Wright v. Terrell, No. 34492-1-II.

CourtCourt of Appeals of Washington
Writing for the CourtBridgewater
Citation145 P.3d 1230,135 Wn. App. 722
PartiesCharlotte WRIGHT, David Larson, and the Public School Employees of Evergreen, an affiliate of the Public School Employees of Washington, Appellants, v. Jim TERRELL, Marcia Fromhold, in her official capacity as Assistant Superintendent of the Evergreen School District, and the Evergreen School District, Respondents.
Docket NumberNo. 34492-1-II.
Decision Date24 October 2006
145 P.3d 1230
135 Wn. App. 722
Charlotte WRIGHT, David Larson, and the Public School Employees of Evergreen, an affiliate of the Public School Employees of Washington, Appellants,
v.
Jim TERRELL, Marcia Fromhold, in her official capacity as Assistant Superintendent of the Evergreen School District, and the Evergreen School District, Respondents.
No. 34492-1-II.
Court of Appeals of Washington, Division 2.
October 24, 2006.

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Eric Thomas Nordlof, Public School Employees of WA, Pse, Auburn, WA, for Appellants.

Dennis Raymond Duggan, Duggan Schlotfeldt & Welch Law Firm, Vancouver, WA, Michael B. Tierney, John Mathias Stellwagen, Law Office of Michael B. Tierney PC, Mercer Island, WA, for Respondents.

BRIDGEWATER, J.


¶ 1 Charlotte Wright and David Larson, two employees of the Evergreen School District (the District), appeal from a summary judgment in favor of their supervisors, James Terrell and Marcia Fromhold. Because Terrell and Fromhold acted only in the workplace and only in the scope of their employment, and because the District therefore was required to defend Terrell and Fromhold, we hold that Wright and Larson were required to file a notice of claim for all claims. Having failed to file any notice of claim, their action was properly barred.

¶ 2 Further, we hold that none of the allegations rose to the level of the intentional tort of outrage. As well, the trial court did not abuse its discretion regarding discovery. Finally, we hold that both the superior court and the Public Employees Relation Committee (PERC) had jurisdiction to hear the matter, but that Wright and Larson were not required to exhaust their administrative remedies before proceeding in superior court for this labor dispute. We affirm.

FACTS

¶ 3 Charlotte Wright and David Larson worked in the Evergreen School District's print shop.1 James Terrell supervised them.

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Marcia Fromhold, the Superintendent for Business and Support Services for the District, supervised Terrell.

¶ 4 In 2001, Larson began working for the District as a printing press operator. According to Larson, Terrell routinely criticized his work, verbally abused him, and set unrealistic production goals for him.2 Because of these confrontations, Larson claimed that he developed "physical and psychological symptoms, including extreme anxiety, shaking, regular vomiting, sleeplessness, and depression." Clerk's Papers (CP) at 19. Although Larson's physician urged him to resign, Larson refused because he needed the income from his employment.

¶ 5 Ultimately, because of problems with the output and quality of his work, the District discharged Larson in 2003.

¶ 6 In 1991, Wright began working for the District as a special education paraeducator. In 1998, Wright transferred to the print shop, where she began working as a bindery operator. According to Wright, Terrell "was inappropriate from the outset of her assignment." CP at 15.

¶ 7 Among other things, Wright alleged that Terrell: (1) "flirted" with her, stared at her breasts, and made sexual innuendos; (2) directed her to "spy" on other workers; (3) interfered with union participation and retaliated against union employees; (4) routinely criticized her work without cause, embarrassing and distressing her; and (5) tormented her on several occasions before and after she went on leave. CP at 15.3

¶ 8 Because of these confrontations, Wright "was concerned that her constant emotional distress at work was causing damage to her physical health." CP at 17. Eventually, Wright's mental health counselor recommended that she remove herself from her work environment. Wright applied for medical leave and the District granted her application. Wright remains on medical leave.

¶ 9 In 2002, Larson and Wright filed harassment complaints with the District.4 After an investigation, the District concluded that "the primary problem here is one of [Terrell's] management style." CP at 158. Thus, the District recommended that "the District's administration work with [Terrell] on his management style." CP at 158. Not satisfied with the investigation, the union informed the District that Larson, and Wright were appealing the decision. But because the union presented no new information, the District affirmed its decision.

¶ 10 Eventually, the District placed Terrell on administrative leave. In April 2004, the District noted that Terrell had resigned from his position and that Fromhold had retired from her position. The plaintiffs later learned that Terrell had resigned in lieu of termination for cause.

