Robel v. Roundup Corp.

10 P.3d 1104

103 Wash.App. 75

Linda ROBEL, Respondent, v. ROUNDUP CORPORATION, d/b/a Fred Meyer, Inc., Appellant.

No. 18883-3-III.

Court of Appeals of Washington, Division 3, Panel Nine.

October 26, 2000.

Keller W. Allen, Witherspoon, Kelley, Davenport & Toole, Spokane, for Appellant.

Michael J. Walker, Delay, Curran, Thompson, Pontarolo & Walker, Spokane, for Respondent.

KATO, J.

Roundup Corporation appeals a judgment in favor of a former employee for disability discrimination, unlawful retaliation, outrage, negligent infliction of emotional distress, and defamation. It contends the facts do not support the superior court's conclusions as to each of these claims. We agree and reverse.

Roundup Corporation, which does business as Fred Meyer, Inc., operates a retail store on East Francis Avenue in Spokane. Linda Robel, the plaintiff in this case, began working in the store's service deli in May 1995. Ms. Robel noticed what she believed to be unsanitary and unhealthy food-handling practices in the deli, and she raised these concerns with other employees and deli management personnel. In December 1995, Ms. Robel began recording in a journal her concerns about the food-handling practices, about backdating of temperature chart entries, and about the general "dysfunctional"¹ nature of the deli workplace.

The next month, Ms. Robel had a falling-out with a deli coworker, Tiffany Ware. Ms. Robel disapproved of Ms. Ware's relationship with Ms. Robel's son, and the mutual animosity frequently spilled over into the workplace. Ms. Ware was a close friend of the deli's assistant manager, Amy Smith, and their friendship also carried over into the workplace.

In January and February 1996, Ms. Robel noted in her journal that Ms. Smith and the deli manager, Evelyn Potts, demonstrated favoritism toward Ms. Ware and certain other employees. Ms. Robel also noted "backstabbing" by management and the favored group, unhealthy food-handling practices, questionable purchases by management of meat and deli items, an increased workload on Ms. Robel, and a general awareness by certain employees that Ms. Robel was keeping the journal. In February 1996, Ms. Robel noted that Ms. Potts and Ms. Smith were making snide remarks about her food-handling and temperature-chart concerns, and that Ms. Potts was criticizing Ms. Robel's work and her conduct toward Ms. Ware and Ms. Smith. Ms. Robel also noted a significant increase in the workload to the point that the pressure was "unbearable." A coworker told Ms. Robel that Ms. Potts had instructed her not to talk to Ms. Robel at work. Ms. Robel noted that she was crying a lot, and her family was being affected. She wrote that she would quit the job if she did not need the medical benefits for her family.

On March 28, 1996, Ms. Robel's husband called the store's director, Steve Wissink, to report Ms. Robel's concerns. Mr. Wissink then met with Ms. Robel, who explained her concerns about the food-handling practices in the deli and the verbal and nonverbal harassment to which she was being subjected in the work setting. Tawnya Huntoon, another deli employee, also informed Mr. Wissink of her similar concerns regarding the food-handling practices in the deli. Ms. Huntoon's concerns about the deli work environment caused her to take a job in a different department at the store. Ms. Robel and Ms. Huntoon also reported their concerns to Glen Vaughn, third in charge of the store's food department (which included the deli).

After meeting with Ms. Robel and Ms. Huntoon, Mr. Wissink undertook an investigation and determined the food-handling allegations were not substantiated. Also after the meetings, deli coworkers whispered, laughed, and pointed at Ms. Robel, and the activities persisted.

The workplace atmosphere strained Ms. Robel's family life, she began to lose sleep and weight, and she began to withdraw from family relationships and activities. She lost at least 20 pounds, and her husband observed her sinking into depression.

In April 1996, Ms. Ware was awarded a 40-hour position in the deli. The United Food and Commercial Workers union successfully challenged this action on behalf of Ms. Robel, who then was given the job.

On May 8, 1996, Ms. Potts set up a meeting in the store's back room, purportedly to allow Ms. Robel and Ms. Ware to air their grievances face-to-face. Ms. Ware was in the room with Ms. Potts when Ms. Robel arrived, and Ms. Ware immediately began screaming and calling Ms. Robel a "fucking bitch" and other invectives. Ms. Potts eventually called the store's food manager, Bob Bogue. Mr. Bogue and Mr. Vaughn took the two employees further into the back of the store, out of earshot of customers and other employees.

