Emeson v. Dep't of Corr.

• Decision Date: 03 May 2016
• Docket Number: No. 46157–9–II.,46157–9–II.
• Citation: 376 P.3d 430,194 Wash.App. 617
• Parties: Dezmond EMESON, Appellant, v. DEPARTMENT OF CORRECTIONS, Respondent.
• Court: Washington Court of Appeals

194 Wash.App. 617

376 P.3d 430

Dezmond EMESON, Appellant

v.DEPARTMENT OF CORRECTIONS, Respondent.

No. 46157–9–II.

Court of Appeals of Washington, Division 2.

May 3, 2016.

Thaddeus Phillip Iv Martin, Attorney at Law, Lakewood, WA, for Appellant.

Garth Ahearn, Office of the Attorney General, Tacoma, WA, for Respondent.

LEE, J.

Dezmond Emeson, a former employee of the Department of Corrections (DOC); appeals the superior court's dismissal of his case on summary judgment. Prior to filing this suit, Emeson filed a suit in federal court, which alleged that DOC failed to reasonably accommodate his disability,¹ created a hostile work environment, exercised disparate treatment towards him, retaliated against him, and wrongfully terminated him in violation of Title VII of the Civil Rights Act and 42 U.S.C. § 1981. In the federal case, DOC moved for summary judgment, and Emeson moved for dismissal. Pursuant to Western District of Washington Rule of Civil Procedure 7(b)(2), the federal court granted summary judgment to DOC and dismissed Emeson's claims with prejudice.

¶ 2 In this case, Emeson also alleged DOC failed to reasonably accommodate his disability, created a hostile work environment, exercised disparate treatment towards him, retaliated against him, and wrongfully terminated him in violation of chapter 49.60 RCW and state common law. In addition, Emeson claimed that DOC is liable for invasion of privacy for the statements contained in a Facebook post made by a DOC employee referencing Emeson having a disability. His state law claims were premised on the same events that precipitated his federal suit. The superior court granted summary judgment to DOC on all of Emeson's claims, finding res judicata precluded Emeson's claims that DOC created a hostile work environment, exercised disparate treatment towards him, retaliated against him, and wrongfully terminated him. The superior court also found that Emeson had not presented a prima facie case for his reasonable accommodation claim. And, finally, the superior court found that Emeson's invasion of privacy claim was brought after the statute of limitations had expired and was not imputable to DOC.

¶ 3 On appeal, Emeson contends the superior court erred dismissing his claims on res judicata grounds because (1) the state law claims were not brought in the federal action and DOC did not show that the claims “ ‘could have been brought’ ” in the federal action; (2) applying res judicata to bar his claims “offend[s] the public policies of RCW 49.60 et [ ] seq. ”; and (3) DOC did not establish the elements of res judicata were present. Br. of Appellant at 41. Emeson also contends the superior court erred in dismissing his invasion of privacy claim because the wrong statute of limitations was applied and the Facebook post should be considered within the scope of employment.

¶ 4 We hold that the doctrine of res judicata precludes Emeson's claims against DOC for failure to reasonably accommodate, hostile work environment, disparate treatment, retaliation, and wrongful termination. We further hold that DOC is not liable for invasion of privacy because the employee's Facebook post was not made within the scope of her employment with DOC. Accordingly, we affirm the superior court's summary judgment dismissal of Emeson's claims against DOC.

FACTS

A. Background Facts²

¶ 5 Dezmond Emeson worked as a community corrections officer for DOC. After several disagreements and confrontations with other DOC personnel regarding Emeson's job performance, Emeson was placed on administrative leave on July 10, 2009, and DOC's Regional Human Resources consultant requested a “fitness for duty” evaluation. CP at 185. Dr. Bill Ekemo, who conducted the evaluation, opined that Emeson was not able to “perform some of the essential functions of his job at expected standards.” CP at 193.

After Dr. Ekemo's evaluation, DOC elected to try to find a reasonable accommodation instead of seeking a disability separation. Emeson later accepted a position as an “Office Assistant 3” as a reasonable accommodation. Emeson began his new job as an office assistant on April 26, 2010.

¶ 7 On May 13, 2010, Sandy Phelps, Emeson's direct supervisor, posted the following on her Facebook page: “Haven't heard anything about the RIF. Just dealing with the one person we all know, and a CCO who is working the reception due to a reasonable accommodation from Parkland. :0.” CP at 733. On May 18, the Secretary of DOC became aware of the Facebook post. On May 24, Emeson and his union representative submitted an “Official Grievance Form” to DOC. CP at 931. The Official Grievance cited Phelps's Facebook post from May 13th and another conflict arising in a meeting with superiors on the day the grievance was filed. DOC sent Phelps a letter the following day reprimanding her for the Facebook post, reminding her of the ethical standards she agreed to abide by, and suggesting further training opportunities for her to improve as a supervisor.