¶ 11 In June 2003, Wright and the union filed a complaint against Terrell, Fromhold, and the District. In August 2003, Wright and the union filed an amended complaint, in which Larson was added as a plaintiff. The plaintiffs never gave the District notice of their complaint.

¶ 12 Thereafter, the plaintiffs filed a motion to compel discovery, requesting that the District disclose documents related to Terrell's resignation. The defendants opposed this motion, arguing that the documents were privileged and not relevant. In November 2004, the trial court responded to the plaintiffs' motion stating, "My intent is to conduct the in-camera inspection without the benefit of counsel." CP at 499.

¶ 13 The defendants filed motions for summary judgment. In November 2004 and January 2005, the trial court granted these motions, dismissing all but one of the plaintiffs'

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claims.5 In January 2005, the trial court denied the plaintiffs' motion to compel discovery, finding that the District documents were not relevant to their claims.

¶ 14 In February 2005, the trial court entered its final order, dismissing with prejudice all the plaintiffs' causes of action. The trial court subsequently denied the plaintiffs' motion to reconsider. The plaintiffs appeal.

ANALYSIS
I. SUMMARY JUDGMENT

¶ 15 On review of an order for summary judgment, we perform the same inquiry as the trial court. Hisle v. Todd Pac. Shipyards Corp., 151 Wash.2d 853, 860, 93 P.3d 108 (2004) (citing Kruse v. Hemp, 121 Wash.2d 715, 722, 853 P.2d 1373 (1993)). The standard of review is de novo. Summary judgment is appropriate only if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." CR 56(c). All facts are considered in the light most favorable to the nonmoving party. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wash.2d 16, 26, 109 P.3d 805 (2005) (citing Atherton Condo. Apartment-Owners Ass'n Bd. of Dirs. v. Blume Dev. Co., 115 Wash.2d 506, 516, 799 P.2d 250 (1990)). Summary judgment is granted only if reasonable persons could reach but one conclusion from all the evidence. Vallandigham, 154 Wash.2d at 26, 109 P.3d 805.

A. Dismissal of Tort Claims for Failure to Follow PECBA

¶ 16 The appellants argue that the trial court erred when it summarily dismissed five of their tort claims because: (1) they did not follow the arbitration and grievance procedures under chapter 41.56 RCW, commonly known as the Public Employees' Collective Bargaining Act (PECBA); and (2) they did not exhaust their administrative remedies.

¶ 17 In dismissing these tort claims, the trial court concluded that the appellants' complaints were essentially "about Terrell's manner and method of supervision." CP at 514. Citing the collective bargaining agreement (CBA) and PECBA, the trial court concluded that these claims "were subject to resolution via administrative procedures, and [appellants'] failure to seek such resolution precludes the maintenance of said claims in a judicial forum." CP at 514.

¶ 18 But as the appellants note, they did not initiate a contract grievance or complaint against the District under the CBA before filing suit.6 Instead, they initiated tort claims against Terrell, Fromhold, and the District.

¶ 19 Because the right to be free from tort violations is independent of any underlying contractual agreement or civil service law, we hold that the appellants were not required to exhaust their contractual or administrative remedies. See Smith v. Bates Technical College, 139 Wash.2d 793, 809, 991 P.2d 1135 (2000); Wilson v. City of Monroe, 88 Wash.App. 113, 117, 943 P.2d 1134 (1997), review denied, 134 Wash.2d 1028, 958 P.2d 318 (1998) (the CBA does not preempt claims that are based on nonnegotiable, substantive rights); see also Finch v. Holladay-Tyler Printing, Inc., 322 Md. 197, 206, 586 A.2d 1275 (1991) (no need to resort to arbitration because issue addressed by arbitration would not be determinative of tort claim); Midgett v. Sackett-Chicago, Inc., 105 Ill.2d 143, 473 N.E.2d 1280, 85 Ill.Dec. 475 (1984) (plaintiff need not plead the exhaustion of contract remedies to bring an action in tort), cert. denied, 474 U.S. 909, 106 S.Ct. 278, 88 L.Ed.2d 243 (1985). Thus, the trial court erred in dismissing the appellants' tort

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claims for failure to exhaust their contractual or administrative remedies.

B. Dismissal of Unfair Labor Practices Claims for Failure to Exhaust Administrative Remedies

¶ 20 The appellants argue that the trial court erred when it summarily dismissed two of their unfair labor practice claims, which were based on violations of RCW 41.56.140(1) and (4), for a failure to exhaust administrative remedies. Essentially, they argue that PERC does not have exclusive jurisdiction in deciding unfair labor practices and that they did not need to follow the administrative procedures in adjudicating their claims. We agree.

