Woody v. Stapp, 25909-9-III.

• Decision Date: 20 May 2008
• Docket Number: No. 25909-9-III.,25909-9-III.
• Court: Washington Court of Appeals
• Parties: Dave WOODY, Appellant, v. Darby STAPP and the marital community composed of Darby and Jane Doe Stapp, Jennifer Irlam, Ellen Prendergast and the marital community composed of Ellen and John Doe Prendergast, Michael Fallon and the marital community composed of Michael and Jane Doe Fallon, Respondents.

189 P.3d 807

146 Wn. App. 16

Dave WOODY, Appellant, v. Darby STAPP and the marital community composed of Darby and Jane Doe Stapp, Jennifer Irlam, Ellen Prendergast and the marital community composed of Ellen and John Doe Prendergast, Michael Fallon and the marital community composed of Michael and Jane Doe Fallon, Respondents.

No. 25909-9-III.

Court of Appeals of Washington, Division 3.

May 20, 2008.

Publication Ordered July 29, 2008.

Ryan M. Edgley, Edgley & Beattle, Yakima, WA, for Appellant.

Jerome R. Aiken, Attorney at Law, Yakima, WA, for Respondents.

BROWN, J.

¶ 1 David M. Woody worked as an at-will employee for Pacific Northwest National Laboratories/Battelle. His employment was terminated based on investigative reports given by his co-workers, Darby Stapp, Jennifer Irlam (formerly Zohn), Ellen Prendergast, and Michael Fallon, following an investigation prompted by Mr. Woody's refusal to attend a work meeting in the presence of Ms. Irlam. Mr. Woody sued the co-workers, alleging defamation, civil conspiracy, and tortious interference with a business expectancy. He appeals the summary dismissal of his suit, contending material fact issues remain and the co-workers' false statements exceeded the qualified immunity accorded internal investigative reports. We disagree, and affirm.

FACTS

¶ 2 In July 2004, after two years with Battelle as an at-will employee, Mr. Woody refused Mr. Stapp's request that he attend a work meeting with Ms. Irlam, explaining he had been sexually harassed by her. Battelle's equal employment opportunity (EEO) specialist investigated and interviewed Mr. Woody's co-workers.

¶ 3 Ms. Irlam denied harassing Mr. Woody and reported he told her that he had a crush on her and was unhappily married. She reported Mr. Woody had given her a romantic card after she filed for divorce and often put his arm around her and tried to hug her. Ms. Irlam related an incident when Mr. Woody walked into her office, closed the door, and then tried to kiss her and she resisted. The next day, he sent an e-mail that said, "Should I close your door again today?" Clerk's Papers (CP) at 15. Ms. Irlam responded, "Umm, No!" Id.

¶ 4 Mr. Stapp reported Ms. Irlam told him about the incident. Further, Mr. Woody sent him several e-mails bragging about his abilities to romance Ms. Irlam.

¶ 5 Ms. Prendergast reported Mr. Woody bragged that he "nailed" Ms. Irlam and commented on Ms. Irlam's working relationship with another co-worker, stating, "I would do that if someone gave me a blowjob." CP at 82 (emphasis in original).

¶ 6 Mr. Fallon, an intern, reported to the investigator that Mr. Woody bragged about having "unlawful carnal knowledge" of Ms. Irlam. CP at 83. He reported an incident where Mr. Woody used a hammer in a threatening way toward another co-worker. Mr. Fallon further reported Mr. Woody instructed him on his way to meet the investigator that Mr. Fallon needed to "back your brother's play." CP at 83.

¶ 7 Battelle's EEO investigation determined Ms. Irlam's personal conversations with Mr. Woody "were not unwelcome" and not sexually harassing. CP at 83. Battelle's management, however, found:

[Mr. Woody] had engaged in a series of threatening, intimidating and unprofessional behaviors. [Mr. Woody] was aggressive and threatening to another co-worker. [Mr. Woody] had also engaged in inappropriate verbal comments, insinuations and innuendos of a sexual nature about co-workers. [Mr. Woody] was not forthright during the investigation and then attempted to intimidate and influence others to support his version of events and allegations.

CP at 83. Mr. Woody was terminated on August 9, 2004, for "engaging in hostile, intimidating, and unprofessional behavior" violating Battelle's policies. CP at 84.

