of the Superior Court for Thurston County, No. 05-2-01016-6, Chris Wickham, J., entered November 30, 2007.
Affirmed by unpublished opinion per Houghton, J., concurred in by Penoyar, A.C.J., and Quinn-Brintnall, J.
UNPUBLISHED OPINION
In 2004, Carole Jordan filed an administrative claim for unfair labor practices against her employer, Lower Columbia Community College (LCCC).
After a six-day hearing, a hearing examiner for the Washington Public Employment Relations Commission (PERC) dismissed the claim. In 2005, Jordan filed an age discrimination lawsuit against LCCC. She appeals two of the trial court's rulings and from its decision to apply collateral estoppel and grant summary judgment dismissing her 2005 lawsuit. We affirm.
FACTS Administrative Proceedings
Jordan began working for LCCC as a graphics designer in 1997. In 2002, she filed a grievance against her LCCC supervisor for failing to evaluate her and for transferring many of her duties to a co-worker. LCCC later cut Jordan's position to half time, but it assigned her other duties to keep her full-time status and did not cut her pay.
Jordan's union filed an unfair labor practice complaint on her behalf in May 2002. On February 5, 2004, the PERC found in her favor. At some point during this proceeding, LCCC restored her position to full time.
On August 4, 2004, Jordan filed another unfair labor practice complaint with the PERC. She alleged that LCCC had engaged in unfair practices by retaliating against her for engaging in union activity in violation of RCW 41.56.140(3).
Jordan's PERC complaint claimed that supervisor, Janelle Runyon, and others at LCCC discriminated against her in various ways. On November 18, 2005, after a six-day hearing, the PERC hearing examiner issued an opinion dismissing Jordan's complaint. The hearing examiner grouped Jordan's allegations under various subject areas and analyzed the evidence Jordan presented as follows:
a. Allegations of incomplete job assignments or no information given: Jordan complained that she preferred to use standard "blue form" assignment sheets for job assignments. Clerk's Papers (CP) at 72-73. The hearing examiner found that in 2003, Runyon issued a set of guidelines for job requests, which included the use of "blue form" assignment sheets and that these procedures were handled fairly and did not change during Jordan's employment. The hearing examiner also found that Jordan had satisfactorily completed the six jobs she claimed had incorrect assignments and that emails between Runyon and Jordan at the time jobs were assigned demonstrate Jordan did not take issue with her assignments.
b. Allegations of short deadlines: The hearing examiner addressed the circumstances surrounding each of the assignments Jordan alleged Runyon assigned to her at the last minute. The hearing examiner found that Runyon passed information to Jordan on the assignments as she received it from clients, that the summer schedule was released well in advance, and that Runyon offered to remove Jordan from one late project and she declined. The hearing examiner also found that Runyon moved deadlines when necessary, that Jordan never complained about the deadlines, and that Runyon never disciplined her for missing deadlines on these projects.
c. Allegations of no work assignments: The hearing examiner reviewed the specific dates on which Jordan allegedly did not receive any work assignments. The hearing examiner found that the dates were legitimately interrupted by a combination of illnesses and union meetings.
d. Allegations of micromanaging: The hearing examiner reviewed these allegations and determined that one co-worker's disagreement about a certain project did not amount to micromanaging and that an instance of confusion between Jordan and Runyon regarding draft numbering also did not amount to micromanaging.
e. Allegations of disparate treatment: The hearing examiner found that Runyon's disagreement with Jordan about the draft tracking methods was legitimate and did not result in differing treatment.
f. Allegations of giving Jordan's work to her co-worker to complete: The hearing examiner found that both Runyon and others in the office testified that only Jordan had the ability to do artistic design. The hearing examiner found that the work completed by Jordan's co-worker, Joanne Booth, was simple and that it did not result in a lack of work for Jordan.
g. Allegations of exclusion: The hearing examiner found that Jordan's testimony regarding a certain instance of exclusion not credible and that her evidence regarding other instances of exclusion was irrelevant.
h. Allegations of a withheld compliment: The hearing examiner determined that a complimentary customer had addressed its email to Jordan and that Runyon offered to place the email in Jordan's work file.
