Lawson v. Boeing Co.

• Decision Date: 18 June 1990
• Docket Number: No. 25480-4-I,25480-4-I
• Citation: 792 P.2d 545,58 Wn.App. 261
• Court: Washington Court of Appeals
• Parties: , 61 Fair Empl.Prac.Cas. (BNA) 101 Charles LAWSON, Appellant, v. The BOEING COMPANY, Malcolm Stapmer, Lou Hustead, James Wright, Orville Anderson, Henry (Hank) Gutardi, John Dietz, Jan Ross, Mary Boner, Shirley Moen, Amy Thomson, Sophia Garcia, Theresa Bogart, Connie Gregerson, Orivilla Damschen, Dorothy Miller, Respondents.

Page 261

58 Wn.App. 261

792 P.2d 545, 61 Fair Empl.Prac.Cas. (BNA) 101

Charles LAWSON, Appellant, v. The BOEING COMPANY, Malcolm Stapmer, Lou Hustead, James Wright, Orville Anderson, Henry (Hank) Gutardi, John Dietz Jan Ross, Mary Boner, Shirley Moen, Amy Thomson, Sophia Garcia, Theresa Bogart, Connie Gregerson, Orivilla Damschen Dorothy Miller, Respondents.

No. 25480-4-I.

Court of Appeals of Washington Division I.

June 18, 1990.

Norman W. Cohen, Cohen & Keith-Miller, Seattle, for appellant.

Valerie Hughes, Bellevue, for respondents.

FORREST, Judge.

Charles Lawson appeals from the orders granting summary judgments in favor of the respondents on his claims of breach of employment contract, negligence defamation, tortious interference, and infliction of emotional distress, contending that there were genuine issues of material fact as to each of these claims. We affirm the majority of the orders, but reverse the orders granting summary judgment in favor of the complaining employees on the claims of defamation and tortious interference.

In January 1984, a number of Boeing female employees complained that Lawson, a general supervisor, had made sexually explicit comments, had propositioned them, and had touched them in improper manners. Lawson submitted a written statement responding to and denying the complaints. Boeing suspended Lawson without pay, pending completion of an investigation. Boeing's equal opportunity office interviewed 12 employees regarding Lawson's conduct. That office concluded that Lawson was "found to be in violation of Company rules--unacceptable conduct; specifically, sexual harassment and unacceptable management judgment" and offered Lawson the choice between demotion to a non-supervisory position or voluntary termination. He chose the non-supervisory position. ¹

Lawson brought this action against Boeing, the employees who accused him of harassment (the "complaining employees"), ² and the employees who investigated the complaints (the "investigating employees"). ³ Over time, the defendants brought eight motions for partial summary judgment, seeking the dismissal of the 18 causes of action alleged in Lawson's complaint. Lawson stipulated to the dismissal of three causes of action (fraud, misrepresentation and civil conspiracy) and did not oppose the motion as to four others (RCW 49.44, RCW 19.86, RCW 4.24.350, abuse of process). ⁴ He contested the other motions, asserting that there were issues of material fact. Eventually all of Lawson's causes of action were dismissed on summary judgment, and he appeals.

CONTRACT CLAIM

Lawson contends that the court erred in dismissing his claim that Boeing breached its implied employment contract with him. He contends that there were issues of material fact regarding Boeing's "promises" that he was "guaranteed" his job so long as he maintained his position "on the totem." He relies upon Thompson v. St. Regis Paper Co. ⁵ for his position that the "promises" made by Boeing created an enforceable employment contract that prevented his demotion without cause.

The dismissal of Lawson's breach of contract claim was proper. The Thompson court held:

[I]f an employer, for whatever reason, creates an atmosphere of job security and fair treatment with promises of specific treatment in specific situations and an employee is induced thereby to remain on the job and not actively seek other employment, those promises are enforceable components of the employment relationship.

Thompson, 102 Wash.2d at 230, 685 P.2d 1081 (emphasis in original). The court has since held that the question of whether a written policy is a promise of specific treatment is one for the court. ⁶ Lawson has not presented evidence of any written statements of policy that could be interpreted as promises of specific treatment. He has merely alleged that Boeing made repeated oral promises that so long as job performance met a certain level he would retain his supervisory position. These statements are not sufficient to create an issue of material fact as to the existence of an enforceable promise of continued employment in a specific job. He remained an "at will" employee. Oral assurances of continued employment and an employee's foregoing of other employment opportunities do not create an implied employment contract. ⁷ Nor was there any showing of actual or apparent authority by the persons making the statements to bind Boeing to an employment contract. Finally, a contract of continued employment would not insulate Lawson from demotion or termination for indulging in sexual harassment. Summary judgment was appropriate.

