Strong v. Terrell

195 P.3d 977

147 Wn. App. 376

Gina STRONG, Appellant Charlotte Wright, and David Larson, Plaintiffs, v. Jim TERRELL, Marcia Fromhold, in her official capacity as Assistant Superintendent of the Evergreen School District, Nikki Koch, in her official capacity, as the Evergreen School District's Manager, Classified Personnel Services/Substitute Services, Respondents.

No. 35967-7-II.

Court of Appeals of Washington, Division 2.

November 12, 2008.

Eric Thomas Nordlof, Public School Employees of Washington, Auburn, WA, for Appellant.

Michael B. Tierney, John Mathias Stellwagen, Law Office of Michael B. Tierney PC, Mercer Island, WA, for Respondents.

QUINN-BRINTNALL, J.

¶ 1 After finding that she failed to comply with the notice of claim statutes, former RCW 4.96.020 (2001), the Clark County Superior Court dismissed Gina Strong's lawsuit against her supervisor, James Terrell. Strong, a former Evergreen School District employee, sued Terrell, alleging that she was damaged by Terrell's intentional and negligent infliction of emotional distress and violations of her federal civil rights.¹

¶ 2 Because the former notice of claim statute does not apply to suits against government employees, Wright v. Terrell, 162 Wash.2d 192, 170 P.3d 570 (2007), and because Strong was not required to arbitrate her claim against Terrell under the collective bargaining agreement, we reverse that portion of the trial court's summary judgment order that dismissed her emotional distress and civil rights claims against Terrell for failing to comply with the notice of claim statute.

¶ 3 Our review of the record establishes that Strong failed to demonstrate disputed issues of material fact supporting her intentional infliction of emotional distress and civil rights claims, but that she demonstrated disputed issues of material fact as to her negligent infliction of emotional distress claim. Accordingly, we affirm the trial court's summary judgment dismissing Strong's civil rights and intentional infliction of emotional distress claims and remand for trial on her negligent infliction of emotional distress claim only.

FACTS

¶ 4 In 1999, Strong, a member of the Public School Employees of Washington union, was working as a printing press operator in the District print shop that Terrell supervised. Strong claims that Terrell verbally abused her daily by screaming at her and criticizing her work in a sarcastic, unprofessional manner. He pointedly told "blonde jokes," and he made fun of her by ridiculing her with remarks about her personal life, including disparaging the house she purchased, her husband's employment, and telling her that her son was going to find out that she was a "bum" mother because she had placed him in therapy. Strong asserted that Terrell's behavior caused her to vomit and to have anxiety attacks, depression, and heart palpitations.

¶ 5 In June 2002, Strong filed a formal harassment complaint against Terrell with the District. Nicollet Koch, a District employee, investigated the allegations and found that none of the allegations rose to the level of illegal harassment. Based on Koch's investigation, Marcia Fromhold, Assistant Superintendent for Business and Support Services for the District, recommended that Terrell take some additional management training classes to improve his management style. Koch sent a letter to Strong informing her of the results of the investigation. Strong appealed the District's decision, but the District closed the investigation when Strong failed to attend a scheduled meeting to discuss the appeal.

¶ 6 Subsequently, upon further investigation, Fromhold recommended that the District terminate Terrell's employment. On April 12, 2004, Terrell resigned.²

¶ 7 Strong testified that she liked the supervisor who replaced Terrell and that she left District employment in August of 2004 for reasons unrelated to her issues with Terrell.

¶ 8 On July 23, 2004, Strong sued Terrell and Fromhold. And on July 23, 2004, Strong filed a notice of tort claims with the District, but she did not sign the notice. In September 2004, Strong amended the notice of claim by adding her signature. On November 23, 2004, Strong filed a second separate complaint with identical issues against the same defendants and added Koch as a defendant as well as Charlotte Wright and David Larson as plaintiffs. On October 21, 2005, the trial court dismissed Wright and Larson as parties and consolidated Strong's remaining identical claims.³

¶ 9 Subsequently, Terrell filed a motion for summary judgment that the trial court granted on substantive grounds, finding that Strong failed to raise disputed issues of material fact related to her claims of negligent and intentional emotional distress and that Strong failed to identify a violation of an existing constitutional right to support her 42 U.S.C. § 1983 claim. In addition, the trial court rejected Terrell's notice of claim arguments regarding Strong's first complaint, noting that Terrell had not previously filed a motion regarding that complaint but that, if he had, the trial court "would grant the Motion as to that previous filing." 3 Clerk's Papers at 576. Strong timely appeals.