¶ 8 Over the course of the following seven months, Emeson had a contentious relationship with Phelps and several other supervisors and managers. On January 29, 2011, Emeson was notified that he was being separated from his position with DOC for inappropriate and/or unprofessional behavior.

B. Federal Lawsuit

¶ 9 On July 1, 2011 Emeson filed a complaint in the federal District Court for the Western District of Washington. CP at 1000. In his federal complaint, Emeson alleged DOC and DOC supervisors or managers violated Title VII of the Civil Rights Act and 42 U.S.C. § 1981. Emeson alleged the federal violations occurred when DOC “failed to take reasonably adequate action to correct pervasive and severe harassment based on race, national origin, and disability, hostile environment, and physically harmful and disparate treatment of an African–American employee of Nigerian decent who was terminated in retaliation for engaging in protected activity.” CP at 980 (plaintiff's complaint for damages in federal court).

¶ 10 On June 12, 2012, DOC moved for summary judgment dismissal on all claims.³ On June 21, Emeson moved to voluntarily dismiss his case without prejudice under Fed. R. Civ. P. 41. Emeson did not respond to DOC's motion for summary judgment. The federal court ruled that Emeson had not carried his burden on summary judgment to show that there were issues of material fact. The federal court also ruled that “Emeson's failure to file a meaningful response is” “ ‘considered by the court as an admission that the motion has merit.’ ” CP at 1003 (citing Western District of Washington Rule of Civil Procedure 7(b)(2)). Consequently, the federal court denied Emeson's motion for voluntary dismissal to the extent it sought a dismissal without prejudice and granted DOC's motion for summary judgment, dismissing Emeson's case with prejudice. Emeson did not appeal the federal court's order dismissing his case with prejudice.

C. State Lawsuit

¶ 11 On February 8, 2013, Emeson filed a complaint for damages against DOC in Pierce County Superior Court. Emeson then filed an amended complaint alleging DOC “failed to reasonably accommodate Plaintiff's disabilities, created and perpetuated a hostile environment and engaged in disparate treatment based on plaintiff's race/national origin and disability,” and “wrongfully terminated Plaintiff.” CP at 994 (Plaintiff's Amended Complaint for Damages in state court). Emeson sought relief for “Invasion of Privacy”; “Failure to Provide Reasonable Accommodation (RCW 49.60 et seq. )”; “Hostile Work Environment and Disparate Treatment Based on Disabilities, Race, National Origin (RCW 49.60 et [ ] seq. )”; “Unlawful Retaliation based on complaints of discrimination based on race, national origin and disability (RCW 49.60 et [ ] seq. )”, and “Actual Discharge.” CP at 996–98 (boldface omitted).

¶ 12 DOC filed a summary judgment motion to dismiss all of Emeson's state law claims. The superior court ruled Emeson's hostile work environment, disparate treatment, retaliation, and wrongful termination claims were precluded under the doctrine of res judicata based on the federal court's prior dismissal of Emeson's claims. The superior court also ruled Emeson had failed to present a prima facie case establishing his reasonable accommodation claim. Finally, the superior court ruled against Emeson on his invasion of privacy claim on the grounds that it was brought after the statute of limitations had expired and the conduct was not imputable to DOC. Consequently, the superior court granted summary judgment, dismissing all of Emeson's claims. Emeson appeals.

ANALYSIS

A. Standard of Review

¶ 13 We review a superior court's grant of summary judgment de novo, engaging in the same inquiry as the superior court. Osborn v. Mason County, 157 Wash.2d 18, 22, 134 P.3d 197 (2006). Summary judgment is proper where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c) ; Marincovich v. Tarabochia, 114 Wash.2d 271, 274, 787 P.2d 562 (1990). We view the facts in the light most favorable to Emeson as the non-moving party and affirm summary judgment against him only if, based on all of the evidence, reasonable people could not reach a different conclusion. Marincovich, 114 Wash.2d at 274, 787 P.2d 562.

B. Res Judicata

¶ 14 The superior court summarily dismissed Emeson's hostile work environment, disparate treatment, retaliation, and wrongful termination claims under the doctrine of res judicata. We agree and also hold that Emeson's claims alleging a failure to reasonably accommodate is precluded under the doctrine of res judicata.⁴

¶ 15 Whether res judicata bars an action is a question of law we review de novo. Ensley v. Pitcher, 152 Wash.App. 891, 899, 222 P.3d 99 (2009), review denied, 168 Wash.2d 1028, 230 P.3d 1060 (2010). Res judicata is a doctrine of claim preclusion that bars relitigation of a claim that has been determined by a final judgment. Storti v....