Opinion
40647-1-II
01-24-2012
LEANNA SHIPP, Plaintiff/Appellant, v. MASON GENERAL HOSPITAL FOUNDATION, a Washington Corporation, doing business under Unified Business Identifier #601-336-014, and TREASURES THRIFT STORE, a commercial business venture wholly operated under the MASON GENERAL HOSPITAL FOUNDATION, Defendants/Respondents.
UNPUBLISHED OPINION
Worswick, J.
Leanna Shipp worked for the Mason General Hospital Foundation (the Foundation) as the manager of its thrift shop until the Foundation terminated her claiming she had gossiped and disobeyed instructions. Shipp sued the Foundation alleging outrage and retaliation, but the trial court granted summary judgment in favor of the Foundation. Shipp appeals, arguing that disputed facts show (1) that the manner of her termination was outrageous and (2) the Foundation terminated her in retaliation for filing a workers' compensation claim. Because Shipp did not allege facts egregious enough to establish outrage, we affirm summary judgment dismissal of the outrage claim. However, because Shipp produced evidence raising a question of material fact on the reason for her termination, we reverse and remand for further proceedings on the retaliation claim.
Because Shipp appeals an order granting the Foundation's motion for summary judgment, we portray the facts in the light most favorable to her. Jones v. State Dep't of Health, 170 Wn.2d 338, 342 n.1, 242 P.3d 825 (2010).
The Foundation is a Washington non-profit corporation that operates Treasures Thrift Stores (Treasures) as a fund raising activity. The Foundation employed Leanna Shipp as the fulltime manager of Treasures from January 2001 until it terminated her on January 21, 2004. In addition to her managerial duties at Treasures, Shipp's position required her to perform "constant and repetitive lifting, sorting, arranging, repairing, cleaning, and other hands-on work." Clerk's Papers (CP) at 70. In performing these manual duties, Shipp noticed increasing difficulty with her hands and wrist pain, which she reported to her supervisors on at least three occasions between 2001 and 2004. Based on this increased pain, in December 2003, Shipp's doctor referred her to a specialist for a nerve conduction study.
Effective January 1, 2003, Mason General Hospital transferred oversight of Treasures to the Foundation. For this reason, the Foundation cites Shipp's dates of employment as January 1, 2003 to January 21, 2004.
On January 16, 2004, Shipp met with her then-supervisor Sara Watkins and Foundation board members Beth Johnston and Leigh Bacharach. During this meeting, Shipp learned that Beth was her new supervisor. Shipp asserts that during this meeting, Beth told Shipp that she did not want Shipp to file "an L&I claim" because doing so would make her fellow employees pay for her medical costs and, thus, hurt Treasures. CP at 73. Shipp claims that Beth suggested Shipp blame her injury on a former employer so that Treasures would not be responsible for the entire cost of Shipp's treatment. Beth also requested Shipp sign a release allowing Beth access to her medical records. Finally, Beth directed Shipp to contact her immediately after Shipp's January 19 doctor's appointment. In response, Shipp said that she would follow her doctor's recommendation and, although she did not sign the medical release, Shipp did agree to contact Beth immediately after her doctor's appointment. Also during this meeting, Beth "gave [Shipp] a positive evaluation" because the Treasures store "looked very good." CP at 74.
Because this case involves two people with the same last name, Beth Johnston and Gail Johnston, we refer to each by their first name for clarity, intending no disrespect.
On January 19, Shipp met with her doctor and learned that she had moderate to severe carpal tunnel syndrome in both hands. Shipp called Beth to report the nerve study results and also to inform Beth that Shipp and her doctor had completed the requisite paperwork for a workers' compensation claim. Just two days later, on January 21, Beth terminated Shipp's employment at Treasures. Beth and Bacharach informed Shipp that she had to leave Treasures immediately, escorted her through the store to Shipp's office in view of other employees, escorted her out the back door, and slammed the door while telling Shipp she could never return.
Solely for purposes of its motion for summary judgment below and for this appeal, the Foundation does not dispute that Shipp notified her supervisor on January 19 that she would be filing a workers' compensation claim.