ANALYSIS

Notice of Claims Statute: Former RCW 4.96.020

¶ 10 Initially, the trial court noted that Terrell had not filed a motion to dismiss for Strong's failure to file a notice of tort claims prior to filing her first complaint. But the trial court held that, had Terrell done so, it would have granted the motion because Strong had not complied with the notice of claims statute, former RCW 4.96.020(4), and would have dismissed her claims against Terrell on that basis. Here, the trial court consolidated Strong's first and second complaints. Strong filed a notice of claims before she filed her second complaint.

¶ 11 Former RCW 4.96.020(4) provided:

No action shall be commenced against any local governmental entity for damages arising out of tortious conduct until sixty days have elapsed after the claim has first been presented to and filed with the governing body thereof. The applicable period of limitations within which an action must be commenced shall be tolled during the sixty-day period.

But our Supreme Court recently held that this notice of claims statute, in effect prior to June 7, 2006, did not apply to claims against individual government employees such as Terrell. See Bosteder v. City of Renton, 155 Wash.2d 18, 56-57, 59, 117 P.3d 316 (2005) (plurality), superseded by Wright, 162 Wash.2d 192, 170 P.3d 570.⁴ Thus, the notice of claims statute did not bar Strong's claims against Terrell and the trial court could not base its decision to dismiss the case on her failure to comply with the notice of claims statute.

Summary Judgment

¶ 12 Strong next argues that the trial court also erred when it granted Terrell summary judgment because she presented sufficient disputed facts requiring that a jury decide the merits of her claims.⁵ We agree in part.

¶ 13 We review summary judgment orders de novo, performing the same inquiry as the trial court. Hisle v. Todd Pac. Shipyards Corp., 151 Wash.2d 853, 860, 93 P.3d 108 (2004). Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Hisle, 151 Wash.2d at 861, 93 P.3d 108.

¶ 14 The nonmoving party is entitled to have the reviewing court view the evidence in a light most favorable to her and against the moving parties. Herron v. Tribune Publ'g Co., 108 Wash.2d 162, 170, 736 P.2d 249 (1987). But statements of ultimate fact and conclusory statements of fact will not defeat a summary judgment motion. Grimwood v. Univ. of Puget Sound, Inc., 110 Wash.2d 355, 359-60, 753 P.2d 517 (1988). In addition, the party opposing a motion for summary judgment, here Strong, may not rely on speculation, argumentative assertions that unresolved factual issues remain, or on having her affidavits considered at face value. Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wash.2d 1, 13, 721 P.2d 1 (1986). She must set forth specific facts rebutting the moving parties' contentions and disclose that a genuine issue as to a material fact exists. Seven Gables, 106 Wash.2d at 13, 721 P.2d 1. We review each of Strong's claims below.

A. Strong's Intentional Infliction of Emotional Distress Claim

¶ 15 To prevail on a claim for the tort of intentional infliction of emotional distress, also known as outrage,⁶ Strong must prove that (1) Terrell engaged in extreme and outrageous conduct, (2) he intentionally or recklessly inflicted emotional distress on Strong, and (3) it actually resulted in severe emotional distress to Strong. Kloepfel v. Bokor, 149 Wash.2d 192, 195-96, 66 P.3d 630 (2003) (citing Reid v. Pierce County, 136 Wash.2d 195, 202, 961 P.2d 333 (1998)). Our Supreme Court adopted these elements from the Restatement (Second) of Torts § 46 (1965). Kloepfel, 149 Wash.2d at 196, 66 P.3d 630 (citing Grimsby v. Samson, 85 Wash.2d 52, 59-60, 530 P.2d 291 (1975)). Although these elements are generally factual questions for the jury, a trial court faced with a summary judgment motion must first determine whether reasonable minds could differ on whether the conduct was sufficiently extreme to result in liability. Robel v. Roundup Corp., 148 Wash.2d 35, 51, 59 P.3d 611 (2002).

¶ 16 Any claim of outrage must be predicated on behavior "`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.'" Kloepfel, 149 Wash.2d at 196, 66 P.3d 630 (emphasis omitted) (quoting Grimsby, 85 Wash.2d at 59, 530 P.2d 291). But the tort "`"does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." In this area[,] plaintiffs must necessarily be hardened to a certain degree of rough language, unkindness and lack of consideration.'" Kloepfel, 149...