i. Allegations involving cancelled meetings: A Latin text assignment prompted Jordan's meeting request. Runyon did not reprimand Jordan over her work on this job; nevertheless, Jordan wanted to meet to discuss the matter. The hearing examiner concluded that "[n]othing in the record suggested that the employer intended the meetings as disciplinary," that the employer never took an "adverse job action against Jordan over the Latin text project," and that an employer may cancel meetings without violating labor laws and regulations. CP at 82.
j. Allegations of complaints at a meeting attended by the college president: The hearing examiner found a conflict between Jordan's account of the meeting and LCCC's interpretation of the president's remarks at the meeting. The hearing examiner concluded that the president's "remarks, even taken in the worst light, do not meet the discrimination test. No action was taken against Jordan. She suffered no loss of ascertainable benefits, rights, or status." CP at 83.
k. Allegations of hostility by Runyon's supervisor, Ellen Peres: The hearing examiner dismissed these allegations for reasons similar to those discussed in the previous issue surrounding remarks by the college president. Even assuming Peres' unfriendliness, she never took any adverse action against Jordan and indicated that she would favor mediation of any disputes.
After addressing the evidence presented, the PERC hearing examiner entered findings of fact. The great majority of the hearing examiner's findings support LCCC. The hearing examiner concluded that LCCC did not discriminate against Jordan and dismissed her complaint.
Jordan appealed. On July 11, 2007, the PERC dismissed her appeal. Jordan did not seek judicial review.
Superior Court Case
On May 25, 2005, Jordan filed a lawsuit against LCCC. She alleged age discrimination, retaliation, violation of her right to free speech, and negligent infliction of emotional distress.
LCCC argued collateral estoppel and sought to prevent "Jordan from re-litigating 33 occurrences [of discrimination] that have been finally and necessarily decided by" the PERC proceedings. CP at 8. It also asked the trial court to dismiss her free speech and negligent infliction of emotional distress claims. The trial court dismissed the negligent infliction of emotional distress claim and limited her constitutional claims to equitable relief.
The trial court issued a letter dated November 2, 2007, indicating that it would apply collateral estoppel, precluding Jordan from relitigating facts the hearing examiner already found. It wrote that "[t]he issues of discrimination in the PERC proceeding are identical to the issues presented in this proceeding." CP at 262.
At a November 30, 2007 hearing on summary judgment, LCCC argued that after the application of collateral estoppel,
[T]he only factual issues that remain before the Court are factual allegations of things that happened after the PERC hearing. . . . [T]he question before you today is whether or not the case goes forward on those allegations occurring after the PERC hearing.
Report of Proceedings (RP) at 4. LCCC further argued that "there are no allegations contained in a proper pleading that date after the hearing." RP at 5.
Jordan responded that she had submitted a September 17, 2007 supplemental declaration, setting forth a continuing course of discriminatory conduct. She asserted that the supplemental declaration presented additional facts in dispute, precluding summary judgment.
LCCC responded, "[T]he facts are frozen as of the time the plaintiff files their [sic] complaint" and that to add to the complaint, the plaintiff must file a motion to supplement the pleadings under CR 15(d). RP at 10. The other option, according to LCCC, would be to file a new action.
CR 15(d) provides:
Supplemental Pleadings. Upon motion of a party the court may, upon reasonable notice and upon such terms as are just, permit him to serve a supplemental pleading setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented. Permission may be granted even though the original pleading is defective in its statement of a claim for relief or defense. If the court deems it advisable that the adverse party plead to the supplemental pleading, it shall so order, specifying the time therefor.
The trial court agreed with LCCC that to add new factual allegations to the dispute, Jordan needed to file either a motion under CR 15(d) or a new action. It then asked LCCC whether it would be prejudiced if the court considered her supplemental declaration a supplemental pleading under CR 15(d). LCCC explained that it would be prejudiced if the trial court considered the additional allegations because it had prepared for an upcoming trial date and conducted discovery based on her original allegations.
