Lambert v. Morehouse

• Decision Date: 19 January 1993
• Docket Number: No. 30430-5-I,30430-5-I
• Parties: , 61 Fair Empl.Prac.Cas. (BNA) 50, 8 IER Cases 442 John LAMBERT, Appellant, v. Margaret MOREHOUSE, David O'Brien, Cindy Cho, John Doe Cho, Kathryn Spencer, Fredericka Gardonyi, and Group Health Cooperative of Puget Sound, Respondents.
• Court: Washington Court of Appeals

Page 500

68 Wn.App. 500

843 P.2d 1116, 61 Fair Empl.Prac.Cas. (BNA)

50, 8 IER Cases 442

John LAMBERT, Appellant, v. Margaret MOREHOUSE, David O'Brien, Cindy Cho, John Doe Cho Kathryn Spencer, Fredericka Gardonyi, and Group Health Cooperative of Puget Sound, Respondents.

No. 30430-5-I.

Court of Appeals of Washington Division 1.

Jan. 19, 1993.

Norman Cohen, Cohen & Keith-Miller, Inc., P.S., Seattle, for appellant.

Gary L. Ikeda, Rick D. Woods, and Sarah B. Yates, Seattle, for respondents.

PEKELIS, Judge.

In this multiclaim suit against several defendants, plaintiff John Lambert appeals the trial court's two summary judgment orders denying his claims for wrongful discharge, race discrimination, misrepresentation, negligent investigation, tortious interference, and defamation. Lambert contends that material issues of fact pertaining to each claim preclude summary judgment. We affirm.

I Facts

John Lambert was employed by defendant Group Health Cooperative (Group Health) from March 14, 1977 to December 22, 1988, at which time his employment was terminated. When the incidents leading to the termination took place, Lambert, an African-American, was employed as Group Health's Manager of Supply and Distribution.

On March 15, 1988, Fredericka Gardonyi, a Group Health employee under Lambert's supervision, complained to Group Health's Human Resources Administrator, Sue Alford, that Lambert had sexually harassed her. After investigating the matter and speaking with witnesses, Alford reported her findings to Lambert's supervisor, David O'Brien, the Director of Administrative Services. Both concluded that Lambert's conduct did not constitute sexual harassment, but that Lambert had acted inappropriately. O'Brien issued Lambert a letter of reprimand advising him that any further incidents could subject him to discipline up to and including termination and supplied him with a copy of Group Health's policy prohibiting sexual harassment.

Gardonyi also filed a complaint about Lambert's conduct with the state Human Rights Commission. In connection with Gardonyi's complaint, Kathy Spencer, Group Health's Assistant Director of the Human Resources Division, reviewedAlford's report and talked with Lambert and O'Brien. Agreeing that there was inadequate evidence to conclude that Lambert had sexually harassed Gardonyi, Spencer nonetheless also concurred with Alford and O'Brien's finding that Lambert had acted inappropriately toward Gardonyi. Spencer advised the Human Rights Commission of the action Group Health had taken, and the Commission entered a "no reasonable cause" finding.

Eight months after the Gardonyi incident, on November 25, 1988, Lambert's secretary, Cindy Cho, complained to Margaret Morehouse, Group Health's Administrator of Compensation and Human Resource Services, that Lambert had sexually harassed her. Cho told Morehouse that over a period of several weeks Lambert had repeatedly subjected her to inappropriate physical and verbal conduct of a sexual nature, despite her protestations, threatened to fire her if she complained to anyone of his behavior, and in fact fired her when she complained to another employee in the Human Resources Division. Morehouse reported the matter to O'Brien, who placed both Lambert and Cho on paid administrative leave pending an investigation.

After conducting an investigation that included interviewing 27 employees, Morehouse offered Lambert an opportunity to respond before she prepared her report. The parties dispute the nature of the ensuing events between Morehouse, Lambert, and Lambert's attorney. Apparently, Morehouse and Lambert's attorney disagreed about the manner in which the investigation was being conducted. It is undisputed, however, that Lambert did not obtain the details of Cho's complaint and that, although invited to do so, Lambert did not meet with Morehouse or respond to the accusation.

Morehouse reported the results of her investigation to O'Brien, who reviewed the report and then telephoned Lambert. Again the parties dispute the nature of the ensuing events between O'Brien, Lambert, and Lambert's attorney. However, it is undisputed that owing to the advice of his attorney, Lambert did not meet with O'Brien or respond.

O'Brien then terminated Lambert's employment. O'Brien considered not only the Gardonyi and Cho incidents, but also several other allegations and complaints of sexual harassment that had been lodged against Lambert. These included a charge made in 1988 by Lambert's former secretary, Cathy Avery, included in Morehouse's report, and complaints made in 1982 by warehouse employees, from which the Human Resources Division had concluded that Lambert had engaged in sexual harassment. The 1982 complaints had led to restrictions of Lambert's authority and a directive to Lambert that he review Group Health's sexual harassment policies.

