DEO v. KING BROADCASTING COMPANY, 52626-0-I (Wash.App. 7-19-2004)

No. 52626-0-IThe Court of Appeals of Washington, Division One.
Filed: July 19, 2004 UNPUBLISHED OPINION

Appeal from Superior Court of King County. Docket No: 00-2-32461-8. Judgment or order under review. Date filed: 06/09/2003. Judge signing: Hon. William L. Downing.

Counsel for Appellant(s), Mary Ruth Mann, Law Offices of Mary R. Mann Associates, Historic Broderick Bldg, 615 2nd Ave Ste 760, Seattle, WA 98104.

Counsel for Respondent(s), Lawton H. Humphrey, Attorney at Law, 1501 4th Ave Ste 2600, Seattle, WA 98101-1664.

Suzanne J. Thomas, Law Offices of Suzanne J. Thomas, 1325 4th Ave Ste 940, Seattle, WA 98101-2509.

ELLINGTON, A.C.J.

Lowell Deo’s claims of wrongful termination on the basis of union activity and race were dismissed by a federal court, which then remanded Deo’s remaining claims to state court. The remaining claims were either barred by collateral estoppel or unsupported by any evidence suggesting issues of fact. We therefore affirm the trial court’s dismissal of Deo’s complaint.

FACTS
From 1993 until 1999, Lowell Deo was employed by King Broadcasting Company as a television segment producer (later retitled reporter) for Evening Magazine. Deo’s employment was governed by a collective bargaining agreement between King and the American Federation of Television and Radio Artists (AFTRA).

Deo’s tenure at King was troubled. He was an experienced local reporter, but was new to magazine format programming. His on-air performance was good, but his writing and production skills were consistently identified by his supervisors as sub par, and he was repeatedly counseled about the need for improvement. In his 1998 review, Deo was told that his performance in his fifth and sixth years with King had been wholly unsatisfactory and that improvement must be immediate. In March, 1999, Deo was told his work remained unsatisfactory and that failure to improve might result in his termination. In July, 1999, King terminated Deo’s employment.

Throughout his time at King, Deo had a difficult relationship with Evening Magazine staffers, including host John Curley. He alleges that during the approximately four years they worked together, Curley made various offensive comments about race and sexual orientation,[1]
excluded him from production trips, and criticized his voice and other aspects of his work. Deo alleges other coworkers also made comments evidencing racial and/or homophobic animus. He brought some of these incidents to management attention, and alleges that King condoned a hostile work environment by failing to reprimand Curley and other staff for their conduct.

After his termination in 1999, Deo filed an unfair labor practice charge with the National Labor Relations Board (NLRB), alleging he was terminated in retaliation for filing an earlier complaint with the NLRB,[2] and that his termination violated the bargaining agreement because it was without just cause. This charge was resolved by binding arbitration. The arbitrator found that Deo was terminated due to his `inability or unwillingness to meet the performance levels’ set by King, Clerk’s Papers at 117, and that his termination was for just cause and was not in retaliation for his earlier grievance.

Deo then filed a claim with the Equal Employment Opportunity Commission alleging race discrimination. The EEOC referred the charge to the Washington State Human Rights Commission for further investigation. The Commission found no reasonable cause to believe Deo was discriminated against because of race.

Deo next filed a complaint with the Seattle Office for Civil Rights, alleging a hostile work environment based on race and sexual orientation. That charge was dismissed as untimely.

Deo then filed this action in superior court. His complaint listed 12 causes of action, including wrongful termination based on race and sexual orientation, retaliation for union activity, and racial harassment/hostile work environment. King Broadcasting removed the suit to federal court based on Deo’s union retaliation claim, which was governed by federal labor regulations, and his racial discrimination claim, which was treated as a complaint under Title VII of the Civil Rights Act, 42 U.S.C. § 2000e. In a 17-page order, District Judge Barbara Rothstein granted summary judgment dismissal of Deo’s claims of race discrimination and retaliation for union activity, and remanded Deo’s remaining claims to state court. Deo did not appeal.

On remand, Judge William Downing granted summary judgment, dismissing Deo’s complaint in its entirety. Deo filed this appeal.[3]

DISCUSSION CR 56(f) Ruling
After King moved for summary judgment in superior court, Deo moved for a continuance under CR 56(f) to obtain the deposition testimony of Tracy Murphy. Judge Downing denied the motion, finding `there was insufficiently specific and compelling information presented regarding evidence that is likely to be discovered or that could not have been discovered to date.’ Clerk’s Papers at 431. Deo assigns error to this ruling, but does not present any argument on the issue. He has therefore waived this issue for appeal. RAP 10.3(a)(5); Weems v. North Franklin School District, 109 Wn. App. 767, 778, 37 P.3d 354 (2002). We observe that the trial court offered a tenable basis for its ruling and therefore did not abuse its discretion. Morgan v. PeaceHealth, Inc., 101 Wn. App. 750, 774, 14 P.3d 773 (2000); Coggle v. Snow, 56 Wn. App. 499, 507, 784 P.2d 554 (1990).