¶ 21 Arguably, both PERC and the trial court have original jurisdiction to hear appellants' unfair labor practice charges. Our Supreme Court first addressed a similar issue in State ex rel. Graham v. Northshore School District, 99 Wash.2d 232, 662 P.2d 38 (1983). As an intervenor, PERC relied on...

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6 practice notes
  • Strong v. Terrell, No. 35967-7-II.
    • United States
    • Court of Appeals of Washington
    • November 12, 2008
    ...the union filed a complaint in June 2003, and later amended it to add Larson as a plaintiff. Wright v. Terrell, 135 Wash.App. 722, 726, 145 P.3d 1230 (2006), rev'd, 162 Wash.2d 192, 170 P.3d 570 (2007). Wright moved to amend the complaint a second time to add Strong as a plaintiff; the tria......
  • Bair v. Snohomish Cnty., CASE NO. 2:19-cv-00998-BJR
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Western District of Washington)
    • February 2, 2021
    ...employee is not within their scope of employment when committing an intentional tort or civil rights violation. See Wright v. Terrell, 145 P.3d 1230, 1240 (Wash. Ct. App. 2006), rev'd, 170 P.3d 570 (Wash. 2007) (citing Woods v. Bailet, 67 P.3d 511, 515-16 (Wash. Ct. App. 2003); Hardesty v. ......
  • Wright v. Terrell, 34492-1-II
    • United States
    • Court of Appeals of Washington
    • September 23, 2008
    ...reasoned that "a plurality opinion has only limited precedential value and is not binding on the courts." Wright v. Terrell, 135 Wn.App. 722, 735, 145 P.3d 1230 (2006), rev'd, 162 Wn.2d 192, 196, 170 P.3d 570 (2007). Plaintiffs then sought review in the Supreme Court, which was gr......
  • International Longshore v. Port of Tacoma, No. 38341-1-II.
    • United States
    • Court of Appeals of Washington
    • February 2, 2010
    ...is deciding whether arbitrator acted illegally by exceeding his authority under the contract); Wright v. Terrell, 135 Wash.App. 722, 729, 145 P.3d 1230 (2006) (superior court and the PERC have original jurisdiction to hear unfair labor practice ¶ 14 Local 23 argues that this is a breach of ......
  • Request a trial to view additional results
6 cases
  • Strong v. Terrell, No. 35967-7-II.
    • United States
    • Court of Appeals of Washington
    • November 12, 2008
    ...the union filed a complaint in June 2003, and later amended it to add Larson as a plaintiff. Wright v. Terrell, 135 Wash.App. 722, 726, 145 P.3d 1230 (2006), rev'd, 162 Wash.2d 192, 170 P.3d 570 (2007). Wright moved to amend the complaint a second time to add Strong as a plaintiff; the tria......
  • Bair v. Snohomish Cnty., CASE NO. 2:19-cv-00998-BJR
    • United States
    • United States District Courts. 9th Circuit. United States District Court (Western District of Washington)
    • February 2, 2021
    ...employee is not within their scope of employment when committing an intentional tort or civil rights violation. See Wright v. Terrell, 145 P.3d 1230, 1240 (Wash. Ct. App. 2006), rev'd, 170 P.3d 570 (Wash. 2007) (citing Woods v. Bailet, 67 P.3d 511, 515-16 (Wash. Ct. App. 2003); Hardesty v. ......
  • Wright v. Terrell, 34492-1-II
    • United States
    • Court of Appeals of Washington
    • September 23, 2008
    ...reasoned that "a plurality opinion has only limited precedential value and is not binding on the courts." Wright v. Terrell, 135 Wn.App. 722, 735, 145 P.3d 1230 (2006), rev'd, 162 Wn.2d 192, 196, 170 P.3d 570 (2007). Plaintiffs then sought review in the Supreme Court, which was gr......
  • International Longshore v. Port of Tacoma, No. 38341-1-II.
    • United States
    • Court of Appeals of Washington
    • February 2, 2010
    ...is deciding whether arbitrator acted illegally by exceeding his authority under the contract); Wright v. Terrell, 135 Wash.App. 722, 729, 145 P.3d 1230 (2006) (superior court and the PERC have original jurisdiction to hear unfair labor practice ¶ 14 Local 23 argues that this is a breach of ......
  • Request a trial to view additional results

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