The trial court stated:
This Court presided over extensive litigation related to specific issues that Ms. Jordan had raised regarding her employment. This Court has ruled on all of those issues. She now wishes to raise additional issues. She certainly has a right to raise those issues, but I'm not persuaded that it is efficient, effective, or fair to include those allegations in the existing case given that the focus of the existing case is really separate and distinct from those new allegations.
RP at 14.
The trial court dismissed Jordan's case on summary judgment, but it noted that she "may file a new case on new facts which could include the allegations that were submitted as part of the motion to amend but would not include" issues addressed in the PERC hearing. RP at 13. Jordan appeals.
In its written order, the trial court explained that the "[f]acts alleged in plaintiff's second declaration dated September 17, 2007 are not subject to Res Judicata or Collateral Estoppel as to events occurring after September 22, 2004." CP at 41. On March 11, 2008, Jordan and a second plaintiff filed an age discrimination complaint against LCCC. That case is pending.
ANALYSIS Collateral Estoppel
Jordan first contends that the trial court erred in applying collateral estoppel. She asserts that the trial court should not have looked to the findings issued in the hearing examiner's decision because the issues in the proceedings were not identical and applying collateral estoppel would result in an injustice to her.
Collateral estoppel, or issue preclusion, serves to prevent retrial of "`crucial issues or determinative facts'" already decided in other litigation. Christensen v. Grant County Hosp. Dist. No. 1, 152 Wn.2d 299, 306, 96 P.3d 957 (2004) (quoting Luisi Truck Lines, Inc. v. Utils. Transp. Comm'n, 72 Wn.2d 887, 894, 435 P.2d 654 (1967)). We review whether collateral estoppel bars relitigation of an issue de novo. Christensen, 152 Wn.2d at 305.
For an issue to be precluded, where the earlier proceeding involved an administrative agency, the party seeking application must establish (1) identical issues in the two proceedings, (2) an earlier judgment on the merits, (3) identical parties or privity of parties, (4) lack of injustice, (5) an agency acting in its area of competence, (6) similar procedures in the two proceedings, and (7) any public policy considerations. Christensen, 152 Wn.2d at 307-08. Jordan's argument revolves only around the first and fourth factors, identical issues and injustice.
Washington Law Against Discrimination Claims
Jordan first contends that collateral estoppel cannot apply to claims such as hers under the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW. She argues that by enacting RCW 49.60.020, the legislature indicated that WLAD claims should not be constrained for any reason.
RCW 49.60.020 states in part:
The provisions of this chapter shall be construed liberally for the accomplishment of the purposes thereof. Nothing contained in this chapter shall be deemed to repeal any of the provisions of any other law of this state relating to discrimination. . . . Nor shall anything herein contained 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.
A recent case decided after the filing of briefs in this appeal directly addresses this issue. In Carver v. State, 147 Wn. App. 567, 574, 197 P.3d 678 (2008), Division Three stated:
The Legislature knows how to bar issue preclusion when it wants to do so.
It has not chosen to do so in the WLAD. Accordingly, in light of the authorities cited, we conclude that collateral estoppel may be applicable to an action brought under our antidiscrimination laws. The trial court correctly concluded that collateral estoppel was potentially applicable to this action.
(Footnote omitted.) We agree with Division Three's reasoning and adopt it. Jordan's initial argument fails.
Identical Issues
Jordan next contends that the PERC hearing and her WLAD discrimination cases present distinct legal issues. She asserts that because the two schemes prohibit different acts by employers, collateral estoppel does not apply.
In Christensen, our Supreme Court held that a PERC decision rejecting a claim of retaliatory discharge barred the pursuit of a later wrongful discharge claim in the superior court action. 152 Wn.2d at 321. Jordan distinguishes Christensen on the ground that the issue the worker raised in the superior court involved the same issue as the PERC matter: whether the employer wrongfully discharged the worker. Jordan claims that because "the public policy on which both the PERC proceeding and the court proceeding were based was identical, the Christensen court held that collateral estoppel applied." Appellant's Br. at 12. Here, in contrast, she asserts that because her lawsuit does not rest on the same legal ground as the PERC matter, collateral estoppel does not apply. We disagree.