Collateral Estoppel: Race Discrimination and Retaliation for Union Activity

Judge Downing dismissed Deo’s claims that he was terminated on the basis of his race and past union activity, on grounds these claims were conclusively determined by the federal court. Collateral estoppel, or issue preclusion, prevents the relitigation of an issue or determinative fact after a full and fair opportunity to present the case. Clausing v. Clausing, 47 Wn. App. 676, 680, 736 P.2d 1103 (1987). For collateral estoppel to apply, four factors must be met: (1) an identity of issues actually decided; (2) a final judgment on the merits; (3) the party against whom an issue or determinative fact is asserted was a party or in privity with a party to the prior action; (4) application of the doctrine will not work an injustice on the party against whom applied. Id. Only the first and fourth factors are contested here.

As to Deo’s allegation of retaliation for filing a wage/hour grievance, Judge Rothstein ruled this claim was within the exclusive jurisdiction of the NLRB, and that the arbitrator’s determination was binding. Deo contends this ruling is not preclusive in state court, because Washington offers broader protection against retaliation for concerted employee activity or union affiliation and, for example, permits claims based on an employee’s right to be free from `interference, restraint or coercion’ related to concerted activities aimed at improving working conditions. See Bravo v. Dolson Companies, 125 Wn.2d 745, 756, 888 P.2d 147 (1995). But these legal differences are immaterial here. Deo alleged wrongful termination, not violation of a right to be free from restraint or coercion. There was a final judgment on the question of whether Deo was terminated in retaliation for union activity. The federal court held that the arbitrator’s ruling was binding, and Deo did not appeal. Further litigation is precluded. The trial court did not err in dismissing the state claim on the same issue.[4]

As to Deo’s claim of racial discrimination, Judge Rothstein ruled Deo failed to make a prima facie case under Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1220 (9th Cir. 1998), because the undisputed evidence established Deo’s failure to perform according to King’s `neutral professional standards,’ Clerk’s Papers at 74, and Deo had not identified any other King employee with a history of deficient workplace performance who was treated differently by King. Judge Rothstein further ruled Deo had presented no evidence tending to show that King’s stated reasons for his termination were a pretext for unlawful, discriminatory motives.

Deo argues this ruling should not have preclusive effect, because of differences in the elements of a prima facie case under Title VII and a Washington Law Against Discrimination (WLAD). Unlike the federal test, the WLAD does not require a plaintiff to show that he was performing according to his employer’s legitimate expectations. Subia v. Riveland, 104 Wn. App. 105, 112 n. 8, 15 P.3d 658 (2001). And under Washington law, race need only be a substantial, not a determining, factor behind a discharge. Mackay v. Acorn Custom Cabinetry, 127 Wn.2d 302, 310, 898 P.2d 284 (1995).[5]

But again, these legal differences are not material here. It is clear that Deo’s performance was below standard, so his WLAD argument must be that his performance problems were a pretext for the real motive for his discharge: racial animus. But Judge Rothstein ruled the evidence offered by Deo `inadequate to raise even the possibility that Deo’s termination for poor performance was a mere pretext for unlawful discriminatory motives.’[6] Clerk’s Papers at 76. This is a final judgment on whether King’s reasons for terminating Deo were pretext. Collateral estoppel thus barred Deo’s WLAD claim of wrongful termination on the basis of race.

Deo’s Other Claims on Remand
Evidence. In response to King’s motion for summary judgment, Deo submitted his own declaration and that of Tracy Murphy. Finding that to a great extent the declarations were conclusory, lacking in foundation or hearsay,[7] Judge Downing granted King’s motion to strike large portions of both declarations `except to the extent that they shed relevant light on Mr. Deo’s state of mind which may reflect the atmosphere in his work environment.’ Clerk’s Papers at 436-37. The stricken portions included many of the offensive remarks Deo attributed to Curley and his coworkers. Deo has not assigned error to this ruling, which therefore sets the record for review. RAP 10.3(a)(5); Weems, 109 Wn. App. at 778. Much of the evidence upon which Deo’s brief relies is thus not properly before us. We confine our analysis to the record before the trial court.

Sexual Orientation Claims. Deo contends he presented a prima facie case of sexual orientation discrimination under Seattle and King County ordinances.[8] The Seattle Municipal Code prohibits discrimination based on sexual orientation `with respect to any matter related to employment,’ SMC sec. 14.04.040(A), and provides a private right of action:

Any person who claims to have been injured by an unfair employment practice may commence a civil action in Superior Court or any other court of competent jurisdiction, not later than three (3) years after the occurrence of the alleged unfair employment practice . . . to obtain appropriate relief with respect to such unfair employment practice.

Id.

