September 23, 2008.
Appeal from a judgment of the Superior Court for Clark County, No. 03-2-03086-8, Roger A. Bennett, J., entered June 17, 2005.
In our prior decision in this case, we determined that all of the alleged claims brought by school district employees against their supervisors and employer were barred by the plaintiffs' failure to first file a notice of claim under former RCW 4.96.020(4) (2001). Our Supreme Court reversed that determination and remanded the case to us to address any other unresolved grounds for dismissal that were presented on appeal. We now consider those issues, affirm in part, reverse in part, and remand for further proceedings.
Former RCW 4.96.020(4) states in relevant part, "No action shall be commenced against any local governmental entity for damages arising out of tortious conduct until sixty days have elapsed after the claim has first been presented to and filed with the governing body thereof."
These facts are taken in part from this court's and the Supreme Court's opinions in Wright v. Terrell, 135 Wn. App. 722, 725-27, 145 P.3d 1230 (2006), rev'd, 162 Wn.2d 192, 194-95, 170 P.3d 570 (2007).
On June 12, 2003, Charlotte Wright and the Public School Employees of Evergreen (the union) filed a lawsuit against Wright's supervisor, Jim Terrell, Terrell's supervisor, Marcia Fromhold, and Wright's employer, the Evergreen School District, asserting seven claims. The suit concerned Terrell's alleged verbal abuse and bullying, of the employees he supervised. Wright asserted claims against Terrell for negligent infliction of emotional distress, intentional infliction of emotional distress, and a federal civil rights violation. The union and Wright also claimed Terrell interfered with the collective bargaining rights of employees in violation of RCW 41.56.140(1). Also, Wright asserted a negligent supervision claim against Fromhold. Wright and the union further claimed that the district failed to disclose information relating to Terrell's personnel file and that the district violated the public disclosure act. Two months after filing the initial complaint, Wright and the union filed an amended complaint, adding David Larson as a plaintiff and adding two claims against Terrell individually: negligent and intentional infliction of emotional distress upon Larson. Plaintiffs also filed a motion to compel discovery of the district's records relating to Terrell. See Wright v. Terrell, 162 Wn.2d 192, 194, 170 P.3d 570 (2007).
Wright alleged that Terrell had bullied her by requiring her to inform on co-workers, by Terrell's commenting about his sex life, by telling Wright that she needed a man, by leering at Wright's breasts and buttocks, by critiquing her appearance, and by standing very close to Wright when addressing her. Terrell also showed open animosity toward Wright, yelling criticism at her, berating her as though she were a misbehaving child, and assigning Wright heavy manual labor tasks. Terrell allegedly criticized Wright for taking earned leave to visit her dying mother and unnecessarily delayed authorization of Wright's vacation request. Wright also alleged that she suffered physical symptoms resulting from Terrell's conduct including headaches, nausea, insomnia, depression, and spontaneous episodes of crying. Wright contends that her physician diagnosed her as having post-traumatic stress syndrome and advised her to take a leave of absence from her job to get away from Terrell.
Larson alleged that Terrell had repeatedly screamed at him and addressed him in a demeaning manner. Terrell set unachievable production goals and then criticized Larson for not reaching them. Larson alleged physical symptoms resulting from Terrell's bullying including anxiety, shaking, sleeplessness, and depression. Larson began to vomit regularly before work and was advised by his physician to resign from his job.
Defendants moved to dismiss, arguing that plaintiffs were required (but failed) to file their tort claims first with the district pursuant to former RCW 4.96.020. The trial court agreed and dismissed the tort claims and civil rights claims against Terrell and Fromhold. After granting the motion to dismiss, the trial court denied plaintiffs' motion to compel discovery, concluding that it was not relevant to the remaining claims. The district then moved to dismiss the public disclosure act claims. The trial court concluded there was sufficient evidence to support those claims, but also issued a supplemental ruling regarding the claims it had earlier dismissed, concluding that there was insufficient evidence to support those claims and that Wright and Larson should have first pursued those claims through their collective bargaining agreement. Plaintiffs agreed to voluntarily dismiss the public disclosure act claims against the district, and then sought direct review in the Supreme Court, which transferred the appeal to this court. See Wright, 162 Wn.2d at 194-95.
This court affirmed the trial court, holding that it had properly dismissed plaintiffs' claims against Terrell and Fromhold for failure to comply with the claim filing statute, former RCW 4.96.020. This court recognized that in an otherwise divided decision five justices of the Supreme Court in Bosteder v. City of Renton, 155 Wn.2d 18, 117 P.3d 316 (2005), superseded by statute as stated in Wright, 162 Wn.2d at 195 n. 1, seemed to agree that former RCW 4.96.020 does not apply to claims against individual government employees, but nonetheless reasoned that "a plurality opinion has only limited precedential value and is not binding on the courts." Wright v. Terrell, 135 Wn. App. 722, 735, 145 P.3d 1230 (2006), rev'd, 162 Wn.2d 192, 196, 170 P.3d 570 (2007). Plaintiffs then sought review in the Supreme Court, which was granted.