Beth memorialized Treasures's reasons for terminating Shipp in a January 21 disciplinary action form. In this form, Beth stated that she terminated Shipp for gossiping about Treasures despite verbal warnings not to do so. Specifically, Beth reported that she terminated Shipp (1) for dishonest responses to questions on January 16 about whether Shipp told fellow Treasures employee Jane Hoyos that Shipp would likely be fired, and (2) for Shipp violating a January 16 warning not to engage in gossip about Treasures when she spoke with Hoyos on the phone on January 20. Shipp reported that during the January 20 conversation between Hoyos and Shipp, Shipp replied, "I'm still here, " in response to Hoyos's observation that "she didn't get fired." CP at 76. Shipp denies engaging in gossip. Shipp also denies that Beth warned her not to gossip when they met on January 16. Instead, Shipp asserts that she and Beth never discussed Shipp's gossiping.
On January 19, 2007, Shipp sued the Foundation in Mason County for retaliatory termination and outrage. Mason County Superior Court dismissed the case based on insufficient service of process; we reversed and remanded in an unpublished opinion. After remand, the Foundation moved for summary judgment. Thereafter, Shipp and the Foundation each filed an affidavit of prejudice and the Foundation successfully moved to transfer the case to Thurston County.
Shipp v. Mason General Hosp. Foundation, noted at 147 Wn.App. 1023 (2008).
In opposition to the Foundation's motion for summary judgment on her retaliation claim, Shipp presented declarations of Gail Johnston and Dawn Pannell who averred that Beth gave inconsistent justifications for terminating Shipp. Gail stated that Foundation board member Karen Hilburn told her that Beth said she terminated Shipp because Shipp was unable to perform her job duties. Gail further stated that she overheard the January 20 phone call between Shipp and Hoyos that Beth claimed was the conversation Shipp engaged in gossip about Treasures. But Gail averred that Shipp did not engage in gossip with Hoyos during that conversation. Dawn Pannell stated by declaration that she met with Beth regarding possible transfer of operating responsibilities for Treasures from the Foundation to the local Kiwanis Club. Pannell further asserted that, "to the best of [her] recollection, " Beth told her she terminated Shipp because Treasures was unprofitable, despite Pannell's knowledge that Treasures was "making money." CP at 68.
In a self-prepared "employment timeline" appended to her declaration, Shipp wrote that in September 2003-four months before she notified Treasures of her intent to file a workers' compensation claim-she believed her job was in jeopardy. CP at 82-83. Specifically, Shipp wrote in her employment timeline that she met with Watkins and Beth twice in September 2003 regarding timekeeping, Shipp's job description, Watkins's and Beth's evaluation of Shipp's performance, and Shipp's own comments about that evaluation. Further, Shipp wrote that Beth stated that she would likely fire Shipp based on Shipp's comments, but that a final decision was pending a follow-up meeting in December. Shipp again met with Watkins and Beth on December 17, and learned that the Foundation had not yet made a decision about Shipp's continued employment; rather, they would meet with Shipp again in January. The Foundation's December 18 board meeting minutes confirm that the board was in the process of evaluating all Treasures employees.
The Foundation moved to strike Shipp's responses to its summary judgment motion, arguing that the responses were untimely, included declarations from persons not disclosed as witnesses, and contained extensive hearsay statements. Also, Shipp moved to strike Beth's declaration as inadmissible hearsay. The trial court heard arguments on the motions to strike and the motion for summary judgment the same day. At this hearing, the trial court denied Shipp's motion to strike. However, the trial court did not specifically address the Foundation's hearsay objections, nor did it address the Foundation's motion to strike. Further, although the trial court granted summary judgment in favor of the Foundation on both of Shipp's claims, it stated that it was not granting summary judgment as a sanction for Shipp's noncompliance with discovery and witness disclosure deadlines. Rather, the trial court found that lesser sanctions were available, including potentially striking witnesses if the case ever reached trial.
Almost one month later, the trial court entered a written order granting summary judgment. The trial court considered all evidence presented, including the declarations Shipp submitted. Shipp timely appealed.
ANALYSIS
I. Standard of Review
We review orders for summary judgment de novo, performing the same inquiry as the trial court. Aba Sheikh v. Choe, 156 Wn.2d 441, 447, 128 P.3d 574 (2006). Summary judgment is appropriate only if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). The moving party bears the burden of showing there is no issue of material fact. Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). We construe all facts and reasonable inferences in the light most favorable to the nonmoving party. Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999).
II. Admissibility of Declarations
As an initial matter, the Foundation argues that the trial court erred in considering Shipp's responses to its summary judgment motion because they were untimely, included declarations by undisclosed witnesses, and contained inadmissible hearsay. We disagree.
