Johnson v. The Boeing Company et al

Filing 42

ORDER granting in part and denying in part Defendant Barbara Wiley's 22 Motion to Dismiss; The defamation and intentional infliction of emotional distress claims against defendant Wiley are hereby DISMISSED. Plaintiff may proceed with his negligent infliction of emotional distress claim. Signed by Judge Robert S. Lasnik. (SWT)

1
2
3
4
5

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF WASHINGTON
AT SEATTLE

6
7
8
9
10
11
12
13

_______________________________________
)
RALPH G. JOHNSON,
)
)
Plaintiff,
)
v.
)
)
THE BOEING COMPANY, et al.,
)
)
Defendant.
)
_______________________________________)

Civil Case No. C17-0706RSL
ORDER GRANTING IN PART
DEFENDANT WILEY’S MOTION TO
DISMISS

14

This matter comes before the Court on “Defendant Barbara Wiley’s Motion to Dismiss
15

Pursuant to Fed. R. Civ. P. 12(b)(6).” Dkt. # 22. Plaintiff alleges that defendant Wiley lodged a
16

false and retaliatory complaint of sexual harassment against him after he removed her from a
17

lead position at Boeing. Plaintiff asserts claims of defamation (Count IX), intentional infliction
18

of emotional distress (Count X), and negligent infliction of emotional distress (Count XI) against
19

Wiley. Defendant seeks dismissal of all claims against her, arguing that they are barred by the
20

applicable statutes of limitation and/or are insufficiently pled.
21

The question for the Court on a motion to dismiss is whether the facts alleged in the
22

complaint sufficiently state a “plausible” ground for relief. Bell Atl. Corp. v. Twombly, 550 U.S.
23

544, 570 (2007).
24
25

A claim is facially plausible when the plaintiff pleads factual content that allows
the court to draw the reasonable inference that the defendant is liable for the

26
ORDER GRANTING IN PART DEFENDANT
WILEY’S MOTION TO DISMISS - 1

1
2
3
4
5

misconduct alleged. Plausibility requires pleading facts, as opposed to conclusory
allegations or the formulaic recitation of elements of a cause of action, and must
rise above the mere conceivability or possibility of unlawful conduct that entitles
the pleader to relief. Factual allegations must be enough to raise a right to relief
above the speculative level. Where a complaint pleads facts that are merely
consistent with a defendant’s liability, it stops short of the line between possibility
and plausibility of entitlement to relief. Nor is it enough that the complaint is
factually neutral; rather, it must be factually suggestive.

6

Somers v. Apple, Inc., 729 F.3d 953, 959-60 (9th Cir. 2013) (internal quotation marks and

7

citations omitted). All well-pleaded factual allegations are presumed to be true, with all

8

reasonable inferences drawn in favor of the non-moving party. In re Fitness Holdings Int’l, Inc.,

9

714 F.3d 1141, 1144-45 (9th Cir. 2013). If the complaint fails to state a cognizable legal theory

10

or fails to provide sufficient facts to support a claim, dismissal is appropriate. Shroyer v. New

11

Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010).

12

Having reviewed the complaint and the memoranda submitted by the parties, the Court

13

finds as follows:

14

A. DEFAMATION

15

Plaintiff alleges that, on October 3, 2014, he learned that defendant Wiley “was

16

communicating to other employees that Johnson groped her . . . .” Dkt. # 1 at ¶ 2.20. Although

17

the exact date is not specified, Wiley subsequently filed a sexual harassment complaint against

18

plaintiff. Plaintiff was demoted on or about March 26, 2015, in part as a result of the sexual

19

harassment complaint. In Washington, defamation claims are subject to a two-year statute of

20

limitations. RCW 4.16.100(1). This lawsuit was filed on May 5, 2017.

21

Plaintiff argues that his defamation claim is not time-barred because he could not have

22

immediately known of the cause of his injuries and/or because equitable tolling applies. Under

23

the discovery rule, the limitations period does not begin to run until plaintiff knew or, in the

24

exercise of diligence, should have known the facts giving rise to the claim. Plaintiff relies on

25

cases in which it was unclear when the claimant learned of the defamatory statements. In JM