Wright v. Terrell, No. 79542-8
In a per curiam decision, the Supreme Court clarified that a majority (five justices) of the Bosteder court concluded that former RCW 4.96.020 does not apply to claims against individuals. Accordingly, on that point, Bosteder is not a plurality decision. See Wright, 162 Wn.2d at 195. Thus, the Supreme Court concluded that the trial court erred in dismissing the claims against Terrell and Fromhold based on former RCW 4.96.020, and that this court erred in holding that Bosteder is not binding on the issue of the former statute's applicability to suits against individual employees. See Wright, 162 Wn.2d at 195-96.
In response to Bosteder, the legislature amended former RCW 4.96.020, effective June 7, 2006, to provide that claims against individual government employees are subject to the notice of claims statute. See Laws of 2006, ch. 82, § 3. That amendment has no application here.
The Supreme Court further held that this court erred in holding that former RCW 4.96.020 applies to federal civil rights claims under 42 U.S.C. § 1983, and that this court wrongly concluded that since petitioners' unfair labor practice claim sounded in tort, that claim was also subject to former RCW 4.96.020. The Supreme Court held that unfair labor practice claims under chapter 41.56 RCW are not tort claims for damages and are thus not subject to the claims filing statute. See Wright, 162 Wn.2d at 196. Accordingly, the court reversed this court's decision that affirmed the dismissal of the plaintiffs' claims. The court also remanded stating: "Since other grounds for affirming the dismissal of plaintiffs' claims were raised on appeal, we `remand the case to the Court of Appeals to decide those issues.' RAP 13.7(b)." Wright, 162 Wn.2d at 196.
We now address our Supreme Court's directive on remand.
As a threshold matter we must identify what grounds for affirming the dismissal of plaintiffs' claims were argued on appeal other than noncompliance with the claim filing statute; which of these additional grounds were addressed by this court's prior opinion; and which ones remain to be addressed in complying with the Supreme Court's directive on remand. On appeal, appellants (Wright, Larson, and the union) alleged that the trial court erred: (1) in ruling that a notice of claim pursuant to RCW 4.96.020 must first be filed before an employee may bring suit against her supervisor for negligence, intentional tort, or a federal civil rights violation; (2) in ruling that Wright and Larson should have processed their tort and civil rights claims as contract grievances pursuant to the grievance procedure of the collective bargaining agreement between the union and the school district; (3) in ruling that Wright and Larson failed to allege facts sufficient to support submission of their tort claims of outrage and negligence to a jury; (4) in ruling that Wright and Larson had failed to allege facts sufficient to support their claims that Terrell had violated their federally protected rights ( 42 U.S.C. § 1983 claims); (5) in dismissing the union's unfair labor practices charges on the basis of a failure to exhaust administrative remedies; and (6) in denying plaintiffs' motion to compel discovery regarding the district's investigation into Terrell's conduct on an unrelated matter.
In response, Terrell argued that the trial court properly dismissed the appellants' claims because, in addition to noncompliance with the notice of claim statute, (1) Wright and Larson failed to allege facts sufficient to establish the torts of outrage or negligent infliction of emotional distress; (2) that Wright's and Larson's claims under 42 U.S.C. § 1983 are without merit because they failed to allege facts sufficient to establish that Terrell violated any federally protected right; and (3) that the trial court properly denied appellants' motion to compel discovery regarding an unrelated investigation.
Fromhold and the school district responded additionally that (1) dismissal of the appellants' claims was proper because appellants had failed to exhaust administrative remedies under the collective bargaining agreement, which applied to all of Wright and Larson's claims and which provided the exclusive remedy; (2) given the failure of appellant's other (tort) claims, Fromhold could not be liable for negligent supervision of Terrell; and (3) dismissal of appellants' unfair labor practices claims was proper because appellants failed to exhaust administrative remedies.
As noted, this court held that because Wright and Larson failed to file a notice of claim, all of their claims were barred. Wright, 135 Wn. App. at 724. This court further held that none of the allegations rose to the level of the intentional tort of outrage, the trial court did not abuse its discretion regarding discovery, and that Wright and Larson were not required to exhaust their contractual or administrative remedies before proceeding in superior court regarding their labor dispute. Wright, 135 Wn. App. at 724. See also Wright, 135 Wn. App. at 728-29 (trial court erred in dismissing the appellants' tort claims for failure to exhaust their contractual or administrative remedies); Wright, 135 Wn. App. at 731-32 (trial court erred in dismissing the unfair labor practices claims based on a failure to exhaust administrative remedies because the superior court had jurisdiction over these claims).
