DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 49406-6-I
Title of Case: Lloyd C. Herndon, Appellant
v.
City of Everett, Respondent
File Date: 09/09/2002
SOURCE OF APPEAL
----------------
Appeal from Superior Court of Snohomish County
Docket No: 99-2-03243-6
Judgment or order under review
Date filed: 09/18/2001
Judge signing: Hon. Joseph Thibodeau
JUDGES
------
Authored by Anne L. Ellington
Concurring: Ronald E. Cox
Faye C. Kennedy
COUNSEL OF RECORD
-----------------
Counsel for Appellant(s)
Russell B. Juckett Jr.
Counselor At Law
3119 Oakes Ave
Everett, WA 98201-4405
Counsel for Respondent(s)
Grant S. Degginger
Lane Powell Spears Lubersky
1420 Fifth Ave., Ste.4100
Seattle, WA 98101
Kimberly M. Meyers
Attorney At Law
1420 5th Ave Ste 4100
Seattle, WA 98101-2338
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
LLOYD C. HERNDON, )
) No. 49406-6-I
Appellant, )
) DIVISION ONE
v. )
)
CITY OF EVERETT, a municipal ) UNPUBLISHED OPINION
corporation, )
)
Respondent. )
) FILED:
ELLINGTON, J. In this employment discrimination case, no questions of
fact exist about Lloyd Herndon's harassment, retaliation, negligent
infliction of emotional distress, outrage, defamation, or breach of
contract claims. The trial court therefore properly granted summary
judgment in favor of the City of Everett, and we affirm.
FACTS
Lloyd Herndon works for the City of Everett as a police officer. On
May 27, 1997, he was transferred from detective to patrolman. Herndon is
Asian, but he acknowledges the demotion was not motivated by his race.
Shortly after his transfer, he asked his new supervisor, Chuck Innes, if he
could take June 10 as a vacation day. Innes denied the request because the
absence would have caused the number of available officers that day to fall
below the minimum required by the union contract. On June 8, Herndon
called in sick. On the mistaken belief that Herndon's requested vacation
day was the 8th, Innes told other officers at a briefing that day that
Herndon was likely faking his illness, and that he planned to drive by
Herndon's house. Another officer called Herndon at home to warn him.
Innes never drove to Herndon's home.
Herndon complained about Innes' conduct to Ricardo DeVilla, the City's
Affirmative Action Officer. He did not assert mistreatment because of his
race or national origin. Instead, he complained that Innes' conduct
insulted his credibility and integrity, especially in light of his recent
transfer. At DeVilla's request, Herndon provided a written statement,
which also made no mention of harassment because of race or national
origin. Herndon admits that a previous supervisor drove to his home to
verify the legitimacy of a sick day, and that other officers have been
similarly checked upon after calling in sick.
On June 22, Innes left his supervisory position and on July 2, he was
placed on medical leave. He thus worked with Herndon for only one month
(May 27 to June 22). In his deposition, Herndon acknowledged that he had
only a few brief interactions with Innes during that one month.
In response to Herndon's complaint, Officer DeVilla, Deputy Chief Pat
Slack, and Captain Pat Lee interviewed Innes. DeVilla and Deputy Chief
Robert Stiles then interviewed seven other officers who were present at the
June 8 briefing. None of the officers, including two who are Asian,
reported discriminatory comments. DeVilla and Stiles jointly interviewed
Herndon, who explicitly denied any harassment based on race or national
origin. DeVilla and Stiles concluded that Innes had engaged in no
misconduct and sent their report to Chief James Scharf. Scharf sent
Herndon a memo describing the results of the investigation. Herndon was
dissatisfied, and met with Scharf to discuss the issue. During this
meeting, Herndon again stated he believed Innes' conduct was not motivated
by race or national origin.
Herndon then filed a complaint with the Equal Employment Opportunity
Commission (EEOC) alleging discrimination based on race and national
origin. He contacted Sergeant White, who gave a statement on October 14,
1997. Contrary to the statement he gave during the departmental
investigation, White told Herndon that Innes said, 'I want to go out to
Herndon's and catch that little fucking gook working in his yard.' Clerk's
Papers at 162. While pursuing the EEOC claim, Herndon learned that Innes
had made racial or religious slurs directed against two other officers.