Jordan's brief relies heavily on federal cases to support her argument. Unlike WLAD claims, however, federal courts expressly hold that Title VII claims cannot be barred by collateral estoppel. See, e.g., Jacobson v. Wash. State Univ., No. CV-05-0092-FVS, 2007 WL 26765, at *5-6 (E.D. Wa. Jan. 3). See also GR 14.1(b) (permitting citation of unpublished cases from other jurisdictions when that jurisdiction allows citation to unpublished opinions).
In Jacobson v. Washington State University, No. CV-05-0092-FVS, 2007 WL 26765 (E.D. Wa. Jan. 3.), the federal district court applied Christensen to bar relitigation of facts the Washington Personnel Appeals Board (PAB) initially found in rejecting a retaliation claim, in a later WLAD case the worker filed. In Jacobson, as here, the worker argued that the personnel board issues and the WLAD differed. 2007 WL 26765, at *4-5. The court rejected the claim in part because the PAB's factual findings showed that it rejected the evidence the worker presented that his treatment differed from other workers. 2007 WL 26765, at *5.
The legal issues in the Christensen superior court case and the PERC proceeding, and the Jacobson court case and PAB process, overlapped more than the issues in Jordan's lawsuit and her PERC proceeding. Nevertheless, collateral estoppel applies here because the facts she alleged in the PERC hearing, and that the hearing examiner rejected, form both the basis of her unfair labor practice claim and the WLAD claim.
We are mindful that Christensen warns against confusing the preclusive effect of legal conclusions with factual findings when analyzing a collateral estoppel argument:
Christensen argues that the Court of Appeals correctly determined that PERC lacks competence because it has no authority to decide a claim of wrongful discharge in violation of public policy. This argument confuses claim and issue preclusion.
In order for an administrative decision to have collateral estoppel effect, the tribunal must have been competent to decide the issue. This case involves issue preclusion, and the same issue is involved, i.e., whether Samaritan discharged Christensen in retaliation for his union activity. It does not matter that the claim or cause of action that Christensen seeks to pursue in superior court is not the same claim or cause of action that was decided by PERC, or that PERC lacks authority to decide the tort claim; this case does not involve claim preclusion, which applies to preclude the relitigation of the same claim or cause of action.
The relevant inquiry here is whether PERC's determination of the issue in question is within its competence. That is, are its factual findings regarding the decision to discharge within its competence to determine? The agency found that the union failed to make a prima facie case that Christensen was discharged because of his union activities in violation of RCW 41.56.140(1) and found instead that he was discharged because of inappropriate behavior involving the volunteer rider.
152 Wn.2d at 318-19 (some emphasis added) (citation and footnotes omitted).
Christensen, in turn, relies heavily on Shoemaker v. City of Bremerton, 109 Wn.2d 504, 512, 745 P.2d 858 (1987):
Shoemaker argues that the [Bremerton Civil Service] Commission could not have determined the same issue as that presented in the civil rights suit because the Commission had no authority to consider the constitutionality of the City's actions. As noted above, he argues that the Commission acted beyond its competence for the same reason. These arguments confuse claim and issue preclusion. While the Commission could not have adjudicated the section 1983 claim, 28 U.S.C. § 1343, it may have decided an issue of fact that is common to both Shoemaker's petition for reinstatement before the Commission and to his section 1983 claim. If it did, and if the adjudication was adequate under the Restatement standards adopted here, then the issue has been decided for all purposes.
(Emphasis added.) Here, the hearing examiner decided issues of fact common to both Jordan's PERC matter and the WLAD case; issue preclusion applies here even though the legal issues differ. Costantini v. Trans World Airlines, 681 F.2d 1199, 1202 (9th Cir. 1982) (examining whether the two suits covered the same "transactional nucleus of facts").
Nevertheless, Jordan argues that claims raised in a PERC setting cannot collaterally estop claims brought under the WLAD. She contends that the two proceedings presented two distinct legal issues: age discrimination in superior court and unfair labor practices in the PERC hearing. Thus, even if LCCC's actions were not motivated by labor issues, they may still have been motivated by age discrimination — essentially a "`mixed motive'" case. Appellant's Br. at 11. Therefore, Jordan argues, "under Washington law, PERC issues and WLAD issues can be presented in the same fact scenarios without collateral estoppel barring the pursuit of either case."
