Opinion
No. 35130-7-II.
April 8, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-2-05146-4, Thomas Felnagle, J., entered July 7, 2006.
Affirmed in part, reversed in part, and remanded by unpublished opinion per Quinn-Brintnall, J., concurred in by Armstrong and Hunt, JJ.
Jane Doe III, a.k.a. Jackie Delgado, appeals from a summary judgment order dismissing her lawsuit against Western State Hospital (WSH), the Department of Social and Health Services (DSHS), and the local Washington Federation of State Employees (WFSE) union, in part because the statute of limitations had run. Based on acts that occurred between 1989 and 2003, Delgado sued, alleging 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, (6) invasion of privacy, and (7) aiding and abetting. We affirm that portion of the summary judgment dismissing the retaliation, outrage, and the invasion of privacy claims. But we reverse that portion of the summary judgment dismissing the hostile work place discrimination claim and the negligent hiring and/or retention claim, and remand for further proceedings consistent with this opinion.
FACTS
In 1988, DSHS hired Green as a mental health technician at WSH. 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 WFSE union. Jane Doe I v. Dep't of Soc. Health Servs., noted at 138 Wn. App. 1049, 2007 Wash. App. LEXIS 1188 at *2 (2007). In 1990, Green became one of several union shop stewards, responsible for advising and counseling fellow union members complaining about working conditions. Jane Doe I, 2007 Wash. App. LEXIS 1188 at *2. In 1992, Green became the chief union shop steward. Jane Doe I, 2007 Wash. App. LEXIS 1188 at *2. And in 2001, after holding several other high ranking union positions, Green became president of the local union.
In 2001, WSH employee Kathleen Lizee sued Green, the State of Washington, and other defendants, alleging claims of sexual harassment, retaliation, and negligent supervision. Trial commenced in 2003 in Pierce County Superior Court. After Lizee presented testimony from 17 different witnesses, the parties agreed to a settlement that precluded the remainder of the trial. Following the settlement, WSH placed Green on administrative leave.
In 2003, as part of another related 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." Clerk's Papers (CP) at 559.
By the end of the investigations, Salisbury Consulting had spent over 1,200 hours interviewing 97 witnesses and reviewing several boxes of documents. Fifteen of these witnesses, including Delgado, 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 investigations found that Green had engaged in this behavior since 1988, when he was hired. The investigations also 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, Salisbury Consulting's investigation concluded that the allegations of sexual abuse and retaliation were substantiated.
Following the results of the investigations, WSH fired Green. In the letter terminating Green's employment, 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 769. 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 772.
A day after his termination became effective, Green sued (1) the complaining witnesses, (2) the State of Washington and its officials responsible for his termination, and (3) Salisbury Consulting. Green's complaint alleged many different claims. The federal court granted the defendants' summary judgment motions and dismissed all his claims with prejudice.
In 2004, Green also filed a lawsuit against Delgado 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, Delgado suffered in silence. She did not bring forward a complaint until 2005, when she alleged the following seven 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, (6) invasion of privacy, and (7) aiding and abetting.
WSH hired Delgado as a mental health technician in 1988. When Delgado first met Green, she found him to be "helpful, concerned[,] and likeable." CP at 441. But within a few months, Green "began taking advantage of [Delgado]." CP at 441. Then, in 1989, while Delgado and Green were taking out the trash during a night shift, Green kissed her. Delgado stated that she "was totally caught off guard. I was kind of embarrassed." CP at 88.
Delgado also complained of several other incidents involving Green, including the following: (1) in an elevator, Green stood "very, very, very, very close" to Delgado and kissed her (CP at 88); (2) in a storage room, Green tried to kiss Delgado and made remarks about her mother, who sometimes was a patient at WSH; and (3) during a break, Green complimented Delgado on her hairstyle, stood very close to her, and "brushed over" her breasts. CP at 89. On another occasion, when Delgado and Green were in the union office at WSH, Green "touched [her], and he kissed [her], and told [her] to be quiet so security wouldn't hear [them] in the office." CP at 89.
Delgado felt powerless. She was afraid that if she rebuffed his advances she would lose her job and that Green would hurt her and her family. Delgado said, "I never knew when this man was going to do something to me or when he wasn't going to do something to me. All I know is that when he called I went." CP at 89.
Delgado explained that she and Green would call each other on the telephone and engage in sexual conversations. On at least one occasion, Delgado's husband "walked in" on her as she was masturbating and talking to Green on the telephone. CP at 91. Delgado also explained that Green had persuaded her to engage in sexual activity with him and his wife.