¶ 8 Mr. Woody sued the co-workers, alleging defamation, civil conspiracy to defame, and tortious interference with his business expectancy. After summary dismissal of all claims, Mr. Woody appealed.

ANALYSIS

¶ 9 The issue is whether the trial court erred in deciding no material facts remained before summarily dismissing Mr. Woody's defamation, civil conspiracy, and tortious interference with a business expectancy claims.

¶ 10 We review summary judgment grants de novo. Hubbard v. Spokane County, 146 Wash.2d 699, 706-07, 50 P.3d 602 (2002). Summary judgments require no remaining issues of material fact for the moving party to receive judgment as a matter of law. CR 56(c). All facts and reasonable inferences are construed in a light most favorable to the non-moving party. Hubbard, 146 Wash.2d at 707, 50 P.3d 602. We may affirm the trial court's grant of summary judgment if it is supported by any grounds in the record. LaMon v. Butler, 112 Wash.2d 193, 200-01, 770 P.2d 1027 (1989). When reasonable minds could reach but one conclusion, questions of fact may be determined as a matter of law. Michelsen v. Boeing Co., 63 Wash. App. 917, 920, 826 P.2d 214 (1991).

¶ 11 1. Defamation. Surviving a defense summary judgment motion requires the plaintiff to show disputed material facts concerning the defamation elements: "falsity, an unprivileged communication, fault, and damages." Mohr v. Grant, 153 Wash.2d 812, 822, 108 P.3d 768 (2005).

¶ 12 Mr. Woody fails to prove falsity. Mr. Woody relies solely on his denial of what he asserts the defendants have falsely said. However, reasonable minds could not dispute that based on the e-mail correspondence and corroboration of statements reflected in Battelle's EEO investigation, Mr. Woody acted inappropriately while employed at Battelle. To defeat a defamation claim, "[a] defendant need only show that the statement is substantially true or that the gist of the story, the portion that carries the `sting', is true." Mark v. Seattle Times, 96 Wash.2d 473, 494, 635 P.2d 1081 (1981). Here, the record supports the proposition that the co-workers' criticized statements were substantially true.

¶ 13 Moreover, we apply the qualified privilege given intra-corporate communications for the statements given in Battelle's EEO investigation. Mr. Woody fails to show the statements were not published in the ordinary course of employment or that they were made with actual malice. Doe v. Gonzaga Univ., 143 Wash.2d 687, 702-03, 24 P.3d 390 (2001), rev'd on other grounds, 536 U.S. 273, 122 S.Ct. 2268, 153 L.Ed.2d 309 (2002). When a qualified privilege applies, a plaintiff cannot establish a prima facie case of defamation unless the plaintiff can show by clear and convincing evidence the declarant had knowledge of the statement's falsity and he or she recklessly disregarded this knowledge. Gilman v. MacDonald, 74 Wash.App. 733, 738, 875 P.2d 697 (1994) (citing Lillig v. Becton-Dickinson, 105 Wash.2d 653, 658, 717 P.2d 1371 (1986)). Further, as noted below in our tortious interference analysis, considering Mr. Woody's at-will employment, he fails to establish either causation or damages. Accordingly, the trial court properly dismissed Mr. Woody's defamation claim in summary judgment.

¶ 14 2. Civil Conspiracy. Mr. Woody next claims the co-workers engaged in a civil conspiracy. To establish a claim for civil conspiracy, Mr. Woody "must prove by clear, cogent, and convincing evidence that (1) two or more people combined to accomplish an unlawful purpose, or combined to accomplish a lawful purpose by unlawful means; and (2) the conspirators entered into an agreement to accomplish the conspiracy." All Star Gas, Inc. v. Bechard, 100 Wash.App. 732, 740, 998 P.2d 367 (2000). But, "`[m]ere suspicion or commonality of interests is insufficient to prove a conspiracy.'" Id.

¶ 15 Initially, Mr. Woody argues his burden of proof is lowered because when we review a summary judgment order, we must construe all facts and reasonable inferences in a light most favorable to the non-moving party. Hubbard, 146 Wash.2d at 707, 50 P.3d 602. However, when reviewing a civil case in which the standard of proof is clear, cogent, and convincing evidence, this court "must view the evidence presented through the prism of the substantive evidentiary burden." Anderson v. Liberty Lobby,...