As evidence of discriminatory animus based on sexual orientation, Deo cites the generally high level of criticism, adverse scrutiny, and interference with his work, as compared to his heterosexual colleagues, and relies on several comments allegedly made by Curley and his coworkers. These include describing attendees at a gay-oriented costume party as `freaks,’ and remarking that Deo would have `felt right at home,’ Clerk’s Papers at 295; being asked by a coworker, `[W]hy do you have to stop for directions? You’re such a woman!,’ Clerk’s Papers at 295; and having a coworker remark that Deo wouldn’t sign up for a softball team because he probably wasn’t `into sports.’ Clerk’s Papers at 104. Another colleague allegedly told a gay sailor about to be interviewed by Evening Magazine that `we’ve got the perfect producer for you.’ Clerk’s Papers at 295. Several of these comments, if they were made, were offensive. But Deo does not allege any such comments by his supervisors, and offers no evidence that his supervisors’ criticism of his work was motivated by discriminatory animus. The isolated remarks of his coworkers do not show that King’s reasons for terminating Deo were pretext. Summary judgment dismissing Deo’s claims of sexual orientation discrimination was proper.

Wrongful Discharge in Violation of Public Policy. Deo contends he was wrongfully terminated in violation of public policies barring discrimination and retaliation. A discharge is wrongful and gives rise to a tort action if it contravenes a clear mandate of public policy. Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 232, 685 P.2d 1081
(1984); Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 941, 913 P.2d 377
(1996). Deo makes no argument connecting the wrongful discharge doctrine to the evidence he has presented. Nor does he suggest how the public policy doctrine would support a claim which is insufficient under the statutes enacted to express those very policies. Deo’s public policy claims were properly dismissed.

Hostile Work Environment Claims. Deo alleges he experienced a racially hostile work environment. To establish such a claim, an employee must show racial harassment serious enough to affect the terms or conditions of employment, which can be imputed to the employer. Fisher v. Tacoma School Dist. No. 10, 53 Wn. App. 591, 769 P.2d 318 (1989). `Casual, isolated or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law.’ Glasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 406, 693 P.2d 708 (1985). To affect the conditions of employment, the harassment must be `sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.’ Id.

Deo fails to show that the conduct he describes was such as to affect the terms and conditions of his employment. Judge Downing was unable to find any evidence of offensive race-based conduct:

It seems to me that the plaintiff’s claim boils down to taking Mr. Curley’s crudely expressed comment about Whoopie Goldberg’s appearance and, from that meager source, attaching racist interpretations to a few highly ambiguous comments. . . . [T]his scant evidence requires far too great a stretch to justify a trial on this claim.

Clerk’s Papers at 437. We agree.

Deo’s Claims Against Curley
Discrimination on the Basis of Race and Sexual Orientation. Deo contends the evidence creates a fact issue as to whether Curley is liable under the WLAD for unfairly criticizing Deo’s performance, discriminating against him directly, and aiding and abetting King’s prohibited activities, because of racial and anti-union bias. Under the WLAD, `individual supervisors, along with their employers, may be held liable for their discriminatory acts.’ Brown v. Scott Paper Worldwide Co., 143 Wn.2d 349, 361, 20 P.3d 921 (2001). But John Curley was not a supervisor. As Deo acknowledges, his supervisors were the Evening Magazine executive producers. Deo presents no basis for personal liability on the part of John Curley.

Intentional Infliction of Emotional Distress. Deo contends issues of fact exist regarding his claim against Curley for the tort of outrage/intentional infliction of emotional distress. The elements of the tort of outrage are: “(1) extreme and outrageous conduct; (2) intentional or reckless infliction of emotional distress; and (3) actual result to the plaintiff of severe emotional distress.” Birklid v. Boeing Co., 127 Wn.2d 853, 867, 904 P.2d 278 (1995) (quoting Rice v. Janovich, 109 Wn.2d 48, 61, 742 P.2d 1230 (1987)). The conduct in question must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. (quoting Grimsby v. Samson, 85 Wn.2d 52, 59, 530 P.2d 291 (1975)). Whether conduct is sufficiently outrageous is ordinarily for the jury, if reasonable minds could differ on the question.

Id.

Here, reasonable minds could not differ. Curley’s conduct, as described by Deo, was not so extreme or outrageous as to raise a question of fact about liability.[9]

Tortious Interference with Contract. Deo contends the court erred in dismissing his claim that Curley tortiously interfered with his employment contract. See Sea-Pac Co., Inc. v. United Food and Commercial Workers Local 44, 103 Wn.2d 800, 805, 699 P.2d 217 (1985). But Deo presented no evidence that Curley intentionally interfered with his employment and caused his discharge. The court did not err in granting summary judgment on this claim.

CONCLUSION
In sum, Deo’s claims all are either barred by collateral estoppel, or unsupported by any evidence suggesting a triable issue of fact. The trial court did not err in dismissing the complaint.

Affirmed.

GROSSE and BECKER, JJ., concur.