NEGLIGENCE CLAIM

Lawson contends that the court erred in dismissing his negligence claims against Boeing arising out of its investigation of the complaints against him. Boeing asserts two defenses to this claim:

(1) that the negligence claim was properly dismissed because the Industrial Insurance Act bars any cause of action against an employer or fellow employees arising out of an unintentional injury; ⁸

(2) there was insufficient evidence of the breach of any duty of care to avoid summary judgment.

The Industrial Insurance Act defense is a matter of first impression in Washington and has extremely significant policy implications. Although it was apparently adopted by the trial court, we decline to address that issue because of the minimal briefing on this issue and because the second ground supports the trial court's ruling.

There was insufficient evidence of negligence to create a material issue of fact as to negligent investigation. Assuming, without deciding, that Boeing owed Lawson a duty to conduct a reasonable investigation, there is no evidence either to establish the standard of reasonable investigation or to show a breach thereof. The record is devoid of testimony, expert or otherwise, as to the proper method to conduct an investigation of complaints of sexual harassment. Lawson asks this court in effect to find that this is a case of res ipsa loquitur. We decline to do so. Although Lawson's brief discusses the investigators' failure to listen to certain witnesses or to allow a witness to retract her statement, there is no admissible evidence by deposition or affidavit to support these claims. ⁹ Lawson's complaint was that he was not allowed to "see" the written statements of the complainants. However, as appears from his own statement, he was fully advised of their contents.

We are entitled to affirm on any grounds supported by the record. ¹⁰ We choose to rest our disposition of the negligence claim on Lawson's failure to establish the standard of care or show any breach thereof. Summary judgment was appropriate.

DEFAMATION CLAIMS

Lawson asserts defamation claims against the complaining employees, the investigating employees and through them, via respondeat superior, against Boeing. The complaints, and the statements made by the investigating defendants, are both unquestionably entitled to a conditional privilege as having been made in connection with a matter of common interest to the company and the individuals. ¹¹ Conditional privilege is routinely applied to complaints as to sexual harassment. ¹² The rationale of this view is well stated in Stockley at 769:

[P]rivate compliance and enforcement procedures are essential to the success of ... efforts to eliminate employment discrimination. Such private enforcement would be undermined if statements made during [an employer's] investigations [of sexual harassment in the workplace] were not protected by a qualified privilege. ¹³

The issue is whether the privilege was lost through abuse.

On summary judgment we must assume that the statements were false, since they are denied in Lawson's affidavit. As to the investigating employees, however, falsity is not enough. ¹⁴ Proof of knowledge of, or reckless disregard as to, the falsity of the statements is also required to establish abuse of the privilege. ¹⁵ As to the investigating employees, there is absolutely no showing of any malice, recklessness, or failure to examine the facts. They took statements, interviewed witnesses, and expressed their opinion that harassment had occurred. As there was no showing of any abuse or actual malice by the investigating employees, summary judgment was appropriate.

The claim against the complaining employees presents a factually different issue. The charges were matters of fact, not opinion. They spoke of their own personal knowledge. The events were recent. If their allegations were false, they were unquestionably knowingly false. These employees also rely on Bender v. Seattle, 99 Wash.2d 582, 664 P.2d 492 (1983), Gem Trading Co. v. Cudahy Corp., 92 Wash.2d 956, 603 P.2d 828 (1979) and Parry v. George H. Brown & Assocs., Inc., 46 Wash.App. 193, 730 P.2d 95 (1986) to require malice in addition to falsity. Those cases do not support their position. In none of them was the defendant speaking from personal knowledge of the truth or falsity of the defamatory statement. At oral argument, respondents cited Stockley v. AT & T Information Systems, supra. It, too, is inapposite, because the original speaker of the defamatory statement was not the defendant. Respondents were unable to cite a single case applying conditional privilege to facts similar to those before us, nor has our research disclosed any. This is not surprising. The Restatement (Second) of Torts § 600 (1976), reads as follows:

Knowledge of Falsity or Reckless Disregard as to Truth

Except as stated in § 602, one who upon an occasion giving rise to a conditional privilege publishes false and defamatory matter concerning another abuses the privilege if he

(a) knows the matter to be false, or

(b) acts in reckless disregard as to its truth or falsity.

As indicated above, the statements made here, if false, were knowingly false. As such they fall squarely within subparagraph (a), constituting an abuse of the conditional privilege. The reason for the...