Innes told Officer Garcia that he might not pass a physical test due to his
weight from eating so many tacos, that his golf tournament prize was two
tacos, and, when Garcia was on the phone, Innes said he must have been
calling his family in Tijuana. After learning that Officer Templeman was
making plans for Easter, Innes said, 'I didn't know you Jews celebrated
Easter.' Clerk's Papers at 57. Herndon thus learned for the first time
from White that Innes used racial slurs.1 In March 1998, the EEOC
completed its investigation and notified Herndon that it found no
discrimination based on race or national origin.
That same spring, the City hired new police officers. As a result, it
lacked sufficient Master Police Officers (MPOs) to handle all the necessary
training. The City and the officers' union agreed that when an MPO was
unavailable, training would be performed by designated Field Training
Officers (FTOs), who would receive an increase in base pay while training a
new recruit. For scheduling purposes, the City used a spreadsheet what the
officers called a 'matrix' to track the trainees and their appointed MPO or
FTO. Because there was often a sufficient number of MPOs to pair with
trainees, many of the FTOs never were never paired with a trainee and
therefore never appeared on the matrix.
Herndon was on medical leave for hand surgery, and was not among the
first group of officers to receive an FTO designation. Two other officers,
Herm Atkins and Debbie Prather, neither of whom were on leave at the time,
were also passed up for the initial FTO designations. When he returned
from medical leave in March of 1998, Herndon requested and received an FTO
designation. Atkins and Prather were also designated.
Herndon filed his suit against the City in May 1999, alleging (1)
unlawful harassment based on race or national origin, (2) retaliation, (3)
negligent infliction of emotional distress, (4) outrage, (5) negligent
supervision and training, (6) false light/defamation, and (7) breach of
contract.
In March of 2001, Herndon lodged a complaint with the police department
contending that his FTO designation had been removed. Apparently Herndon
first believed that the designation had been removed when his name failed
to appear on the matrix and that this was retaliation for his suit against
the City. The City investigated and explained in a letter to Herndon that
the designation had never been removed:
{Y}ou are in fact a qualified FTO but that you along with some other FTOs
are not on the current matrix in that there are a sufficient number of MPOs
currently available to meet the Training Unit's needs. As those needs
change, you and other FTOs may be called upon in a future matrix for
assignment of trainees.
Clerk's Papers at 324.
The trial court granted the City's motion for summary judgment on all
claims. Herndon appeals.
DISCUSSION
I. Harassment/Hostile Work Environment
To establish a prima facie case for a hostile work environment based
on race or national origin, the plaintiff must prove each of the following
elements: (1) the harassment was unwelcome; (2) the harassment was because
of race; (3) the harassment affected the terms or conditions of employment;
and (4) the harassment is imputed to the employer. RCW 49.60.180(3);
Glasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708
(1985); Fisher v. Tacoma School Dist. No. 10, 53 Wn. App. 591, 595-96, 769
P.2d 318 (1989) (holding that the Glasgow test for a hostile work
environment based on sex applies to a hostile work environment based on
race as well).
Casual, isolated or trivial manifestations of a discriminatory environment
do not affect the terms or conditions of employment to a sufficiently
significant degree to violate the law. Glasgow, 103 Wn.2d at 406. Rather,
'{t}he harassment must be sufficiently pervasive so as to alter the
conditions of employment and create an abusive working environment.'
Glasgow, 103 Wn.2d at 406. Workplace conduct is measured by both
subjective and objective tests in light of the totality of the
circumstances. MacDonald v. Korum Ford, 80 Wn. App. 877, 885-86, 912 P.2d
1052 (1996). The court must consider such factors as 'the frequency of the
discriminatory conduct; its severity; whether it is physically threatening
or humiliating, or a mere offensive utterance; and whether it unreasonably
interferes with an employee's work performance.' Robel v. Roundup Corp.,
103 Wn. App. 75, 86, 10 P.3d 1104 (2000), review granted, 143 Wn.2d 1008
(2001) (citations omitted).
A claim of workplace harassment thus requires a significant showing.
For example, in Robel, coworkers and supervisors called the plaintiff a
'fucking bitch,' a 'bitch,' a 'cunt,' and told customers that she had been
assigned tasks as punishment for lying about work-related back injury.
