Robel v. Roundup Corp.

• Decision Date: 12 December 2002
• Docket Number: No. 70561-5.,70561-5.
• Citation: 148 Wash.2d 35,59 P.3d 611,148 Wn.2d 35
• Parties: Linda ROBEL, Petitioner, v. ROUNDUP CORPORATION, d/b/a Fred Meyer, Inc., Respondent.
• Court: Washington Supreme Court

59 P.3d 611

148 Wn.2d 35

148 Wash.2d 35

Linda ROBEL, Petitioner, v. ROUNDUP CORPORATION, d/b/a Fred Meyer, Inc., Respondent.

No. 70561-5.

Supreme Court of Washington, En Banc.

Argued May 31, 2001.

Decided December 12, 2002.

Delay Curran Thompson Pontarolo & Walker, Michael Walker, Spokane, for Petitioner.

Allen & McLane PC, Keller Allen, Spokane, for Respondent.

OWENS, J.

This court is asked to decide whether the Court of Appeals correctly reversed a bench trial judgment for petitioner Linda Robel on her claims for disability harassment, retaliation for filing a workers' compensation claim, negligent and intentional infliction of emotional distress, and defamation. We hold that Washington's Law Against Discrimination, chapter 49.60 RCW (the antidiscrimination statute), supports an employee's disability based hostile work environment claim, and conclude that the trial court's unchallenged findings of fact satisfy the elements of such a claim. We likewise conclude that the trial court's unchallenged findings support Robel's claim that Fred Meyer retaliated against her for filing a workers' compensation claim. Regarding Robel's claim for intentional infliction of emotional distress, we reject the conclusion of the Court of Appeals that the claim should not have gone to the trier of fact. Because the trial court's findings on the elements of outrage went unchallenged, we reinstate the trial court's decision in Robel's favor on her outrage claim and, consequently, will not reach the claim for negligent infliction of emotional distress. However, because we agree with the Court of Appeals that the allegedly defamatory communications cited in the trial court's findings of fact were not capable of defamatory meaning, we affirm the reversal of the trial court's judgment on the defamation claim. We deny Robel's request for costs and reasonable attorney fees on appeal.

FACTS

The suit arises out of Linda Robel's employment from May 31, 1995, to September 12, 1996, in the service deli at the Francis Avenue Fred Meyer store in Spokane. On July 14, 1996, Robel sustained a workplace injury and timely filed a workers' compensation claim. In late July, Robel was given a light-duty assignment, "a four-hour shift" during which she stood "at a display table outside the deli area offering samples of food items to customers." Clerk's Papers (CP) at 1333 (Finding of Fact 22). On August 1, 1996, as Robel worked at the display table, two deli workers "laughed" and "acted out a slip and fall," as "one of them yelled `Oh, I hurt my back, L & I, L & I!'" Id. (Finding of Fact 23); see also Joint Ex. 201, at 30. They "audibly called [Robel] a `bitch' and `cunt.'" Id. They also "told customers she had lied about her back and was being punished by Fred Meyer by `demoing' pizzas." Id. In journal entries for August 2, 3, 10, and 11, Robel wrote that assistant deli manager Amy Smith and others made fun of her, laughed, pointed, and gave her "dirty looks." Joint Ex. 201, at 30-33. Robel also noted that on August 13, Smith and other deli workers would "stare at [her], whisper out loud, & laugh, pretend to hurt their backs & laugh." Id. at 34.

Robel reported the incidents to her union representative, Ron Banka. According to Robel's journal, Banka came in on August 14, 1996, and set up a meeting with Steve Wissink, the store director, for Friday, August 16. After the brief meeting, Banka stopped by the deli and told Robel that Wissink was convening a meeting of all deli employees on August 19, 1996. At that meeting, Wissink warned the employees that future harassment could result in termination. On August 22, 1996, deli workers "laughed and audibly admonished each other not to harass Robel." CP at 1333 (Finding of Fact 25); Joint Ex. 201, at 35. On August 28 and 30, Robel noted in her journal that co-workers were talking about her and laughing at her, and she recorded that, on September 2, Smith and other workers "had a great time making fun of [her], calling [her] names[,] pretending to hurt their backs & yelling L & I." Joint Ex. 201, at 35-36, 38. On September 13, 1996, Robel secured a two-week work release from her doctor and gave it to Smith that same day. Before Robel left the deli, she overheard Smith comment to other deli employees, "`Can you believe it, Linda's gonna sit on her big ass and get paid.'" CP at 1333 (Finding of Fact 27); see also Joint Ex. 201, at 40.

Robel again contacted Banka, who in turn contacted Wissink on September 20, 1996.¹ On September 24, Wissink telephoned Robel to confirm the allegations. Robel "told him about the C word and Bitch[,] the little plays they were doing about [her] back." Joint Ex. 201, at 40. On September 28, 1996, Wissink terminated one employee. Robel never returned to work at Fred Meyer.