Sometime around 1989 or 1990, Green "made his intentions known" that "he wanted to be nasty." CP at 347. When Delgado told him that he "was sick," Green threatened to kill her. CP at 347. Later, in 1992, Delgado and Green were driving separate vehicles to her apartment, when Green suddenly pulled his vehicle over to the side of the road. Delgado pulled her vehicle over to the side of the road as well, thinking that "he wanted to say something to [her]." CP at 90. Green got out of his car, casually walked back to Delgado's car, and pointed a gun at her head. Green pulled the gun's trigger, telling Delgado, "See how easy a person can die? Do you really want to die?" CP at 359. The gun was not loaded. Around this same time, Green also told Delgado stories of how he had decapitated his sister's boyfriend in Philadelphia.
From 1994 until 1999, Delgado intentionally gained a large amount of weight, hoping that she would "get ugly so [Green] wouldn't want to bother [her] anymore." CP at 90. In fact, during this period of time, Delgado stated that Green did not "bother" her. CP at 90. She later clarified her statement, explaining, "There were occasions, but they were just very — they weren't very often at all." CP at 102.
Delgado then lost weight. In 2002, Delgado and Green attended a union meeting in Olympia. Green called Delgado and told her to come to his hotel room. Delgado did not want to go to his hotel room and delayed. Eventually, though, Delgado went to Green's hotel room, where Green commented about her late arrival. Green then offered her tequila and "wanted to do sexual things and stuff like that." CP at 93. Delgado admitted that she reluctantly obliged, saying, "What else could I do?" CP at 341.
In late 2002, Green called Delgado into his office at WSH. Green did not tell Delgado why he wanted to meet with her. Delgado went to his office. Once there, Green "wanted to play." CP at 343. He pulled up Delgado's shirt and sucked on her breasts. Delgado "[s]tood there and gritted [her] teeth." CP at 343.
In 2003, Delgado learned that union management had negotiated a new vacation policy that would not take into account seniority. Delgado was "irate." CP at 93. At a union meeting, she expressed "[her] feelings" about the new vacation policy. CP at 94. A few days after this meeting, she ran into Green at WSH. She told him, "What I was saying I was saying to the president of the union. I was not saying it to you personally." CP at 94. In response, Green gave her "that dead stare of his and told [her] that he took it personal." CP at 94. Delgado understood Green's reaction to be a threat against her. Delgado outlined these events in her 2005 lawsuit.
Green, DSHS, WSH, and the WFSE union moved for summary judgment arguing, in part, that the statute of limitations barred Delgado's suit. At the summary judgment hearing, the trial court dismissed all of Delgado's claims, finding either that they were barred by the statute of limitations or that Delgado had failed to outline evidence supporting the elements essential to her case. Delgado filed a motion for reconsideration, which the trial court denied. Delgado appeals.
ANALYSIS
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, 860, 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). Our 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 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 supporting each element essential to her case. See Hiatt, 120 Wn.2d at 66. In presenting these specific facts, 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).
Hostile Work Environment
Washington's Law Against Discrimination (WLAD), chapter 49.60 RCW, prohibits employment discrimination based on sex. Former RCW 49.60.010, .030 (2005); former RCW 49.60.180 (1997). Former 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 former 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 claim. Antonius v. King County, 153 Wn.2d 256, 261, 103 P.3d 729 (2004). Here, because Green was not Delgado's immediate supervisor with the power to hire and fire her, Delgado'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, Delgado's claim is a hostile work environment case, a situation wherein the employee seeks to hold the employer and/or union 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; see also former RCW 49.60.190(3) (1997) (WLAD also applies to labor unions).
WLAD does not set out a 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 begins to run from the date of the alleged wrongful act. 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 lawsuit for that discrete act is barred, even if that act relates to others timely alleged in the charges filed. 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.
Hostile work environment claims, however, "'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 composed 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, this means that it does not matter if some of the acts alleged to have created a hostile work environment fall outside the statute of limitations period. Antonius, 153 Wn.2d at 264 (quoting Morgan, 536 U.S. at 117). Such claims are based on the cumulative effect of individual acts. Antonius, 153 Wn.2d at 270.
Our Supreme Court has declined to adopt a discovery rule of accrual for hostile work environment claims. Antonius, 153 Wn.2d at 270.