In June 1996, Ms. Robel raised her concerns with her union representative, Ron Banka. Mr. Banka began to discuss these concerns with Ms. Potts, Mr. Bogue, and Mr. Wissink, but was not told of any action taken as a result.

On July 14, 1996, Ms. Robel injured her lower back while working at the deli and filed a timely worker's compensation claim. She was assigned light duty, which involved a four-hour shift standing at a display table outside the deli area and offering samples of food items to customers. On August 1, 1996, while Ms. Robel was at the display table, Ms. Ware and another deli worker laughed and acted out a slip and fall. Ms. Robel testified one of the coworkers yelled, "Oh, I hurt my back, L & I, L & I!" The coworkers also audibly called Ms. Robel a "bitch" and a "cunt" and told customers Ms. Robel had lied about her back and was being punished by "demoing" pizzas.

Ms. Robel reported these incidents to Mr. Banka, the union representative, who met with Mr. Wissink. Mr. Wissink then called a meeting of all deli workers on August 19, 1996. He told the employees that harassment would not be tolerated and could result in termination. Ms. Robel testified that the next day Ms. Ware and others laughed and audibly admonished each other not to harass Ms. Robel. Similar conduct and statements by Ms. Smith and others continued, at times in the presence of Ms. Potts. On September 13, 1996, Ms. Robel took a medical leave of absence.² As she was leaving, Ms. Smith said, "Can you believe it, Linda's gonna sit on her big ass and get paid."

Ms. Robel reported the continued harassment activities to Mr. Banka. On September 20, 1996, Mr. Banka again spoke to Mr. Wissink, who investigated the allegations and eventually fired Tiffany Ware.

Ms. Robel then filed this action against Fred Meyer, alleging disability discrimination, defamation, outrage, negligent infliction of emotional distress, and unlawful retaliation. The superior court denied Fred Meyer's motion for summary judgment. After a trial to the bench, the court entered factual findings outlined above. It also found:

17. Fred Meyer has a policy that requires all employees, inclusive of management personnel, to treat co-workers with dignity and respect.

18. Fred Meyer failed and/or refused to investigate and enforce this policy in response to the verbal and non-verbal harassment of Robel in the work setting, which continued for a period of months subsequent to March 28, 1996.

19. The verbal and non-verbal harassment of Robel in the work setting is imputed to Fred Meyer and causally related to her emotional distress.

....

30. Subsequent to the industrial injury of July 14, 1996, Robel was subjected to verbal and non-verbal harassment in the work setting by co-employees and Fred Meyer's management personnel, notwithstanding a directive to cease. In Wissink's opinion, Smith, Ware, and another employee disregarded that directive.

31. The verbal and non-verbal harassment of Robel in the work setting subsequent to July 14, 1996, was directly or proximately related to her disability and/or Fred Meyer's perception of Robel as disabled.

32. Fred Meyer has a policy that requires a work environment free from any type of discrimination. Fred Meyer failed or refused to enforce this policy in response to the verbal and non-verbal harassment of Robel in the work setting.

33. Fred Meyer has a policy that requires the company and its managers to immediately investigate all complaints of discrimination. Fred Meyer failed or refused to enforce this policy in response to the verbal and non-verbal harassment of Robel in the work setting.

34. Fred Meyer has a policy that retaliation by supervisors against employees is precluded when complaints are raised by employees. Fred Meyer failed and/or refused to enforce this policy in response to the verbal and non-verbal harassment of Robel in the work setting.

35. Fred Meyer's actions and/or inactions in regard to the verbal and non-verbal harassment of Robel in the work setting subsequent to July 14, 1996, was an unlawful act of retaliation in response to her filing and/or pursuing an industrial insurance claim under RCW 51, et seq., a statutorily protected activity.

36. The verbal and non-verbal harassment of Robel in the work setting subsequent to July 14, 1996, constituted an unlawful and adverse employment action against her.

37. There exists a direct causal connection between Robel's protected activity and the adverse employment action.

38. Fred Meyer, through the acts of its managers, participated, authorized, knew and/or should have known of the verbal and non-verbal harassment of Robel in the work setting subsequent to July 14, 1996.

39. The verbal and/or non-verbal harassment of Robel in the work setting subsequent to her industrial injury and disability is imputed to Fred Meyer.

40. Fred Meyer's remedial action to the harassment of Robel was not of such a nature to have been reasonably calculated to end the harassment. Its investigations and termination of Ware without further management corrections were inadequate.

41. The harassment of Robel in the work setting was unwelcomed.

42. Robel was limited to modified, light duty work in the deli as a direct result of her industrial

...