Gipson et al v. Reed et al, No. 2:2018cv00951 - Document 27 (W.D. Wash. 2018)
Court Description: ORDER granting Defendant Marcella Flemming Reed's 13 Motion for Summary Judgment and denying Plaintiffs 19 Motion to Continue. All claims against Ms. Reed are hereby DISMISSED. Signed by U.S. District Judge John C Coughenour. (TH)
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Gipson et al v. Reed et al Doc. 27 THE HONORABLE JOHN C. COUGHENOUR 1 2 3 4 5 6 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT SEATTLE 7 8 9 RON and SHIRLEY GIPSON, a married couple, 10 CASE NO. C18-0951-JCC ORDER Plaintiffs, 11 v. 12 MARCELLA FLEMING REED, et al., 13 Defendants. 14 15 This matter comes before the Court on Defendant Marcella Fleming Reed’s motion for 16 17 18 19 20 21 22 23 24 25 26 summary judgment (Dkt. No. 13) and Plaintiffs’ motion to continue (Dkt. No. 19). Having thoroughly considered the parties’ briefing and the relevant record, the Court finds oral argument unnecessary and hereby GRANTS Defendant’s motion (Dkt. No. 13) and DENIES Plaintiffs’ motion (Dkt. No. 19) for the reasons explained herein. I. BACKGROUND Plaintiffs’ claims arise out of a workplace investigation that Ms. Reed and her law firm, MFR Law Group PLLC (“MFR”) conducted regarding Equal Employment Opportunity (“EEO”) complaints filed by Ms. Reed’s co-defendants. (Dkt. No. 13 at 1.) Snohomish County hired Ms. Reed to perform an independent investigation into complaints of racial discrimination, sexual harassment, and retaliation at the Denny Juvenile Justice Center. (Id.) Plaintiff Ron Gipson, a ORDER C18-0951-JCC PAGE - 1 Dockets.Justia.com 1 Juvenile Correction Officer at the Center, was a subject of the investigation. (Id.) Mr. Gipson 2 brings suit against Ms. Reed based on certain information included in MFR’s final report to the 3 County. Specifically, he objects to the inclusion of statements a County employee made to 4 investigators regarding a supervisor’s failure to address allegations of inappropriate past sexual 5 conduct by Mr. Gipson. (Dkt. Nos. 13 at 6, 14 at 11, 18 at 6.) The report includes claims by the 6 employee that some 13 or 14 years earlier, another co-worker had told the supervisor that she 7 “slept” with Mr. Gipson, and that in 2004 or 2005, she told the supervisor that Mr. Gipson had 8 been “forceful” in his sexual contact with her. (Dkt. No. 17 at 4–5, 18 at 6.) The report also 9 stated that the investigation did not determine if the allegations were true and that the alleged 10 incident took place more than ten years ago, occurred off-site, was not related to a work event, 11 involved no police report or charge, and was not reported during or at work. (Dkt. Nos 14 at 11, 12 18 at 6.) 13 Plaintiffs assert the following claims against Ms. Reed based on her decision to include 14 this information in her report to the County: (1) Invasion of Privacy or False Light Disclosure, 15 (2) Negligent Infliction of Emotional Distress (“NIED”), (3) Defamation, (4) Loss of 16 Consortium, (5) Fourth and Fifth Amendment violations pursuant to 42 U.S.C. section 1983, and 17 (6) Conspiracy to Violate Civil Rights pursuant to 42 U.S.C. section 1985(3). (Dkt. No. 13 at 1.) 18 Plaintiffs initially filed this action pro se in King County Superior Court on December 8, 2017. 19 (Dkt. No. 17 at 1.) On June 14, 2018, the state court partially dismissed Plaintiffs’ claims on a 20 motion for summary judgment. (Id. at 2.) Snohomish County was subsequently joined as a party 21 to the action and removed the case to federal court. (Id.) Ms. Reed now moves for summary 22 judgment on all claims against her. (Id. at 1.) 23 II. DISCUSSION 24 A. 25 “The court shall grant summary judgment if the movant shows that there is no genuine 26 Legal Standard dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. ORDER C18-0951-JCC PAGE - 2 1 Civ. P. 56(a). In making such a determination, the Court must view the facts and justifiable 2 inferences to be drawn therefrom in the light most favorable to the nonmoving party. Anderson v. 3 Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). Once a motion for summary judgment is properly 4 made and supported, the opposing party “must come forward with ‘specific facts showing that 5 there is a genuine issue for trial.’” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 6 574, 587 (1986) (emphasis in original) (quoting Fed. R. Civ. P. 56(e)). Summary judgment is 7 appropriate “unless there is sufficient evidence favoring the non-moving party for a jury to return 8 a verdict for that party.” Anderson, 477 U.S. at 249. 9 B. 10 11 Analysis 1. Invasion of Privacy/False Light Plaintiffs concede that summary judgment on this cause of action is appropriate because 12 they failed to file suit before the applicable statute of limitations expired. (Dkt. No. 17 at 2.) This 13 cause of action is DISMISSED with prejudice. 2. 14 Defamation 15 Plaintiffs also concede that summary judgment on this cause of action is appropriate 16 because they failed to file suit before the applicable statute of limitations expired. (Id.) This 17 cause of action is DISMISSED with prejudice. 3. 18 Section 1983 19 In response to Ms. Reed’s argument against section 1983 liability, Plaintiffs claim she is 20 not listed as a defendant for this cause of action. (Dkt. No. 17 at 2.) If this is the case, Plaintiffs’ 21 complaint is misleading, as it asserts this cause of action against “Defendants” generally. (Dkt. 22 No. 1-2 at 14.) However, because Plaintiffs indicate they did not intend to bring a section 1983 23 claim against Ms. Reed, this claim is DISMISSED as to this Defendant. 24 25 26 4. Negligent Infliction of Emotional Distress Plaintiffs’ NIED claim arises out of Ms. Reed’s inclusion of information in her investigative report that Mr. Gipson feels was private and outside of the scope of the sexual ORDER C18-0951-JCC PAGE - 3 1 harassment and workplace discrimination investigation. (Dkt. No. 13 at 6.) Specifically, the 2 report included information about a co-worker’s statements regarding Mr. Gipson’s past sexual 3 activity with another co-worker. See supra section I. Plaintiffs allege that the inclusion of this 4 information in the report caused them emotional harm. (Dkt. No. 1-2 at 11.) 5 To prevail on a NIED claim, a plaintiff must establish the traditional elements of a tort 6 claim: duty, breach, proximate cause, and injury. Snyder v. Med. Serv. Corp. of E. Wash., 988 7 P.2d 1023, 1028 (Wash. Ct. App. 1999). These elements place limits on a defendant’s liability 8 for emotional distress, which is “a fact of life.” Id. A general duty to others arises “only with 9 respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous.” 10 Bishop v. State, 889 P.2d 959, 962 (Wash. Ct. App. 1995). Conduct is unreasonably dangerous 11 when its risks outweigh its utility. Id. 12 In Bishop v. State, a Washington court of appeals weighed these considerations in the 13 context of a workplace misconduct investigation. Id. The court found that “the utility of 14 permitting employers to handle workplace disputes outweighs the risk of harm to employees.” 15 Id. On this basis, the court ruled that “absent a statutory or public policy mandate, employers do 16 not owe employees a duty to use reasonable care to avoid inadvertent infliction of emotional 17 distress when responding to workplace disputes.” Id. at 963. 18 The same principles apply here to a contractor hired to perform an investigation into a 19 workplace dispute. 1 The utility of allowing an independent investigator to provide an employer 20 any potentially relevant information to assist them in handling a workplace dispute outweighs 21 any risk of emotional distress to the employee. Thus, Ms. Reed did not owe Mr. Gipson a duty of 22 reasonable care when including potentially relevant information in her report. 