A. Statute of Limitations
First, Delgado claims that the trial court erred when it summarily dismissed her hostile work environment claim on the ground that the statute of limitations had expired. She argues that her hostile work environment claim is composed of a series of separate acts that collectively constituted one unlawful employment practice from 1989 until 2003, when Green was fired. But WSH argues that an eight-year gap in the alleged harassment between 1994 and 2002 established that Green's sexual harassment is not part of the same hostile work environment. We agree with Delgado that the statute of limitations does not bar her hostile work environment claim and the trial court erred in granting summary judgment on this basis.
As an initial matter, the trial court applied the wrong legal standard to determine whether summary judgment was appropriate in this case. Despite its reference to Antonius, the trial court assessed the summary judgment motions under the "continuing violation doctrine" analysis. But in Antonius, our Supreme Court specifically rejected the "continuing violation doctrine" analysis and instead accepted the Morgan analysis. Antonius, 153 Wn.2d at 268-69.
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.'" Antonius, 153 Wn.2d at 271 (quoting Morgan, 536 U.S. at 120) (emphasis added). The acts must have some relationship to each other to constitute part of the same hostile work environment claim. Antonius, 153 Wn.2d at 271. 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). Simply put, if even a small portion of the actionable hostile work environment practice occurred within the statute of limitations period, then the trial court should consider it as a unified whole. Shields v. Fort James Corp., 305 F.3d 1280, 1282 (11th Cir. 2002).
Here, in response to the summary judgment motions, Delgado showed that Green (1) had sexually harassed her between 1989 and 1994, (2) threatened to kill her on at least two different occasions between 1989 and 1992, and (3) had sexually harassed her in 2002. Delgado also showed that she was continuously afraid of Green and that, between 1994 and 1999, she "went so far as to cut [her] hair, gain a great deal of weight, avoid large portions of the hospital grounds [where she might run into Green] and dress poorly in order to physically repel . . . Green." CP at 443. During the time Delgado was deliberately making herself unattractive, Green harassed her little, if at all.
Although the trial court placed great emphasis on the "big problem" of the "eight-year hiatus of sexual contact," and ultimately concluded that the acts on which Delgado's claim depended were "too far removed in time," Report of Proceedings (June 2, 2006) at 59, "a gap, 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." Antonius, 153 Wn.2d at 272.
Here, Green's acts involved (1) the same victim, (2) the same relationship, and (3) the same type of harassment. And even though Green "actually" harassed Delgado little, if at all, between 1994 and 1999, it is clear from the record that he continued to "control" her during this time. Out of fear of Green, Delgado was forced to restrict her movement at WSH to avoid coming into contact with him. She hid away from further harassment by changing her physical appearance and becoming unattractive to him. This tactic not only jeopardized her health, but deflected the attention of men in whom she may have been interested, as well as keeping Green at bay.
In other words, there is a genuine issue of material fact as to whether Delgado continued to bear the burden of Green's harassment between 1994 and 1999. There is a genuine issue of material fact as to whether Green's acts from 1989 to 2002 are part of the same actionable hostile work environment practice. And there is a genuine issue of material fact as to whether any of Green's harassing acts fall within the statutory time period under the Morgan analysis. Thus, the trial court erred in summarily dismissing Delgado's hostile work environment claim on the ground that the statute of limitations had expired.
On remand, WSH may assert any equitable defenses it may have, as the Supreme Court explained in Morgan. Antonius, 153 Wn.2d at 271.
B. Knowledge of Harassment
Next, Delgado claims that the trial court erred when it summarily dismissed her hostile work environment claim because she had not shown that WSH and/or the union (1) authorized, knew, or should have known of the harassment; and (2) failed to take reasonably prompt and adequate corrective action. Again, we agree with Delgado that genuine issues of material fact exist as to whether Green's harassment can be imputed to WSH and the union.
To establish a hostile work environment claim, the plaintiff must prove that (1) the harassment was unwelcome, (2) the harassment was because of sex, (3) the harassment affected the terms or conditions of employment, and (4) the harassment was imputed to the employer. Glasgow, 103 Wn.2d at 406-07. Taking the facts in the light most favorable to Delgado, as we must, she clearly presented evidence that Green's acts of harassment (1) were unwelcome, (2) because of sex, and (3) affected the terms or conditions of her employment. But the key issue here is whether there is a genuine issue of material fact that the alleged harassment can be imputed to WSH and the union.
There is no doubt that Green's harassment was sufficiently pervasive as to alter the conditions of Delgado's employment and create an abusive working environment for her.