On February 13, 1998, Robel filed suit against Fred Meyer, stating claims for disability discrimination (RCW 49.60.180(3)), retaliation for filing a workers' compensation claim (RCW 51.48.025(1)), negligent and intentional infliction of emotional distress, and defamation. The trial court denied Fred Meyer's motion for summary judgment. At the close of a three-day nonjury trial in September 1999, the court entered 69 findings of fact and 8 conclusions of law. Finding for Robel on all five causes of action, the court awarded Robel $1,902.50 in special damages and $50,000.00 in general damages, along with her reasonable attorney fees and costs.

Fred Meyer appealed. The Court of Appeals reversed the trial court's judgment on all claims. Robel v. Roundup Corp., 103 Wash.App. 75, 10 P.3d 1104 (2000). We granted Robel's petition for review.

ISSUES

(1) Does the antidiscrimination statute support an employee's disability based hostile work environment claim? If so, did the trial court's unchallenged findings of fact support its conclusion of law that Fred Meyer discriminated against Robel based upon her physical disability?

(2) Did the trial court's unchallenged findings of fact support the conclusion that Fred Meyer, in violation of RCW 51.48.025(1), retaliated against Robel for filing a workers' compensation claim?

(3) Did the Court of Appeals properly hold as a matter of law that Robel's claim for intentional infliction of emotional distress should not go to the trier of fact?

(4) Were the allegedly defamatory communications cited in the trial court's findings of fact capable of defamatory meaning?

ANALYSIS

Standard of Review. Fred Meyer assigned error to all of the trial court's conclusions of law but challenged none of its findings of fact. Br. of Appellant at 1-2. Unchallenged findings are verities on appeal. State v. Stenson, 132 Wash.2d 668, 697, 940 P.2d 1239 (1997); State v. Hill, 123 Wash.2d 641, 644, 647, 870 P.2d 313 (1994). This court reviews de novo Fred Meyer's challenges to the trial court's conclusions of law. State v. Johnson, 128 Wash.2d 431, 443, 909 P.2d 293 (1996). Because "[a] conclusion of law is a conclusion of law wherever it appears," any conclusion of law erroneously denominated a finding of fact will be subject to de novo review. Kane v. Klos, 50 Wash.2d 778, 788, 314 P.2d 672 (1957); see also Local Union 1296, Int'l Ass'n of Firefighters v. City of Kennewick, 86 Wash.2d 156, 161-62, 542 P.2d 1252 (1975).

Disability Discrimination. Under the antidiscrimination statute, "[i]t is an unfair practice for any employer ... [t]o discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability." RCW 49.60.180(3) (emphasis added). This court has recognized that the antidiscrimination statute prohibits sexual harassment in employment, with such claims being "generally categorized as `quid pro quo harassment' claims or `hostile work environment' claims." DeWater v. State, 130 Wash.2d 128, 134-35, 921 P.2d 1059 (1996) (quoting Payne v. Children's Home Soc'y of Wash., Inc., 77 Wash.App. 507, 511 n. 2, 892 P.2d 1102, review denied, 127 Wash.2d 1012, 902 P.2d 164 (1995)). Whether the antidiscrimination statute supports a disability based hostile work environment claim is an issue of first impression in this state. In reviewing Robel's claim below, Division Three of the Court of Appeals assumed arguendo that the antidiscrimination statute "encompasse[d] a hostile environment claim based on a disability" but concluded that the findings of fact did not support such a claim. Robel, 103 Wash.App. at 86-87, 10 P.3d 1104. We hold that the antidiscrimination statute supports a disability based hostile work environment claim, and conclude that the trial court's unchallenged findings of fact satisfied each element of the claim.

To determine whether the antidiscrimination statute supports a disability claim based on a hostile work environment, we may look to federal cases construing analogous federal statutes. Fahn v. Cowlitz County, 93 Wash.2d 368, 376, 610 P.2d 857 (1980), 621 P.2d 1293 (1980). A number of federal courts have considered whether the Americans with Disabilities Act of 1990 (the ADA, 42 U.S.C. § 12101) supports a disability claim based on the employer's creation of a hostile work environment.² The ADA forbids discrimination that impacts a disabled person's "terms, conditions, and privileges of employment," a phrase likewise found in Title VII of the Civil Rights Act, which forbids discrimination based on an employee's race, color, religion, sex, or national origin. 42 U.S.C. § 12112(a), § 2000e-2(a)(1). The United States Supreme Court has interpreted the language in Title VII to prohibit harassment that is so "severe and pervasive" as to alter the conditions of employment and create a hostile work environment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S.Ct. 2399, 91 L.Ed.2d 49 (1986). When asked to extend to ADA plaintiffs this same protection afforded under Title VII, most federal courts have...