Appellant's Br. at 11. As we previously discussed, however, raising different legal issues in two proceedings does not preclude applying collateral estoppel. The doctrine applies to common findings, even in matters involving distinct legal issues. Shoemaker, 109 Wn.2d at 512-13.
Jordan's argument would have more merit had the PERC hearing examiner issued only the formal findings that LCCC's actions were not unlawful within a labor law context. But the examiner conducted a detailed analysis of all LCCC actions. The examiner concluded that the actions did not occur as Jordan said they did; did not prompt complaint from Jordan at the time they occurred; conformed with LCCC business procedures and practices and arose due to the nature of the work; did not result in any adverse LCCC job action against Jordan or change her benefits, rights, status or other working conditions; and occurred, in some instances, due to a personality dispute rather than animus. It concluded that Jordan's theory that LCCC wanted to build a case against her to justify a termination or to cause her to quit was illogical, given that the amount of Jordan's alleged harassment actually decreased over the time period the PERC complaint covered. It added that Jordan's evidence was weak and that she produced few corroborating witnesses.
As we noted, "`collateral estoppel is intended to prevent retrial of one or more of the . . . determinative facts determined in previous litigation.'" Christensen, 152 Wn.2d at 306 (quoting Luisi, 72 Wn.2d at 894). Here, a thorough review of the PERC decision reveals that the hearing examiner not only issued formal findings of fact but also examined each of Jordan's allegations in detail to determine what happened at LCCC.
Although Jordan's PERC matter and her superior court complaint pursued relief under different statutes, the trial court correctly determined that she could be collaterally estopped from relitigating issues in the complaint that shared common facts with the issues examined in the PERC proceeding. Thus, we must examine whether applying collateral estoppel would cause Jordan injustice.
Injustice
Although the previous analysis demonstrates that collateral estoppel could apply to Jordan's lawsuit, we must also analyze whether collateral estoppel should apply. That is, would an injustice occur if it bars her claims. Christensen, 152 Wn.2d at 307.
Jordan correctly points out that the cases discussed in the context of the identical issue factor addressed issues raised first in an administrative proceeding and again in a lawsuit. See, e.g., Christensen, 152 Wn.2d at 318-19. Her cases present a situation with identical factual issues but different legal issues: her unfair labor practice claim in the PERC proceeding did not involve an age discrimination claim.
In this way, Jordan's cases resemble many of the federal cases tried under Title VII. As noted, federal courts expressly exempt Title VII claims from being collaterally estopped by administrative actions; the WLAD does not. This, however, does not mean that these cases lack relevance when we consider the injustice factor.
See, supra, fn. 3.
The most analogous cases are those addressing National Labor Relations Board (NLRB) proceedings and later Title VII actions in federal district court. Washam v. J.C. Penney Co., 519 F. Supp. 554 (D. Del. 1981). In Washam, the court concluded that unfair labor practice claims raised in an NLRB action did not preclude employees' later lawsuit for race discrimination:
Thus, the NLRB's jurisdiction over race discrimination claims is predicated on the impact of the alleged discrimination on the enjoyment of rights secured to employees under Section 7 of the [National Labor Relations Act]. The absence of such an impact from a racially motivated discharge of a supervisor places such a discharge beyond the jurisdiction of the NLRB.
519 F. Supp. at 558 (footnote omitted) (rejecting application of res judicata); see also Colindres v. Quietflex Mfg., 235 F.R.D. 347, 361 (S.D. Tex. 2006) ("Claim preclusion does not bar the plaintiffs' retaliation claims in this case. . . . The NLRB decision dealt with an alleged violation of the National Labor Relations Act, not with an alleged violation of Title VII's antiretaliation provision.").