In Glasgow, our Supreme Court held that where an owner, manager, partner, or corporate officer personally participates in the harassment, this fourth element is satisfied by proof of the harasser's management status. 103 Wn.2d at 407. But where the person harassing the employee is not in management, the employer is not held vicariously liable for the hostile work environment unless the plaintiff shows (1) that the person committing the harassment is an employee, and (2) that the employer authorized, knew, or should have known of the harassment and failed to take reasonably prompt and adequate corrective action. DeWater v. State, 130 Wn.2d 128, 135, 921 P.2d 1059 (1996); Glasgow, 103 Wn.2d at 407. Our Supreme Court continued:
Delgado does not allege that Green was an owner, manager, partner, or corporate officer. And Delgado has presented no evidence that Green was a supervisor.
This may be shown by proving (a) that complaints were made to the employer through higher managerial or supervisory personnel or by proving such a pervasiveness of sexual harassment at the workplace as to create an inference of the employer's knowledge or constructive knowledge of it and (b) that the employer's remedial action was not of such nature as to have been reasonably calculated to end the harassment.
Glasgow, 103 Wn.2d at 407. Finally, we agree that "[a]n employer's knowledge that a male worker has previously harassed female employees other than the plaintiff will often prove highly relevant in deciding whether the employer should have anticipated that the plaintiff too would become a victim of the male employee's harassing conduct." Paroline v. Unisys Corp., 879 F.2d 100, 107 (4th Cir. 1989) (emphasis added), vacated in part on other grounds, 900 F.2d 27 (1990).
Delgado relies almost exclusively on the Salisbury Consulting investigation to show that there is a genuine issue of fact as to whether WSH and the union knew or should have known about Green's harassment and failed to take reasonably prompt and adequate corrective action. WSH and the union challenge the admissibility of this document, but the document is unquestionably relevant to Delgado's hostile work environment claim and, as an admission by a party opponent, is not hearsay. Thus, WSH and the union's hearsay challenge fails.
ER 801(d) provides that "[a] statement is not hearsay if . . . (2) [it] is offered against a party and is . . . (ii) a statement of which the party has manifested an adoption or belief in its truth." In its letter terminating Green's employment, WSH stated the following:
The incidents upon which this action is based were reviewed pursuant to Personnel Policy 545. Based on the egregious nature of the charges, the Conduct Investigation Report (CIR) was waived, and the Salisbury Consulting Report takes its place. A copy of the investigation conducted by Salisbury Consulting was previously provided to you and is incorporated by this reference and attached as Attachment 1.
CP at 769. This language manifests WSH's adoption and belief in the truth of Salisbury's report. Compare with Bertsch v. Brewer, 97 Wn.2d 83, 86, 640 P.2d 711 (1982) (although party transmitted results of one clinic's personality test to another doctor, there is no evidence that she had read the results; she was merely a message carrier). As such, Salisbury's report is a party admission under ER 801(d)(2)(ii) and, therefore, is not hearsay.
Relying on the results of the Salisbury Consulting investigation, Delgado argues that WSH should have known about Green's harassment. Among other things, she emphasizes the investigation's findings that (1) " [p]eople are not held accountable for lying and trusting someone is the exception, not the norm," and (2) " [c]omplaints about management and the union are often either ignored or punished." Br. of Appellant at 31 (quoting CP at 509). In fact, Salisbury Consulting found that there was a conflict in the evidence as to whether a supervisor knew of Green's sexually harassing behavior as early as 1988, yet failed to take any reasonably prompt and adequate corrective action. Moreover, Salisbury Consulting found:
One particular problem noted in the investigation was that Mr. Green, following the allegations in the lawsuit, has received several promotions and advancements, to the point where he now holds a position of influence and power in the organization. . . . No one can adequately explain how he was able to obtain such promotions in light of the serious allegations leveled against him. . . . This dismissal of the allegations as though the behavior never occurred has led to Mr. Green rising to a place in the organization where he has the ability to inflict more psychological damage, because of the perception of the victims that he has the power to harm them. Thus, the victims' perception that Mr. Green is a "Teflon Man" protected by management, or untouchable[,] has been reinforced by management's response following the complaint.
CP at 500-01.
At the very least, this evidence shows that there is a genuine issue of material fact as to whether WSH should have known of Green's sexual harassment and failed to take reasonably prompt and adequate corrective action. By continuing to promote Green in the face of repeated allegations of harassment and abuse of authority, WSH gave Green greater power and increased his ability to threaten and intimidate others at WSH.