A trial court may consider only admissible evidence in ruling on summary judgment motions. Allen v. Asbestos Corp., 138 Wn.App. 564, 570, 157 P.3d 406 (2007). Evidence of contradictory out-of-court statements by a witness is admissible to impeach the credibility of that witness without raising a hearsay problem because the statements are not offered for their truth. Fraser v. Beutel, 56 Wn.App. 725, 738, 785 P.2d 470 (1990). Because the statements contained in the declarations of Shipp and Pannell show that Beth gave inconsistent justifications for terminating Shipp, they were admissible for impeachment purposes. Thus, the evidence the trial court considered on summary judgment was appropriate.
Shipp also presented a declaration from Gail stating that Hilburn said Beth had said Treasures terminated Shipp because Shipp was unable to perform her job duties. Even without considering Gail's declaration, which Shipp may have difficulty admitting on remand because of possible multiple hearsay, we find that the trial court considered sufficient admissible evidence in making its ruling.
Because the trial court considered evidence that was admissible for impeachment purposes and because the Foundation may renew its objections on remand, it was not materially prejudiced. Thus, we disagree with the Foundation's evidentiary argument.
III. Outrage
Shipp argues that she established a question of fact as to whether the Foundation engaged in outrageous conduct when Beth terminated her employment, terminated her medical benefits, escorted her through the store and out the back door in front of employees whom she previously supervised, banned her from ever returning to Treasures, and slammed the door. Shipp also argues that Beth's inconsistent explanations to third parties on the cause of her termination were outrageous. Finally, Shipp argues that this conduct was not a "mere escort from the workplace" termination case because Shipp's status as a "crippled" retail manager in need of medical treatment rendered the mode of her termination outrageous. Reply Br. of Appellant at 6-7; 14. The Foundation counters that, even if true, these facts do not approach the level required to establish the tort of outrage. We agree with the Foundation.
To prevail on a claim for outrage, a plaintiff must prove (1) extreme and outrageous conduct, (2) intentional or reckless infliction of emotional distress, and (3) resulting severe emotional distress on the part of the plaintiff. Robel v. Roundup Corp., 148 Wn.2d 35, 51, 59 P.3d 611 (2002) (quoting Reid v. Pierce County, 136 Wn.2d 195, 202, 961 P.2d 333 (1998)). Conduct must go "beyond all possible bounds of decency, and . . . be regarded as atrocious, and utterly intolerable in a civilized community" to satisfy the first element of outrage. Grimsby v. Samson, 85 Wn.2d 52, 59, 530 P.2d 291 (1975) (quoting Restatement (Second) of Torts, § 46 cmt. d). Outrageous conduct is conduct which would cause an average member of the community to exclaim "Outrageous!" upon hearing a recitation of the facts. Reid, 136 Wn.2d 195 at 201-02. Liability "'does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.'" Kloepfel v. Bokor, 149 Wn.2d 192, 196, 66 P.3d 630 (2003) (quoting Grimsby, 85 Wn.2d at 59). Members of society must be necessarily hardened to a certain degree of unkindness and lack of consideration. Kloepfel, 149 Wn.2d at 196 (quoting Grimsby, 85 Wn.2d at 59).
Although the elements of outrage are generally factual questions for the jury, in ruling on a motion for summary judgment, the trial court must make a threshold determination on whether reasonable minds could differ on whether the conduct was sufficiently extreme and outrageous to result in liability. Robel, 148 Wn.2d at 51. In making this threshold determination, the relationship between the parties is a significant factor for the court. Robel, 148 Wn.2d at 52. While terminating an employment relationship is not outrageous in itself, the manner in which a termination is effectuated may be outrageous. Dicomes v. State, 113 Wn.2d 612, 630, 782 P.2d 1002 (1989).
Shipp relies on Corey v. Pierce County, 154 Wn.App. 752, 225 P.3d 367 (2010), to support her argument that the Foundation terminated her in an outrageous manner. But her reliance is misplaced because Corey involved much more egregious circumstances. In Corey, the county prosecutor gave his third highest ranking deputy prosecutor mere moments to elect to resign or else face termination. 154 Wn.App. at 757-58. After Corey elected to resign, the county prosecutor then publicly accused her of criminal activity and implied that she mishandled public funds even though he knew the allegations were meritless. Corey, 154 Wn.App. at 758-764. The court held that the public, false accusations against Corey went beyond "mere insults and indignities." Corey, 154 Wn.App. at 764. Instead, because Corey was a veteran public servant and prosecutor, the court held that the prosecutor's false allegations of criminal activity were particularly loathsome and sufficient to support her outrage claim. Corey, 154 Wn.App. at 764.
