McBREARTY v. LIVENGOOD, 29232-7-II (Wash.App. 8-5-2003)

No. 29232-7-IIThe Court of Appeals of Washington, Division One.
Filed: August 5, 2003 UNPUBLISHED OPINION

Appeal from Superior Court of Pierce County Docket No: 01-2-07083-1 Judgment or order under review Date filed: 07/26/2002

Counsel for Appellant(s), Jenean McBrearty (Appearing Pro Se), 3833 40th Street, De Moines, IA 50310.

Counsel for Respondent(s), Deborah Lynn Carstens, Attorney at Law, 2400 Westlake Ofc Twr, 1601 5th Ave, Seattle, WA 98101-3621.

Jerret E. Sale, Attorney at Law, 2400 Westlake Offc Twr, 1601 5th Ave, Seattle, WA 98101-3621.

SEINFELD, P.J.

Jenean McBrearty was a site director for Central Texas College (CTC). After CTC terminated her, McBrearty sued Carol Livengood, her former subordinate, for invasion of privacy, conspiracy, age discrimination, and outrage. The trial court granted Livengood’s motion for summary judgment and McBrearty appeals. Finding no error, we affirm.

FACTS
In February 2001, William Alexander, Dean of CTC’s Continental Campus, hired 54-year-old McBrearty to be the site director of the college’s new campus at Fort Lewis Army Base. McBrearty started work on March 1, 2001, with Alexander as her supervisor. Livengood began working at CTC’s Fort Lewis campus as a teaching assistant in February 2001. Soon after, Ulla Torres, a CTC employee, asked Livengood to `cover’ the CTC office until McBrearty arrived. Clerk’s Papers (CP) at 581. McBrearty met Livengood and Torres on March 1. According to Torres, McBrearty told her that she did not need Livengood and did not want Livengood in her office. Alexander was at the Fort Lewis campus between March 7 and March 20, and informed McBrearty that Livengood would be CTC’s site registrar with McBrearty as her supervisor. McBrearty questioned Alexander about Livengood’s qualifications and told him that she had `serious reservations’ about him hiring someone without her input. CP at 692. On March 16, Livengood began work as the registrar. Livengood believed that McBrearty did not like her, trust her, or want her around. She feared her job security was at risk and spoke with Alexander about her problems with McBrearty. Alexander instructed her to talk to McBrearty about her concerns. Livengood and McBrearty discussed Livengood’s concerns a couple of days later. McBrearty later testified that she thought the conversation was private, but admitted that Livengood never said that she would not disclose the conversation. Livengood told McBrearty that she felt that McBrearty treated her like she was stupid and that she was dissatisfied with McBrearty’s treatment of her.

They discussed what Livengood characterized as McBrearty’s mean and demeaning treatment of her along with trust and privacy issues. Livengood began crying after their conversation and went to Torres, requesting placement in her former position. Torres told Livengood that her former position was no longer available and recommended that she keep a log regarding her concerns with McBrearty. Livengood began her log that night and gave Torres a copy of it.[1] Torres faxed a copy of the log to Alexander. On March 26, McBrearty received a letter from Alexander, which she considered to be a reprimand letter. Alexander informed McBrearty that Livengood had approached him regarding McBrearty’s degrading treatment and that he had encouraged Livengood to speak with McBrearty. Alexander stated: ‘[T]his does not sound like cooperation, communication, collaboration or teamwork. This sounds like — I’m the boss and you’re the lowlife — you do what I say and no more. . . . You have set up an adversary relationship from the beginning.’ CP at 646. McBrearty felt betrayed and believed that Livengood had set up their conversation and had told others about it. She wrote to CTC’s Deputy Chancellor of Campus Operations, Jim Yeonopolus, attaching a copy of Alexander’s letter. In her letter, she said that Alexander did not want her as the site director, that Alexander was rude to her, and that Alexander was purposefully creating a hostile working environment because he intended to destroy her career; she also made accusations that Alexander had a drug problem. Yeonopolus replied to McBrearty, informing her that he would investigate her allegations but stating that Alexander is her supervisor and her `first step in the chain of supervision.’ CP at 554. He noted that it appeared that she had developed a personality conflict with Alexander and recommended that she reply to Alexander’s letter. McBrearty next wrote to Alexander, asserting that the quotes used in his letter were transcribed from a tape recording and demanding that he turn over any recording to the FBI. Alexander replied that his letter was based on written correspondence and that he was unaware of any taping. McBrearty received a termination notice from Alexander while she was at work on April 6, 2001. The notice stated, in part: `We have been unable to resolve our differences and it has been decided that in the best interest of the college you be released during your training period. We do not have the right fit of person to the position.’ CP at 557. McBrearty’s replacement, Marget Hagen, was 49 years old. McBrearty brought wrongful termination, fraudulent hiring, invasion of privacy, intentional infliction of emotional distress, negligent infliction of emotional distress, conspiracy, and age discrimination claims against Alexander, Livengood, Yeonopolus, and CTC. The trial court granted the defendants’ motion to dismiss under the theory of sovereign immunity as McBrearty had sued them in their official capacities. The trial court noted that McBrearty could amend the complaint to sue the defendants in their individual capacities. McBrearty amended her complaint, dismissing Alexander, Yeonopolus, and CTC, and suing Livengood in her personal capacity. The amended complaint alleged invasion of privacy, intentional infliction of emotional distress, conspiracy, and age discrimination. Livengood moved for summary judgment on June 26, 2002, and noted the matter for hearing on July 26. McBrearty moved to continue the hearing under CR 56(f), claiming that she needed time to serve James Lindley, CTC’s counsel. She also noted a July 26 hearing on her motions to continue the summary judgment hearing and reset the trial date. The trial court informed McBrearty that the judge would not hear motions on July 26, and that the next available docket was in August.