Delgado also points to Jose Aguirre's 2001 declaration to show that there is a genuine issue of fact as to whether the union should have known about Green's harassment. In his declaration, Aguirre declared that he
It appears that Aguirre's declaration was in response to Lizee's 2001 lawsuit.
wrote a letter to the [union's] Executive Board in 1997, which at that time consisted of Elijah Sacks, Bob Lenigan, Barrette Green, and Carol Dotlich, who was a supervisor for WSH. . . . In the letter, I specifically mentioned that Barrette Green sexually harassed Ms. Lastrapes and Ms. Risse. I indicated that some remedial action must be taken against Barrette Green and demanded a response to my letter. I never received a response.
CP at 846. In her 2002 deposition, however, Dotlich denied receiving any complaints from Aguirre regarding Green's sexual harassment of union members.
This evidence shows that there is a genuine issue of material fact as to whether the union knew or should have known of Green's sexual harassment and failed to take reasonably prompt and adequate corrective action.
Therefore, as there are genuine issues of material fact as to whether WSH or the union had actual knowledge or constructive knowledge of Green's sexual harassment and whether WSH or the union failed to take reasonably prompt and adequate corrective action, the trial court erred in summarily dismissing Delgado's claim. Negligent Hiring and/or Supervision
Delgado claims that the trial court erred when it dismissed her negligent hiring and/or supervision claim. She argues that "there is certainly a jury question" as to whether WSH and the union negligently hired and supervised Green. Br. of Appellant at 42. We agree.
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 Delgado'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. In re Estates of Hibbard, 118 Wn.2d 737, 744-45, 826 P.2d 690 (1992).
Here, Delgado showed that Green (1) had sexually harassed her between 1989 and 1994, (2) threatened to kill her on at least two different occasions between 1989 and 1992, and (3) had sexually harassed her in 2002. Delgado also showed that she was afraid of Green and that, between 1994 and 1999, she "went so far as to cut [her] hair, gain a great deal of weight, avoid large portions of the hospital grounds and dress poorly in order to physically repel . . . Green." CP at 443. In other words, Delgado showed that she had been injured by a pattern of negligent and/or wrongful acts of a WSH employee, namely Green, from 1989 to 2002.
Moreover, with both the results of the Salisbury Consulting investigations and Aguirre's declaration, Delgado has responded to WSH and the union's summary judgment requests with some showing that related evidence was available which would justify a trial on the issue of her negligent hiring and/or supervision claim. See Reed v. Streib, 65 Wn.2d 700, 707, 399 P.2d 338 (1965).
Thus, the trial court erred in summarily dismissing Delgado's negligent hiring and/or supervision claim. Retaliation Delgado claims that the trial court erred when it dismissed her retaliation claim. 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, Delgado 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, 832 P.2d 1378 (1992).
Delgado claims that several 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 42. She further claims that "it was a well-known fact that . . . Green established a pattern of retaliation against women who he knew participated in the Lizee lawsuit." Br. of Appellant at 43.
But even taking the facts in the light most favorable to her, Delgado 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. Thus, the trial court did not err in summarily dismissing her retaliation claim because Delgado did not set forth facts from which the trier of fact could find that she was retaliated against. Outrage
Delgado claims that the trial court erred when it dismissed her outrage claim. She argues that WSH's and the union's conduct in "fostering this working environment" is actionable under a common law outrage claim. Br. of Appellant at 45. We disagree.
To establish a common law outrage claim, Delgado 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).
A. Acts Before 2002
For purposes of a common law outrage claim, 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, the plaintiff's cause of action accrues when the plaintiff suffers some form of injury or damage. Hibbard, 118 Wn.2d at 744.
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, Delgado's outrage claim for the acts before 2002 does not fall within either category. None of the defendants in this case concealed any material facts from Delgado, thereby depriving her from learning the factual elements of her cause of action. And the nature of Delgado's alleged injury did not make it extremely difficult or impossible for her to learn the factual elements of her cause of action.
Therefore, because the nature of Delgado'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 for the acts before 2002 is barred by the applicable statute of limitations, and the trial court did not err in summarily dismissing this claim. See RCW 4.16.080(2), .100.