Despite these cases, the detailed fact finding by the PERC hearing examiner in Jordan's hearing regarding events that also served as the basis for her WLAD claims does not support our following federal cases involving Title VII claims. See Christensen, 152 Wn.2d at 306 (stating that collateral estoppel applies to "determinative facts"). The hearing examiner's factual recitation and opinion and that Jordan had a six-day trial to fully present her facts also demonstrate that denying her an opportunity to retry these facts before another tribunal is not unfair. Therefore, we decline to do so. As no legal injustice would occur, the trial court did not err in applying collateral estoppel to bar relitigation of her claims.
We also note that the PERC process involves the same standards as those used in discrimination cases in state courts. "The [PERC] decides discrimination allegations under standards drawn from decisions of the Supreme Court of the State of Washington." CP at 68.
Negligent Infliction of Emotional Distress
Jordan next contends that the trial court erred in dismissing her negligent infliction of emotional distress claims. She argues that the trial court misinterpreted Snyder v. Medical Service Corp., 145 Wn.2d 233, 243, 35 P.3d 1158 (2001), which notes, "There is no duty for an employer to provide employees with a stress free workplace." She claims that although Snyder stated that in many employment cases, a negligent infliction of emotional distress claim cannot be pursued, "it carefully carved out from that holding those situations where, as here, the defendant's conduct creates foreseeable danger to the recipient." Appellant's Br. at 16-17.
Snyder disfavors negligent infliction of emotional distress claims in an employment context: "`[A]bsent a statutory or public policy mandate, employers do not owe employees a duty to use reasonable care to avoid the inadvertent infliction of emotional distress when responding to workplace disputes.'" 145 Wn.2d at 244 (quoting Bishop v. State, 77 Wn. App. 288, 234-35, 889 P.2d 959 (1995)). Jordan's brief neither identifies the particular "foreseeable danger" LCCC's actions created nor does she identify a special "statutory or public policy mandate" that would cause Snyder not to apply. 145 Wn.2d at 244. The trial court properly dismissed the claims.
Ongoing Nature of Allegations and Summary Judgment of Dismissal
Jordan further contends that the trial court erred in failing to rule that her complaint included claims of ongoing age discrimination not affected by collateral estoppel. In essence, she asserts that had the trial court properly ruled, it would not have granted LCCC's motion for summary judgment dismissing her claims.
CR 15(d) provides that a plaintiff may seek permission to submit a supplemental pleading "setting forth transactions or occurrences or events which have happened since the date of the pleading sought to be supplemented." Allowing a party to file supplemental pleading lies within the trial court's discretion, and we will not disturb its decision absent an abuse of that discretion. Herron v. Tribune Pub. Co., 108 Wn.2d 162, 168-69, 736 P.2d 249 (1987). A trial court abuses its discretion when it bases its decision on untenable or unreasonable grounds. Havens v. C D Plastics, Inc., 124 Wn.2d 158, 168, 876 P.2d 435 (1994).
The trial court did not abuse its broad discretion here in deciding that allowing Jordan to add facts set forth in her September 2007 supplemental declaration would prejudice LCCC. Such prejudice to the opposing party provides a ground for denying supplemental pleadings. Herron, 108 Wn.2d at 165. Jordan's argument fails.
LCCC argued, and the trial court accepted, that discovery in the original complaint neared completion and it would be difficult to re-interview witnesses regarding the new factual allegations. It noted that all parties and the court had previously proceeded toward a February 2008 trial date on the assumption that the facts in the 2005 complaint were defined by the scope of the facts presented in the PERC proceeding.
Finally, Jordan contends that the trial court erred in dismissing her lawsuit. In deciding this issue, we review the claims that remain after our decision that the trial court properly: applied collateral estoppel, dismissed her negligent infliction of emotional distress claims, and denied her request to amend the pleadings.
In reviewing a summary judgment, we sit in the same position as the trial court, reviewing its decision de novo. Cerrillo v. Esparza, 158 Wn.2d 194, 199, 142 P.3d 155 (2006). A trial court properly grants a motion for summary judgment when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). No issues of material fact remained after the trial court's rulings. It did not err in ordering summary judgment dismissing Jordan's lawsuit.
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. QUINN-BRINTNALL, J. and PENOYAR, A.C.J., concur.