Larose v. King Cnty.

• Decision Date: 19 March 2019
• Docket Number: No. 50858-3-II,50858-3-II
• Citation: 8 Wash.App.2d 90,437 P.3d 701
• Court: Washington Court of Appeals
• Parties: Sheila LAROSE, Appellant/Cross-Respondent, v. KING COUNTY, Washington, and Public Defender Association aka The Defender Association (TDA), Respondent/Cross-Appellants.

8 Wash.App.2d 90

437 P.3d 701

Sheila LAROSE, Appellant/Cross-Respondent,

v.KING COUNTY, Washington, and Public Defender Association aka The Defender Association (TDA), Respondent/Cross-Appellants.

No. 50858-3-II

Court of Appeals of Washington, Division 2.

Filed March 19, 2019

Farron Curry, Christopher Holm Howard, Schwabe Williamson & Wyatt PC, 1420 5th Ave. Ste. 3400, Seattle, WA, 98101-2339, for Respondent.

James Wilson Kytle, Mary Ruth Mann, Mann & Kytle PLLC, 200 1st Ave. W Ste. 550, Seattle, WA, 98119-4204, for Appellant/Cross-Respondent.

Patricia Anne Eakes, Damon Clay Elder, Calfo Eakes & Ostrovsky PLLC, 1301 2nd Ave. Ste. 2800, Seattle, WA, 98101-3808, for Respondent/Cross-Appellants.

PUBLISHED OPINION

Maxa, C.J.¶1 Sheila LaRose appeals the trial court’s dismissal of her hostile work environment, negligence, and disability discrimination claims against the Public Defender Association (PDA) and King County.

¶2 LaRose was a public defender for PDA, although eventually the County replaced PDA as her employer. PDA assigned her to represent "Mr. Smith"¹ on a charge of felony stalking. During the representation, Smith began making frequent, unwanted, and inappropriate phone calls to LaRose at work. LaRose notified her supervisors, but she decided to continue to represent Smith and her supervisors did not remove her from the case. After the representation ended, Smith’s harassing and stalking behavior escalated until he was arrested and charged for his conduct. LaRose subsequently was diagnosed with post-traumatic stress disorder (PTSD), was placed on disability, and ultimately was discharged from employment because she was unable to work as a public defender.

¶3 LaRose filed a lawsuit against PDA and the County, alleging among other claims that her supervisors’ handling of the situation with Smith had created a hostile work environment in violation of the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW, that PDA and the County were negligent in failing to protect her from Smith’s harassment, that PDA and the County deliberately injured her, and that the County discriminated against her based on her disability. The trial court dismissed the hostile work environment claim under CR 12(b)(6) and granted summary judgment in favor of PDA and the County on LaRose’s remaining claims. LaRose appeals those rulings.

¶4 Before dismissing LaRose’s claims, the trial court ruled on summary judgment that the County was vicariously liable for PDA’s conduct. The County cross-appeals that ruling.

¶5 We hold that (1) the trial court erred in dismissing LaRose’s WLAD claim because under certain circumstances, an employer may be subject to liability for a hostile work environment claim based on a nonemployee’s harassment of an employee in the workplace; (2) the trial court erred in ruling that the Industrial Insurance Act (IIA), title 51 RCW, bars LaRose’s negligence claims because a genuine issue of fact exists regarding whether her PTSD and related injuries constituted a compensable "injury" under the IIA; (3) LaRose did not present evidence that created a genuine issue of material fact that the IIA bar is inapplicable under RCW 51.24.020 based on her allegation that PDA and the County deliberately injured her; and (4) LaRose’s disability discrimination claim fails because she did not present evidence that created a genuine issue of material fact regarding that claim. In addition, we hold that the trial court erred in ruling that the County is vicariously liable for PDA’s conduct.

¶6 Accordingly, we reverse the trial court’s order dismissing LaRose’s hostile work environment claims and negligence claims, but we affirm the trial court’s order dismissing LaRose’s disability discrimination claim. And we reverse the trial court’s ruling that the County is vicariously liable for PDA’s conduct. We remand for further proceedings consistent with this opinion.

FACTS

¶7 PDA operated as The Defender Association (TDA) and served as a contracted non-profit public defense law firm for the County from 1969 to June 30, 2013.² In July 2013, the County ended its contract with PDA and began directly administering the public defense program. Most PDA employees, including LaRose, became County employees effective July 1, 2013.

¶8 LaRose was employed by PDA as an attorney public defender beginning in 2009. She began her first rotation in the felony division in July 2012. While at PDA, LaRose did not receive any training, policies, or procedures for responding to sexual harassment or threats of violence from clients.