B. Acts After 2002
Our Supreme Court has recognized that "[t]he relationship between the parties is a significant factor in determining whether liability should be imposed." Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735, 741, 565 P.2d 1173 (1977). Thus, "once an employee's underlying tort is established, the employer will be held vicariously liable if 'the employee was acting within the scope of his employment.'" Robel v. Roundup Corp., 148 Wn.2d 35, 52-53, 59 P.3d 611 (2002) (quoting Dickinson v. Edwards, 105 Wn.2d 457, 469, 716 P.2d 814 (1986)). But an employer can defeat a claim of vicarious liability by showing that the employee's conduct was (1) intentional or criminal and (2) outside the scope of employment. Robel, 148 Wn.2d at 53.
The proper inquiry into whether an employee's conduct is outside the scope of employment is whether the employee was fulfilling his job functions at the time he was engaged in the injurious conduct. Robel, 148 Wn.2d at 53. Our Supreme Court has stated that "where an employee's acts are directed toward personal sexual gratification, the employee's conduct falls outside the scope of his . . . employment." Robel, 148 Wn.2d at 54; see also Thompson v. Everett Clinic, 71 Wn. App. 548, 860 P.2d 1054 (1993), review denied, 123 Wn.2d 1027 (1994). In fact, "neither current Washington case law nor considerations of public policy favor the imposition of respondeat superior or strict liability for an employee's intentional sexual misconduct." C.J.C. v. Corp. of the Catholic Bishop, 138 Wn.2d 699, 718-19, 985 P.2d 262 (1999); see also Niece v. Elmview Group Home, 131 Wn.2d 39, 48, 929 P.2d 420 (1997) (holding that group home was not vicariously liable for the rape of a disabled resident by an employee); Blenheim v. Dawson Hall, Ltd., 35 Wn. App. 435, 667 P.2d 125, review denied, 100 Wn.2d 1025 (1983). But we should not read these statements too broadly. In Robel, the court also clearly held that "intentional or criminal conduct is [not] per se outside the scope of employment." 148 Wn.2d at 53.
Nevertheless, neither WSH nor the union was vicariously liable for Green's offending conduct. Green's conduct in 2002, at the hotel room and at WSH, was directed toward deriving personal sexual gratification, an exceptional circumstance that took his conduct outside the scope of his employment. Thus, for the foregoing reasons, the trial court did not err in summarily dismissing Delgado's outrage claim. Invasion of Privacy Delgado claims that the trial court erred when it dismissed her invasion of privacy claim. She argues 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. Br. of Appellant at 48. We disagree. The trial court did not err in summarily dismissing the claim because Delgado 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.
Our holding here is not intended to foreclose other bases of employer liability for the criminal conduct of employees quite apart from vicarious liability. In fact, we note that our Supreme Court has stated:
Even where an employee is acting outside the scope of employment, the relationship between employer and employee gives rise to a limited duty, owed by an employer to foreseeable victims, to prevent the tasks, premises, or instrumentalities entrusted to an employee from endangering others. This duty gives rise to causes of action for negligent hiring, retention and supervision. Liability under these theories is analytically distinct and separate from vicarious liabilit y.
Niece, 131 Wn.2d at 48.
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 (1977). 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 (1977).
Delgado argues that WSH and Salisbury Consulting promised confidentiality during its investigation. 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 858. 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 860.
Finally, in her declaration, Delgado notes that she relied on these alleged promises of confidentiality. She adds, "Had I known that my name and the information I gave to Jan Salisbury would be divulged to Barrette Green, I would not have come forward." CP at 444. She contends that the State broke promises and that "the State tricked [her] to give it information regarding . . . Green." Br. of Appellant at 48.
Although Delgado's argument regarding confidentiality has some merit, she has not shown that WSH made a public communication. Here, WSH disclosed Delgado'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 (1977). "The rule . . . gives protection only against unreasonable publicity, of a kind highly offensive to the ordinary reasonable [person]." Restatement (Second) of Torts § 652D cmt. c at 387 (1977).
Perhaps more importantly, Delgado has not shown that the matter "is not of legitimate concern to the public." Restatement (Second) of Torts § 652D at 383 (1977). And as the State notes, "this disclosure was required to further the employer's legitimate interest of eliminating improper conduct by its employees." Br. of Resp't State at 26. "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 (1977).
There are no genuine disputed issues of material fact in regard to Delgado's invasion of privacy claim, and the trial court did not err in summarily dismissing it.
Accordingly, we affirm that portion of the summary judgment dismissing the retaliation, outrage, and invasion of privacy claims. But we reverse that portion of the summary judgment dismissing the hostile work place discrimination claim and the negligent hiring and/or retention claim, and remand for further proceedings consistent with this opinion.
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, P.J., HUNT, J., concur.