Lambert initiated the 4-step grievance process provided for in Group Health's Policy and Procedure Manual for "Grievances of Non-Union Employees." The first step involved bringing the situation to the attention of the immediate supervisor. O'Brien considered and denied the first-step grievance. Lambert proceeded to the second step, submitting a written grievance to O'Brien's supervisor, which was also denied. Lambert did not pursue the grievance process any further.

Instead, Lambert filed the present action against Group Health, O'Brien, Morehouse, Spencer, Cho, and Gardonyi. Lambert asserted claims for wrongful discharge, negligent investigation, misrepresentation, tortious interference, defamation, and race discrimination.

Defendants brought two motions for partial summary judgment. The trial court granted both motions, effectively dismissing Lambert's entire case. Lambert's motion for reconsideration was denied on June 25, 1991.

Lambert appeals, assigning error to the trial court's summary judgment for each defendant on each issue.

II Negligent Investigation

Lambert contends that dismissal of his negligence claim was erroneous because he presented evidence of Group Health's negligent investigation of the sexual harassment complaints.

As a threshold matter, we must determine whether such a cause of action exists in the employment context. In Lawson v. Boeing Co., 58 Wash.App. 261, 792 P.2d 545 (1990), review denied, 116 Wash.2d 1021, 811 P.2d 219 (1991), this court declined to decide whether the employer owed a duty to conduct a reasonable investigation prior to discharge. Lawson, at 265, 792 P.2d 545. Assuming such a duty existed, the Lawson court held that plaintiff had introduced no evidence, expert or otherwise, to establish the standard of reasonable care or to show a breach thereof. Lawson, at 266, 792 P.2d 545.

Confronted squarely with the issue in this case, ¹ we conclude that Washington courts have not and should not recognize a cause of action for negligent investigation. With the exception of Montana, other jurisdictions have "uniformly rejected such claims." 3A Arthur Larson & Lex K. Larson, Employment Discrimination § 119.52, at 26-97 to 26-98 (1991) (citing cases from the 7th Circuit, the Federal District of Kansas, Nebraska, and Oregon); see also Gossage v. Little Caesar Enters., Inc., 698 F.Supp. 160 (S.D.Ind.1988); Eklund v. Vincent Brass & Alum. Co., 351 N.W.2d 371, 379 (Minn.Ct.App.1984).

Plaintiff relies on a decision of the federal district court for Michigan and two decisions from Montana, each of which recognized a tort claim for negligent investigation. See Chamberlain v. Bissell Inc., 547 F.Supp. 1067 (W.D.Mich.1982); Flanigan v. Prudential Fed. Savings & Loan Ass'n, 221 Mont. 419, 720 P.2d 257 (1986); Crenshaw v. Bozeman Deaconess Hosp., 213 Mont. 488, 693 P.2d 487 (1984). ² However, as pointed out inGossage v. Little Caesar Enters., Inc., supra, the Federal District Court's opinion in Chamberlain has been questioned, criticized, and not followed by several courts. 698 F.Supp. at 163. Moreover, Michigan authority subsequent to the federal district court's opinion in Chamberlain has repeatedly declined to impose upon employers an extra-contractual duty in applying policies and procedures. See, e.g., Struble v. Lacks Indus., 157 Mich.App. 169, 403 N.W.2d 71, 74 (1986) (per curiam). The Montana decisions are distinguishable because Montana, unlike Washington, recognizes an implicit covenant of good faith and fair dealing in at-will contracts of employment. See Heltborg v. Modern Machinery, 244 Mont. 24, 795 P.2d 954, 960-61 (1990) (declining to "impose upon the employer a duty to use reasonable care in decision-making, based upon a theory of negligence," beyond the duty not to breach the covenant of good faith and fair dealing) ³; accord Gossage, 698 F.Supp. at 163. Thus, we find Lambert's authority infirm at best.

This court declined to recognize a cause of action for negligent investigation in the context of an allegedly defective prosecutorial investigation of an arson. Dever v. Fowler, 63 Wash.App. 35, 44, 816 P.2d 1237 (1991), review denied, 118 Wash.2d 1028, 828 P.2d 563 (1992). The Dever court, reasoning that such a cause of action "would impair vigorous prosecution and have a chilling effect upon law enforcement," held that plaintiff had failed to state a claim upon which relief could be granted. Dever, at 44-45, 816 P.2d 1237.

As a matter of policy, we conclude that tort liability for negligent investigation is equally inappropriate in the employment relationship. To the extent an employee has an employment contract requiring specific reasons for dismissal, then the employer must conduct an adequate investigation or be liable for breach of that contract. See Gaglidari v. Denny's Restaurants, 117 Wash.2d 426, 437, 815 P.2d 1362 (1991). Thus, a negligence claim merely reasserts, in a tort context, the claim that the plaintiff's discharge breached contractual promises arising from an employer's disciplinary policies and procedures. "It does not add anything to this inquiry...