Prior Smith Incident

¶9 In June 2012, PDA public defender Rebecca Lederer was representing Smith on a felony stalking charge. Smith left Lederer a voicemail in which he repeatedly said that he loved her. Lederer asked her supervisor, Daron Morris, for permission to withdraw from Smith’s case and for the case to be reassigned because she felt uncomfortable representing Smith. Morris recommended that the case be reassigned to another attorney because there was a good reason to believe that Smith would have trouble maintaining the proper professional boundary with his attorney if Lederer continued to represent him.

¶10 Lederer chose to withdraw and suggested that Smith be reassigned to a male attorney. Morris transferred the case to a male attorney.

Smith’s Harassment of LaRose

¶11 On October 31, 2012, LaRose was assigned to represent Smith on a new charge of felony stalking. LaRose was not given any information about Smith’s history of stalking professional women or his interaction with Lederer and was not warned of any potential danger in representing him.

¶12 In late March 2013, during LaRose’s representation, Smith began to make repeated sexually motivated, harassing phone calls to LaRose at work. Smith told LaRose that he loved her, wanted to marry her, and wanted to be with her. By April, Smith was calling LaRose 10 to 20 times a day and making more disturbing sexual and offensive comments.

¶13 In April, LaRose met with her supervisor, Ben Goldsmith, and described Smith’s harassing calls. She expressed her concerns about the calls and the fact that Smith would not stop calling despite her demand that he do so. LaRose stated that she thought she needed to get off the case. Goldsmith "said ‘Okay,’ in an irritated, dismissive, angry, impatient tone." Clerk’s Papers (CP) at 177. A few days later after giving the matter some thought, LaRose told Goldsmith that she would try to finish the case because she was almost done with the representation. Goldsmith again said "Okay." CP at 179.

¶14 After that initial conversation, LaRose repeatedly went to Goldsmith and told him that the calls were continuing and getting worse and that she was concerned and worried about them. But she did not request that she should be taken off the case. And neither Goldsmith nor anyone else offered to reassign the case to another attorney.

¶15 In May, Smith’s calls were continuing at the same rate. LaRose also received a handwritten letter from Smith with intrusive and sexually motivated content that frightened her. On May 24, LaRose met with Goldsmith and Leo Hamaji, another supervisor, to discuss the letter and Smith’s obsessive and offensive communications with her. Goldsmith and Hamaji did not remove LaRose from the case, relieve her from the obligation to be in frequent contact with Smith, or take steps to stop Smith from contacting her. LaRose also did not ask to be removed from the case.

¶16 On June 4, LaRose met again with Hamaji about the unwanted harassing phone calls. She described the nature of the calls, told him that they were becoming more inappropriate, and stated that she was having trouble sleeping. Hamaji told LaRose to ignore the calls. The constant offensive calls continued through June.

¶17 In July 2013, LaRose sought permission from the superior court to withdraw from representation of Smith pursuant to PDA policy when Smith requested a motion to withdraw his guilty plea. LaRose was allowed to withdraw on July 26. By the end of July, Smith’s calls were continuing and escalating. LaRose went to Goldsmith at least three times and informed him that the calls were continuing. Twice he said nothing, and the third time he said, "I don’t know – call the cops."

¶18 Smith continued to make offensive calls and comments after LaRose’s representation ended. He pursued contact with LaRose inside and outside the office. Smith was released from custody in November 2013 and began following and making contact with LaRose in public. And the incessant calls continued. LaRose let Hamaji know that the unwanted sexual calls at work had not stopped.

¶19 LaRose estimated that she received over 1,000 calls from Smith between March 2013 and February 2014.

¶20 In February 2014, Smith jumped out at LaRose in the parking garage, left lingerie on her car, left literature in her mailbox, and came repeatedly to her house. He hid in her backyard, appeared at her bedroom window in the middle of the night, and broke a bedroom window. He sent messages about seeing LaRose, her daughter, and a man who came to her home. LaRose sent emails to her County supervisors detailing these contacts.

¶21 Smith finally was arrested on February 21 and was charged with felony stalking. LaRose testified as the complaining witness at his trial. Smith was tried and convicted in January 2015 and was sentenced to seven years in confinement.

¶22 LaRose experienced a high level of stress and anxiety due to Smith’s stalking behavior. She ultimately was diagnosed with major depressive disorder, generalized anxiety disorder, and PTSD. She was first diagnosed with PTSD in March 2015. LaRose requested medical leave in 2015 because her work continued to provoke stress and anxiety. The County granted her request. The County eventually terminated LaRose in 2017 when she was unable to continue working as a public defender.

LaRose Lawsuit and Dismissal of Claims

¶23 LaRose filed a lawsuit against PDA and the County,...