When McBrearty appeared telephonically at the July 26 hearing, she stated that she had no idea that a hearing would occur that day. The substitute judge asked her if she was prepared to proceed on her CR 56(f) motion, and McBrearty stated: `Okay. Yes.’ Report of Proceedings (7/26/02) at 11.[2] The trial court denied McBrearty’s motion to continue. After noting McBrearty’s objection to its hearing the summary judgment motion, the substitute judge granted summary judgment to Livengood. The trial court later denied McBrearty’s motion for reconsideration and motion for sanctions for `Judge shopping.’ CP at 744. McBrearty appeals.

Discussion I. Standard of Review
We engage in the same inquiry as the trial court when reviewing an order for summary judgment. Mountain Park Homeowners Ass’n Inc. v. Tydings, 125 Wn.2d 337, 341, 883 P.2d 1383 (1994). Summary judgment is appropriate `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); Hutchins v. 1001 Fourth Ave. Assocs., 116 Wn.2d 217, 220, 802 P.2d 1360 (1991). To defeat a motion for summary judgment, the nonmovant may not `rest upon the mere allegations or denials’ in its pleadings, but must demonstrate the existence of facts that could support a jury finding in its favor. CR 56(e). If a party fails to produce evidence supporting an element on which it bears the burden at trial, the court should enter summary judgment. Seven Gables Corp. v. MGM/UA Entm’t Co., 106 Wn.2d 1, 12-13, 721 P.2d 1 (1986). In ruling, the court must consider the evidence and all inferences therefrom in favor of the nonmoving party. Wellbrock v. Assurance Co. of Am., 90 Wn. App. 234, 239, 951 P.2d 367 (1998). But if reasonable minds could reach but one conclusion from the evidence, the court should grant summary judgment. Wellbrock, 90 Wn. App. at 239.

II. Invasion of Privacy
McBrearty claims that she had an expectation of privacy in her conversation with Livengood and that whether disclosure of that conversation was offensive is a question of fact. She also claims that Livengood invaded her privacy by keeping a log of interactions with her, and insinuates that Livengood violated RCW 9.73.030[3] when she `probably tape recorded’ their conversation. Br. of Appellant at 12.

McBrearty does not discuss any Washington caselaw or examine the elements of any of the four types of invasion of privacy in her argument. Thus, we will not consider this issue further. See City of Bremerton v. Sesko, 100 Wn. App. 158, 162, 995 P.2d 1257 (2000) (appellate courts need not address argument that appellant fails to support with relevant authority).

III. Outrage[4]
Regarding the outrage claim, McBrearty argues that she presented evidence of emotional stress and that whether Livengood intended to cause her stress is an issue of material fact.

The tort of outrage requires proof of three elements: (1) extreme and outrageous conduct; (2) intentional or reckless infliction of emotional distress; and (3) actual result to plaintiff of severe emotional distress. Kloepfel v. Bokor, 149 Wn.2d 192, 195, 66 P.3d 630 (2003). Claims for intentional infliction of emotional distress must be predicated on behavior “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.” Kloepfel, 149 Wn.2d at 196 (quoting Grimsby v. Samson, 85 Wn.2d 52, 59, 530 P.2d 291 (1975)) (emphasis omitted). The conduct must be of the type that would arouse the resentment of average community members against the actor and lead them to exclaim `Outrageous!’ Kloepfel, 149 Wn.2d at 196. Accordingly, the tort of outrage does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Kloepfel, 149 Wn.2d at 196.