Here, after Shipp's termination, Beth made inconsistent statements to a community member and to a Foundation board member about the causes for Shipp's termination. Like Corey, Shipp's former supervisor made statements to third parties about the causes of her termination. But unlike Corey, Beth's statements were limited in scope because they were made only to Foundation board member Karen Hilburn and city commissioner Dawn Pannell, not to the local paper. Also unlike Corey, Beth did not state that she terminated Shipp for criminal activity; rather, she stated that she terminated Shipp either because Shipp was unable to perform her job duties or because Treasures was suffering financially. Because neither reason Beth shared for terminating Shipp was particularly loathsome, the statements, even taken as true, were not sufficient to support Shipp's outrage claim.
Alternatively, Shipp argues that the manner in which Beth and Bacharach escorted her from Treasures was outrageous. However, conduct that falls within the unprotected category of "insults, indignities, threats, annoyances, petty oppressions, or other trivialities" cannot support an outrage claim. Strong v. Terrell, 147 Wn.App. 376, 386, 195 P.3d 977 (2008) (quoting Grimsby, 85 Wn.2d at 59). In Strong, we held that a supervisor who subjected an employee to daily verbal abuse (including screaming and sarcastic criticism about her work), ridiculed her about her personal life, and denigrated her parenting abilities over a two-year period, had not engaged in conduct severe enough to establish an outrage claim. 147 Wn.App. at 386. Instead, the conduct about which Strong complained fell within the unprotected category of insults, indignities, and annoyances. Strong, 147 Wn.App. at 386.
Here, the Foundation terminated Shipp, escorted her out of the store in front of her former subordinates, told her not to return, and slammed the door. While arguably unpleasant, each of these actions is much more benign than those at issue in Strong. Like Strong, the Foundation's conduct belongs in the category of indignities, annoyances, and petty oppressions and cannot support Shipp's outrage claim.
Because the conduct Shipp cited cannot even approach the threshold required to support an outrage claim, the trial court correctly dismissed the claim on summary judgment. Thus, we affirm the summary dismissal of this claim.
IV. Retaliation
Shipp next argues that the Foundation violated the Industrial Insurance Act (IIA) and public policy when it terminated her just two days after Shipp notified Beth that she and her doctor completed the necessary paperwork for a workers' compensation claim. The Foundation counters that there is no question of material fact because Shipp did not present admissible evidence to show that the Foundation's reason for her termination was pretextual. Because Shipp and the Foundation offered competing reasonable justifications for Shipp's termination, the cause of her termination is a question of material fact and summary judgment was inappropriate. We reverse and remand on the retaliation claim.
Title 51 RCW.
Claims of retaliatory discharge under the IIA are subject to a burden-shifting scheme. Wilmot v. Kaiser Aluminum & Chem. Co., 118 Wn.2d 46, 70, 821 P.2d 18 (1991). If a plaintiff makes a prima facie showing, the burden shifts to the employer to produce evidence of a legitimate reason for terminating the employee. Wilmot, 118 Wn.2d at 70. If the employer satisfies this burden of production, the burden shifts back to the discharged employee to show that the employer's justification for terminating the employee was pretextual. Wilmot, 118 Wn.2d at 70.
First, a plaintiff makes a prima facie case of retaliatory discharge for pursuing workers' compensation benefits by showing
(1) that . . . she exercised the statutory right to pursue workers' benefits under RCW Title 51 or [that she] communicated [her intent to do so] to the employer . . . or [that she] exercised any other right under RCW Title 51;
(2)that . . . she was discharged [from employment]; and
(3)[that her exercise of her legal rights under RCW Title 51 caused or motivated her termination].
Wilmot, 118 Wn.2d at 68-69 (emphasis added). Because proof of an employer's retaliatory motive is difficult for a discharged employee to obtain, a plaintiff may establish a prima facie case by circumstantial evidence. Wilmot, 118 Wn.2d at 69. Further, an employee need not show that retaliation for exercising workers' compensation rights was the sole reason for termination; rather, a terminated employee need only show that exercise of IIA rights was a substantial factor behind the termination. Wilmot, 118 Wn.2d at 71-72. Thus, if the plaintiff exercises rights under RCW Title 51 and shows that the employer had knowledge of the claim and terminated the employee, the plaintiff benefits from a rebuttable presumption of retaliation. Wilmot, 118 Wn.2d at 68-69.