23 24 25 26 1 The parties dispute whether Ms. Gipson was an independent contractor or a “functional employee” of the County. (See Dkt. No. 17 at 12.) The Court notes that for purposes of antiSLAPP immunity, Plaintiffs argue Ms. Reed is an employee, which would bring the Bishop case directly on point here. (Id. at 5.) However, the Court finds it need not determine the exact nature of Ms. Reed’s employment to apply the principles the state court set forth in Bishop. ORDER C18-0951-JCC PAGE - 4 1 Plaintiffs argue that Bishop does not apply here because there is a public policy mandate 2 that imposes a duty of care on Ms. Reed: the Washington State Constitution’s prohibition on 3 invasion of privacy. (Dkt. No. 17 at 13) (citing Wash. Const Art. 1, § 7). Plaintiffs support this 4 position with reference to the legal standard for common-law invasion of privacy, a claim which 5 they have conceded should be dismissed. (Id. at 2, 13.) This argument is inapposite and 6 unavailing. Plaintiffs cannot bootstrap their NIED claim with a dismissed cause of action. 7 The fact that invasion of privacy is generally prohibited under Washington law does not 8 establish a duty for Ms. Reed to avoid inflicting emotional distress on Mr. Gipson by disclosing 9 information to the County that could be considered private. The information was relevant to the 10 workplace misconduct being investigated. The allegations involved a co-worker and were shared 11 with investigators to support a claim that supervisors failed to address Mr. Gipson’s 12 inappropriate sexual behavior. (See Dkt. No. 14 at 11.) Moreover, the potential disclosure of 13 personal information is one aspect of harm the Court has weighed in determining that the utility 14 of a complete investigation into workplace misconduct outweighs any potential harm to 15 employees. 2 16 The Court finds that Ms. Reed had no duty to Mr. Gipson avoid inadvertently inflicting 17 emotional harm by disclosing to the County potentially private information relevant to her 18 investigation. Therefore, the Court GRANTS Ms. Reed summary judgment on Plaintiffs’ NIED 19 claim. 20 5. Loss of Consortium 21 Plaintiffs’ loss of consortium claim depends on the existence of an underlying tort. 22 Francom v. Costco Wholesale Corp., 991 P.2d 1182, 1195 (Wash. Ct. App. 2000) (“there can be 23 no claim for loss of consortium if no legal wrong has been committed against the impaired 24 25 26 2 The Court also considered the fact that Ms. Reed was not involved in the decision to publish the report. The County decided what information was publicly released and published a version of the report with Mr. Gipson’s name redacted. (Dkt. Nos. 20 at 4, 18 at 7.) ORDER C18-0951-JCC PAGE - 5 1 spouse”). Having dismissed all substantive tort claims against this Defendant, the Court finds it 2 appropriate to DISMISS Plaintiff’s loss of consortium claim as to Ms. Reed. 3 6. 4 Conspiracy to Violate Civil Rights Similarly, Plaintiffs’ conspiracy claim is also dependent on the existence of an underlying 5 cause of action. Oregon Laborers-Employers Health & Welfare Tr. Fund v. Philip Morris Inc., 6 185 F.3d 957, 969 (9th Cir. 1999) (where “underlying claims fail, plaintiffs’ civil conspiracy 7 claim must also fail). Having dismissed all underlying tort claims against this Defendant, the 8 Court finds it appropriate to DISMISS Plaintiff’s conspiracy claim as to Ms. Reed. 9 C. 10 Plaintiff’s Motion to Continue Plaintiffs move to continue Ms. Reed’s motion for summary judgment under Federal 11 Rule of Civil Procedure 56(d) (Dkt. No. 19). They request additional time to depose Ms. Reed 12 and County employees regarding Ms. Reed’s employment relationship with the County. (Id. at 13 2.) This information is relevant only to Ms. Reed’s assertion of anti-SLAPP immunity. Because 14 the Court finds that Plaintiffs’ claims fail on other grounds, this information is not essential to 15 Plaintiffs’ opposition to summary judgment. See State of Cal., on Behalf of Cal. Dep’t of Toxic 16 Substances Control v. Campbell, 138 F.3d 772, 779 (9th Cir. 1998). Therefore, Plaintiffs’ motion 17 to continue (Dkt. No. 19) is DENIED. 18 III. CONCLUSION 19 For the foregoing reasons, Defendant Marcella Flemming Reed’s motion for summary 20 judgment (Dkt. No. 13) is GRANTED. All claims against Ms. Reed are hereby DISMISSED. 21 DATED this 23rd day of August 2018. 24 A 25 John C. Coughenour UNITED STATES DISTRICT JUDGE 22 23 26 ORDER C18-0951-JCC PAGE - 6
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