In determining whether conduct is sufficiently outrageous, the court must consider: (1) the position occupied by the defendant; (2) whether the plaintiff was particularly susceptible to emotional distress, and if the defendant knew this fact; (3) whether the defendant’s conduct may have been privileged under the circumstances; (4) whether the degree of emotional distress caused by a party was severe as opposed to mere annoyance, inconvenience, or normal embarrassment; and (5) whether the defendant was aware that there was a high probability that his or her conduct would cause severe emotional distress and proceeded in a conscious disregard of it. Spurrell v. Block, 40 Wn. App. 854, 862-63, 701 P.2d 529 (1985). McBrearty does not identify the factual basis for her outrage claim; instead, she claims that losing her job is outrageous. Whether certain conduct is sufficiently outrageous is ordinarily a question for the trier of fact, but the trial court must first determine that reasonable minds could differ on whether the conduct has been sufficiently extreme and outrageous to result in liability. Spurrell, 40 Wn. App. at 862. Discharge itself is not sufficient to support a claim of outrage.[5] Dicomes v. State, 113 Wn.2d 612, 630, 782 P.2d 1002 (1989). McBrearty’s evidence of Livengood’s conduct does not rise to the level of outrageous conduct. Viewing the evidence in the light most favorable to McBrearty, the evidence shows that while helping McBrearty look at her own email, Livengood said that it is difficult for old people to get the hang of computers; she ignored McBrearty; on one occasion, she was belligerent and nasty to McBrearty, telling McBrearty that she did not know how to do her job; she recorded her interactions with McBrearty; and she opened an email addressed to McBrearty. This is insufficient to show Livengood’s intent to cause McBrearty distress. Thus, the evidence does not meet the conduct or intent elements of outrage. Nor is there evidence that McBrearty suffered severe emotional distress. “Emotional distress’ includes all `highly unpleasant mental reactions, such as fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin, disappointment, worry, and nausea.” Kloepfel, 149 Wn.2d at 203 (quoting Restatement (Second) of Torts sec. 46, cmt. j (1965)). Severe emotional distress is not “transient and trivial’ but distress such `that no reasonable man could be expected to endure it.” Kloepfel, 149 Wn.2d at 203 (quoting Restatement sec. 46, cmt. j). Although the jury is to determine the existence of severe emotional distress, the court must determine whether a jury could find severe emotional distress on the evidence. Kloepfel, 149 Wn.2d at 202.

The evidence here indicated that McBrearty had high blood pressure even before taking the CTC job. Evidence that McBrearty wept hysterically, was depressed, and was upset about her future after her termination alone is insufficient to support a finding of severe emotional distress. McBrearty’s evidence is simply lacking as to the elements of outrage.

Because she failed to present evidence to support her outrage claim, the court properly dismissed the claim on summary judgment.

IV. Age Discrimination
McBrearty next claims that Livengood violated the Washington Law Against Discrimination, specifically RCW 49.60.220, by aiding, abetting, and encouraging McBrearty’s superiors to discriminate against her. She contends that Livengood was `the retaliatory instrument who set up the pretext for McBrearty’s termination and the deliberate besmirching of McBrearty’s employment record.’ Br. of Appellant at 27. She further claims that there is no evidence that she `was not doing her job.’ Br. of Appellant at 18.

RCW 49.60.180(2) makes it unlawful for employers to discharge or bar any person from employment because of age. Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 188, 23 P.3d 440 (2001). The statute defines ‘[e]mployer’ as including `any person acting in the interest of an employer, directly or indirectly.’ RCW 49.60.040(3); Brown v. Scott Paper Worldwide Co., 143 Wn.2d 349, 357, 20 P.3d 921 (2001). The Brown court held that RCW 49.60.040(3) contemplates that individual supervisors may be liable for discriminatory acts. 143 Wn.2d at 358, 361.

The Brown court stated that RCW 49.60.220 shows a legislative intent to reach individual wrongdoers in the workplace, not just employers. 143 Wn.2d at 360. RCW 49.60.220 states: `It is an unfair practice for any person to aid, abet, encourage, or incite the commission of any unfair practice, or to attempt to obstruct or prevent any other person from complying with the provisions of this chapter or any order issued thereunder.’ McBrearty alleged in her complaint that Livengood aided and abetted McBrearty’s superiors to discriminate against her.[6] Because McBrearty claims that Livengood acted in the interests of CTC, Livengood could be held liable under RCW 49.60.220. See Jenkins v. Palmer, 116 Wn. App. 671, 675-76, 66 P.3d 1119 (2003). Thus, Livengood’s defense that she had no power to terminate McBrearty is irrelevant. But McBrearty presented no evidence that Livengood aided, abetted, encouraged, or incited CTC or Alexander to discriminate against her. See Rody v. Hollis, 81 Wn.2d 88, 94-95, 500 P.2d 97 (1972) (to prove aiding and abetting in housing discrimination under RCW 49.60.220, substantial proof that person engaged in transaction for purpose of assisting discrimination required).