Further, a temporal nexus between an employee engaging in protected activity and the adverse employment decision suggests retaliation. See Burchfiel v. Boeing Corp., 149 Wn.App. 468, 205 P.3d 145 (2009). Here, Shipp established at least a question of material fact of a prima facie case of retaliatory discharge by presenting evidence that Beth terminated her two days after Shipp notified Beth that Shipp completed workers' compensation claim paperwork with her doctor. Shipp provided additional evidence that the Foundation did not want her to file a workers' compensation claim. Thus, Shipp created a rebuttable presumption of retaliation and shifted the burden to the Foundation to produce evidence of a legitimate, nonpretextual motivation for terminating her.
Burchfiel analyzes retaliatory discharge in the context of Washington's law against discrimination, but the retaliation analysis is the same here.
Next, to rebut a prima facie case of retaliatory discharge, an employer must show that the workers' compensation claim had no impact on its decision to terminate the employee because it would have inevitably terminated the employee. Wilmot, 118 Wn.2d at 70-72. The employer need not make this showing by a preponderance of the evidence because the employer's burden is a burden of production not of persuasion. Wilmot, 118 Wn.2d at 70. If the employer produces evidence of a legitimate reason for terminating the employee, the burden shifts back to the plaintiff to show that the employer's reason is pretextual, i.e., not worthy of belief. Wilmot, 118 Wn.2d at 70.
Here, the Foundation succeeded in rebutting the presumption of retaliation by producing evidence that it terminated Shipp for gossiping and not following instructions. The Foundation also produced evidence that Shipp believed her job was in jeopardy since at least September 2003, that the Foundation's board was evaluating all Treasures employees, and that the Foundation's board members told Shipp in December 2003 that the board would decide whether it would continue Shipp's employment sometime in January. This evidence rebutted the presumption of retaliation and shifted the burden back to Shipp to produce evidence of pretext.
Lastly, an employee need only create a genuine issue of material fact that the termination was pretextual in order to survive an employer's summary judgment motion because the court considers all facts and inferences in the light most favorable to the employee. Renz v. Spokane Eye Clinic, P.S., 114 Wn.App. 611, 619, 60 P.3d 106 (2002). Moreover, an employee may show pretext by the same evidence used to make her prima facie case. Milligan v. Thompson, 110 Wn.App. 628, 637, 42 P.3d 418 (2002). If an employer gives multiple, inconsistent reasons for terminating an employee, there is an inference that none of the reasons given is the real reason. Renz, 114 Wn.App. at 624. Evidence of an employer offering conflicting reasons for terminating an employee creates competing inferences of the employer's actual motive for terminating the employee that cannot be resolved on summary judgment. Renz, 114 Wn.App. at 624. Where the parties have met all their burdens and competing reasonable inferences remain, then summary judgment is not appropriate and the jury must decide whether the termination was retaliatory. Renz, 114 Wn.App. at 622.
Here, Shipp presented evidence that Beth told her she did not want her to file a workers' compensation claim, that Shipp notified Beth on January 19 that she and her doctor had completed the paperwork for a workers' compensation claim, and that Beth terminated Shipp on January 21. Shipp also presented evidence that Beth made at least two inconsistent statements about the reason she terminated Shipp. The divergent reasons Beth gave for terminating Shipp were that Shipp gossiped with a co-worker despite warnings not to do so, and that Treasures was unprofitable. This evidence is sufficient to raise a genuine issue of material fact regarding the Foundation's motivation in terminating Shipp and summary judgment was inappropriate. We reverse and remand for further proceedings on the retaliation claim.
In holding that Shipp met her summary judgment burden on her retaliation claim, this court does not weigh the credibility of her evidence and makes no comment on it. See Jones, 170 Wn.2d at 354, n.7.
V. Request for Sanctions
The Foundation argues that it was materially prejudiced when the trial court declined to rule explicitly on its motion to strike. The Foundation, without filing a cross-appeal, requests affirmative relief by asking us to remand and instruct the trial court to exercise its discretion to impose sanctions on Shipp for failing to timely disclose witnesses. We disagree.
A respondent is not entitled to affirmative relief absent a cross-appeal. RAP 2.4(a). Because the Foundation did not cross-appeal, we do not address the issues of Shipp's noncompliance with witness disclosure and discovery deadlines.
Reverse 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 in accordance with RCW 2.06.040, it is so ordered.
We concur: Van Deren, J. Penoyar, C.J.