Robel, 103 Wn. App. at 84. The court noted that the harassment had not
unreasonably interfered with her job performance, and held that the
language and comments, although unquestionably offensive, nonetheless did
not rise to the level of severity or pervasiveness necessary to establish a
hostile work environment. Robel, 103 Wn. App. at 93.
Similarly, in Washington v. Boeing Co., 105 Wn. App. 1, 19 P.3d 1041
(2000), the court held that the workplace conduct was highly offensive, but
not sufficiently pervasive to alter the conditions of employment. There,
the employer referred to the plaintiff's hair as 'brillo head'; transferred
her after a coworker remarked that she couldn't perform her job as well as
a man and again after another coworker grabbed her buttocks; failed to
provide her with training; and called her 'dear' and 'sweat pea.' Boeing
Co., 105 Wn. App. at 6, 10-13; see also MacDonald, 80 Wn. App. at 886-87
(summary judgment in favor of employer where one manager kissed plaintiff
and another manager made two comments to plaintiff such as 'with {her}
tits, {she} should be able to sell anything . . . .' and often brushed
against plaintiff or placed his hands on her back).
Herndon's harassment claims center entirely upon the conduct of
Officer Innes, and can be summarized as follows: (1) In June 1997, Innes
allegedly referred to Herndon as a 'little fucking gook' and accused him of
abusing his sick leave; (2) Innes used racial slurs to describe Herndon in
1989 and 1996; and (3) Innes used racial and religious slurs to describe
other officers. Innes' conduct was obviously and entirely improper.
Herndon and Innes worked together, however, for only one month. Moreover,
most of Innes' bigoted comments were unknown to Herndon until after he
filed his EEOC claim, and they were not severe or pervasive as the conduct
in Robel, Boeing, or MacDonald. Innes' conduct therefore is not sufficient
to support the harassment claim.
II. Retaliation
An employer may not retaliate against an employee who opposes an
unlawful practice. RCW 49.60.210. To establish a prima facie case of
retaliation, a plaintiff must prove: (1) he engaged in statutorily
protected activity; (2) the employer took an adverse employment action; and
(3) a causal link existed between the activity and the adverse action.
Francom v. Costco Wholesale Corp., 98 Wn. App. 845, 861-62, 991 P.2d 1182,
review denied, 141 Wn.2d 1017 (2000).
Herndon argues the City delayed designating him as a Field Training
Officer (FTO) in retaliation for his harassment claim.2 But Herndon
presents no such evidence. As he acknowledged in his deposition, the sole
reason for the delayed designation was because he was on leave recovering
from hand surgery when the initial FTO assignments occurred. When he
returned and requested the designation, he received it. Further, two other
officers were also initially denied the designation, but they had never
filed harassment claims.
Herndon also argues the City removed his FTO designation in
retaliation for his lawsuit against the City. Apparently Herndon thought
the designation had been removed because his name was not on the matrix.
However, Herndon was not the only FTO whose name did not appear on the
list. Many FTOs were never paired with a trainee, because if a sufficient
number of Master Police Officers (MPOs) were available, FTOs were not
needed. The City has repeatedly denied that Herndon's FTO designation was
removed. His only basis for believing otherwise is that a coworker told
him so. This evidence is insufficient.
In sum, Herndon failed to show either an adverse employment action or
a causal link between his harassment claim and the City's action regarding
his FTO status. The trial court properly granted summary judgment on the
retaliation claim.
III. Negligent Infliction of Emotional Distress
The same facts cannot be relied upon to support both a RCW 49.60
discrimination claim and a negligence claim. Francom, 98 Wn. App. at
864-65 (affirming the dismissal of negligent infliction of emotional
distress when the claim arises from a supervisor's harassment); Robel, 103
Wn. App. at 91 (claim is not cognizable 'when the only factual basis for
the emotional distress {is} the discrimination claim') (citations
omitted)). Here, Herndon relies on the same facts to support both his
RCW 49.60 discrimination and retaliation claims and his emotional distress
claim. The trial court therefore properly granted the City's motion for
summary judgment on Herndon's negligent infliction of emotional distress
claim.3
IV. Intentional Infliction of Emotional Distress/Outrage
To establish the tort of outrage, a plaintiff must prove (1) extreme and
outrageous conduct; (2) intentional or reckless infliction of emotional
distress; and (3) actual resulting severe emotional distress. Synder v.