As to the tort claims, this court held that all of Terrell's conduct about which appellants complained occurred "within the scope of his duties and employment," Wright, 135 Wn. App. at 737, and that "[a]t worst, the allegations [regarding Terrell's conduct] fall within the category of mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." Wright, 135 Wn. App. at 738 (citations and internal quotations omitted). This court relied on Grimsby v. Samson, 85 Wn.2d 52, 59, 530 P.2d 291 (1975), which discussed conduct that did not amount to outrage. Accordingly, this court held that there was no basis for any outrage claim. Wright, 135 Wn. App. at 724, 738.
This court also held that Fromhold's conduct was likewise within the scope of her employment. Wright, 135 Wn. App. at 738.
As to the tort claims, this left only negligent infliction of emotional distress unaddressed by this court as to any alternative basis for dismissal.
As for appellants' 42 U.S.C. § 1983 claim, while this court held that it too was subject to the notice of claim statute, and thus was barred by the appellants' noncompliance therewith, the court determined that appellants' claim would fail in any event, stating: "And regardless, the appellants failed to identify a violation of an existing constitutional right, much less even identify an existing constitutional right." Wright, 135 Wn. App. at 739 n. 15 (citing Collins v. City of Harker Heights, Tex., 503 U.S. 115, 126, 112 S. Ct. 1061, 117 L. Ed. 2d 261 (1992); and Gomez v. Toledo, 446 U.S. 635, 640, 100 S. Ct. 1920, 64 L. Ed. 2d 572 (1980)). Accordingly, we determined that appellants' § 1983 claim failed on grounds other than noncompliance with the notice of claims statute. Thus, the trial court's dismissal of appellants' claim based on alleged violations of 42 U.S.C. § 1983 was proper.
And finally, this court held that the trial court did not err in denying the appellants' motion for discovery. Wright, 135 Wn. App. at 742.
As can be seen, this court addressed all of the appellants' contentions as argued on appeal, as well as all of the respondents' alternative grounds for affirming the trial court's dismissal of the appellants' claims except the claim that Terrell's conduct toward Wright and Larson amounted to negligent infliction of emotional distress. Thus, in compliance with the Supreme Court's directive, we now address the viability of the plaintiffs' negligent infliction of emotional distress claims.
Negligent Infliction of Emotional Distress
The trial court ruled that the plaintiffs' claims for negligent infliction of emotional distress failed as a matter of law. We agree. To prove this cause of action, a plaintiff must show (1) that her employer's negligent acts injured her, (2) the acts were not a workplace personality dispute or employee discipline, (3) the injury is not covered by the Industrial Insurance Act, and (4) the dominant feature of the negligence claim was the emotional injury. See Snyder v. Med. Serv. Corp. of E. Wash., 98 Wn. App. 315, 323, 988 P.2d 1023 (1999), aff'd, 145 Wn.2d 233 (2001) (citing Chea v. Men's Wearhouse, Inc., 85 Wn. App. 405, 412-13, 932 P.2d 1261 (1997), review denied, 134 Wn.2d 1002 (1998)). Here, all of the acts complained of occurred at the worksite and most were related to a workplace personality dispute or employee discipline. The allegedly relentless and harsh criticism about which Wright and Larson primarily complained was Terrell's response to the employees' job performance. The remaining acts — such as off color remarks or Terrell's alleged leering at Wright's breasts — are boorish but not actionable. See Snyder, 145 Wn. 2d at 245 (courts cannot guarantee a stress-free workplace); see Snyder, 145 Wn. 2d at 253 (Ireland, J. dissenting) (merely rude or boorish behavior does not give rise to this cause of action). Thus, we affirm the dismissal of the claims for negligent infliction of emotional distress because they fail as a matter of law.
There is no claim of sexual harassment.
Moreover, because there are no viable tort claims, there is no viable claim against Fromhold for negligent supervision of Terrell premised on Terrell's tortious conduct. See Herried v. Pierce County Pub. Transp. Benefit Auth. Corp., 90 Wn. App. 468, 475, 957 P.2d 767, review denied, 136 Wn.2d 1005 (1998). The trial court correctly so ruled, and we affirm that determination.
This leaves as the only surviving claims the plaintiffs' two "unfair labor practice claims" asserted by the union against the district. See Wright, 135 Wn. App. at 729. See CP at 22 (6th and 7th causes of action alleging violations of RCW 41.56.140(1) and (4), respectively). As noted, we previously held that the trial court erred in dismissing these claims as barred for failure to exhaust administrative remedies. Wright, 135 Wn. App. at 729, 731-32. Accordingly, we now reverse and remand for further proceedings on the unfair labor practice claims (Nos. 6 and 7 of the amended complaint).
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.