The only evidence of Livengood’s purposes shows that she went to Alexander and Torres because she believed that McBrearty disliked her and because she was concerned about her job security. To overcome a summary judgment motion, McBrearty had to do more than speculate or make conclusory statements. Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57, 66, 837 P.2d 618 (1992). Thus, the trial court did not err when it dismissed McBrearty’s age discrimination claim.

V. Conspiracy
McBrearty essentially argues that she submitted facts that could allow a jury to find that Livengood conspired with Alexander and Torres to terminate her.

To establish a civil conspiracy, a plaintiff 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 Wn. App. 732, 740, 998 P.2d 367 (2000).

Mere suspicion or commonality of interests is insufficient to prove a civil conspiracy. Wilson v. State, 84 Wn. App. 332, 351, 929 P.2d 448
(1996).

When the facts and circumstances relied upon to establish a conspiracy are as consistent with a lawful or honest purpose as with an unlawful undertaking, they are insufficient. Lewis Pac. Dairymen’s Ass’n v. Turner, 50 Wn.2d 762, 772, 314 P.2d 625 (1957).

In alleging conspiracy, McBrearty relies upon the following facts:

Livengood spoke with Alexander about her conflicts with McBrearty before speaking with McBrearty; Livengood quoted McBrearty to Torres; Livengood documented McBrearty’s movements and conversations and gave the record to Torres; and Livengood had McBrearty’s computer access code and used it to access the computer and check McBrearty’s email. She essentially concedes that she has no evidence that Livengood, Alexander, and Torres formed an oral agreement to terminate her, stating that existence of such an oral agreement is an issue of fact that precludes summary judgment. But McBrearty must present more than her suspicion of an agreement to avoid summary judgment. Wilson, 84 Wn. App. at 351. Assuming the truth of the above facts, McBrearty has not presented evidence that Livengood combined with Alexander and Torres to accomplish an unlawful act or a lawful act by unlawful means or that they entered an agreement to accomplish the act. Nor is it clear that McBrearty’s termination was unlawful. Despite McBrearty’s age discrimination allegation, there is evidence that Alexander fired her due to personality conflicts with the Fort Lewis CTC employees and others at the base. Moreover, McBrearty presented no evidence that Livengood illegally tape recorded their conversation. Again, McBrearty cannot rest on the mere allegations of her pleadings; she must set forth specific facts showing that there is a genuine issue of material fact. CR 56(e). As she failed to do so regarding her conspiracy claim, the trial court properly granted summary judgment.

VI. CR 56(f) Motion
McBrearty next assigns error to the trial court’s denial of her CR 56(f)[7] motion for a continuance.[8] She suggests that this violated her federal due process and equal protection rights.

McBrearty contends that she needed the continuance to obtain a doctor’s report regarding her stress related symptoms to support her outrage claim. But she did not show why she had not obtained this earlier. Further, she indicated to the substitute judge that she was ready to proceed; it was only after the substitute judge had already ruled on the CR 56(f) motion that she first argued that she needed additional time to obtain a doctor’s report. Although McBrearty alleges in her reply brief that the trial court `indulge[d] defense counsel’ but denied her due process and the opportunity to fully litigate her case, she does not show any trial court error or even discuss CR 56(f). Reply Br. of Appellant at 1.

An appellant’s brief should contain argument in support of the issues presented for review. RAP 10.3(a)(5). We will not consider claims not argued in the appellate brief. Hollis v. Garwall, Inc., 137 Wn.2d 683, 689
n. 4, 974 P.2d 836 (1999). Because McBrearty fails to provide argument as to how the trial court erred when it denied her CR 56(f) motion, we do not consider this claim.

VII. Attorney Fees
McBrearty seeks attorney fees on appeal. But as she provides no supporting argument, we deny her request. RAP 18.1(b); Wilson Court Ltd. P’ship v. Tony Maroni’s, Inc., 134 Wn.2d 692, 710 n. 4, 952 P.2d 590
(1998) (separate section in brief devoted to fees issue is mandatory). Accordingly, we affirm.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

HOUGHTON and ARMSTRONG, JJ., concur.