Medical Serv. Corp., 145 Wn.2d 233, 242, 35 P.3d 1158 (2001). The conduct
must be 'so outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as atrocious, and
utterly intolerable in a civilized community.' Synder, 145 Wn.2d at 242
(citations omitted). The conduct Herndon relies on here is, again, Innes'
obnoxious and racist remarks.
As discussed above, Officer Innes' conduct was insufficient to support a
harassment claim. It is similarly insufficient to support an outrage
claim. See Robel, 103 Wn. App. at 90 ('rough, insulting language and other
indignities' not sufficiently extreme and outrageous). The trial court
properly dismissed Herndon's outrage claim.
V. False Light/Defamation
Herndon claims Inness defamed him and publicly placed him in a false light
by suggesting he might be malingering. False light requires that a
plaintiff prove: (1) publication, (2) of a materially false statement, and
(3) that would be highly offensive to a reasonable person. Eastwood v.
Cascade Broad. Co., 42 Wn. App. 88, 91, 708 P.2d 1216 (1985), rev'd on
other grounds, 106 Wn.2d 466 (1986). The publication of a falsehood means
that the matter is made public by communicating it to the public at large,
and the publication must be 'to a substantial number of people.' LaMon v.
City of Westport, 44 Wn. App. 664, 669, 723 P.2d 470 (1986) (citing
Restatement (Second) of Torts sec.sec. 652E and D, comment a, at 384
(1977)).
Here, the statements were not published to a substantial number of people.
Rather, they were published, at a maximum, to a small group of seven
officers in the Everett police department. This is insufficient.
To prove defamation, a plaintiff must prove: (1) a false and defamatory
statement, (2) an unprivileged communication, (3) fault, and (4) damages.
LaMon, 44 Wn. App. at 657. Statements of opinion are not actionable as
defamation. Dunlap v. Wayne, 105 Wn.2d 529, 538, 716 P.2d 842 (1986). In
determining whether a statement is opinion and not actionable, we consider
'(1) the medium and context in which the statement was published, (2) the
audience to whom it was published, and (3) whether the statement implies
undisclosed facts.' Dunlap, 105 Wn.2d at 539-40 (accusing plaintiff of
'solicitation of kickbacks' was opinion).
Vulgar names are not defamatory statements because they communicate
opinions, not facts. Robel, 103 Wn. App. at 92. Thus, Officer Innes'
racial slur was an opinion 'not capable of defamatory meaning{.}' See
Robel, 103 Wn. App. at 92. Similarly, Innes' statement that Herndon was
faking an illness did not communicate undisclosed facts. Rather, it was an
assertion of opinion.
Moreover, Innes was entitled discuss abuse of sick leave under the 'common
interest' qualified privilege, which applies when the declarant and the
recipient have a common interest in the subject matter of the
communication. Moe v. Wise, 97 Wn. App. 950, 957-58, 989 P.2d 1148 (1999).
Here, the matter of Herndon's illness and possible abuse of sick leave are
interests shared by Innes and the officers present, and therefore his
statement, despite its obnoxious content, was privileged.
VI. Breach of Contract
In the trial court, Herndon argued that the Everett police failed to follow
their departmental guidelines regarding internal investigations, and that
the City is thus liable for breach of contract.4 Because the collective
bargaining agreement between the city and the police officer's union
contains a specific section governing internal investigations, his claim is
preempted by Section 301 of the Labor Management Relations Act. See 29
U.S.C. sec. 185 (2000); Swinford v. Russ Dunmire Oldsmobile, Inc., 82 Wn.
App. 401, 411, 918 P.2d 186 (1996). The trial court properly dismissed
this claim on summary judgment.
Affirmed.
WE CONCUR:
1 Another employee later testified that Innes used racial slurs to describe
Herndon in 1989 and 1996.
2 In his response to the City's motion for summary judgment, Herndon
specified other incidents which he believed showed retaliation. His only
retaliation argument on appeal, however, involves his FTO designation.
3 Although Herndon does not assign error to the dismissal of his negligent
supervision claim, it is also barred as duplicative of his statutory claim.
See Francom, 98 Wn. App. at 866.
4 On appeal, Herndon does not mention his breach of contract claim.
Instead, he argues the trial court improperly dismissed his 'negligent
investigation' claim. But negligent investigation was not pled in the
trial court, and we therefore do not address it. See RAP 2.5(a).