26
ORDER GRANTING IN PART DEFENDANT
WILEY’S MOTION TO DISMISS - 2

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20

Martinac Shipbuilding Corp. v. Wash., 363 Fed. Appx. 529, 531-32 (9th Cir. 2010), for example,
the plaintiff suffered unexplained injuries but did not know that defendants’ had made
defamatory comments that caused those injuries. In Kittinger v. Boeing Co., 21 Wn. App. 484,
488 (1978), the plaintiff heard rumors that bad things were being said about him, but they were
not specific enough to put plaintiff on notice that he had been defamed. In this case, in contrast,
plaintiff alleges that he was aware that Wiley had publicly accused him of groping her in
October 2014. While plaintiff characterizes this information as a rumor, he was specifically
informed both of the statement and its content. If the statement were defamatory, plaintiff knew
it at the time. If there were any doubt as to whether Wiley had made such statements, he had a
duty to investigate and bring suit within the time allowed by law. In addition, the injuries arising
from the sexual harassment accusation and their causal connection to Wiley’s statements were
also known more than two years before this lawsuit was filed. The discovery rule cannot save
plaintiff’s defamation claim.
Plaintiff argues that defendant Wiley has taken steps to conceal her defamatory
statements, thereby justifying equitable tolling of the limitations period. As discussed above,
however, plaintiff had actual knowledge that Wiley had accused him of sexual harassment in
October 2014. Any subsequent concealment related to the confidentiality with which the
complaints was treated by Boeing does not and should not stop the clock. Nor is there any
indication that Wiley engaged in deception or gave false assurances that prevented plaintiff from
timely filing his claim. The defamation claim is time-barred.1

21
22
23
24
25

1

On the merits, defendant argues that the defamation claim fails because there was no
“unprivileged communication to a third party.” Eastwood v. Cascade Broadcasting Co., 106 Wn.2d 466,
470 (1986). Washington courts have held that intracorporate communications are not published for
purposes of a defamation claim because the corporation is essentially communicating with itself. Doe v.
Gonzaga Univ., 143 Wn.2d 687, 701 (2001), rev’d on other grounds, 536 U.S. 273 (2002). The privilege
extends to otherwise defamatory statements shared with a co-worker who has “a common interest in the
subject and is reasonably entitled to know the information.” Pate v. Tyee Motor Inn., Inc., 77 Wn.2d

26
ORDER GRANTING IN PART DEFENDANT
WILEY’S MOTION TO DISMISS - 3

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21

B. INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
The elements of the tort of outrage, or intentional infliction of emotional distress, are
(1) extreme or outrageous conduct, (2) intentional or reckless infliction of emotional distress,
and (3) severe emotional distress resulting from defendant’s conduct. Robel v. Roundup Corp.,
148 Wn.2d 35, 41 (2002). To be actionable, defendant’s conduct must be “so outrageous in
character, 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.” Grimsby v. Samson, 85
Wn.2d 52, 59 (1975). The question whether certain conduct is sufficiently outrageous is
ordinarily for the jury, but the Court must initially determine whether reasonable minds could
differ on the issue. Dicomes v. State, 113 Wn.2d 612, 630 (1989). Plaintiff alleges that Wiley
made knowingly false accusations of sexual harassment against him, that she intended to cause
him emotional distress, and that the statements did, in fact, cause him “emotional and physical
distress, psychological anxiety, depression, and physical illness.” Dkt. # 1 at ¶¶ 3.43-3.45.
Similar allegations in Lawson v. Boeing Co., 58 Wn. App. 261 (1990), were found
insufficiently extreme or outrageous to raise a question for the jury. In Lawson, female
employees complained that their supervisor sexually harassed them, resulting in the supervisor’s
demotion. Lawson asserted that the complaining employees “deliberately, maliciously and
outrageously lied about him,” assertions that mirror plaintiff’s allegations here and were taken as
true at the summary judgment stage. Nevertheless, the state court found that the complaints did
not reach the high threshold of outrageousness established in Grimsby. Id. at 270. The Court
likewise finds that plaintiff’s allegations, taken as true, do not state a viable claim of outrage.

22
23
24
25

819, 820-21 (1970). Intracorporate communications are not absolutely privileged, however. “[T]he
privilege may be lost if the employee publishes a defamatory statement to a co-employee not in the
ordinary course of his or her work or if the employee made a statement with actual malice.” Armijo v.
Yakima HMA, LLC, 868 F. Supp.2d 1129, 1139 (E.D. Wash. 2012). The allegations of the complaint
raise a plausible inference that one or both exceptions may apply here.

26
ORDER GRANTING IN PART DEFENDANT
WILEY’S MOTION TO DISMISS - 4

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

C. NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS
Defendant argues that an emotional distress claim based on the same conduct that gave
rise to an unsuccessful defamation claim cannot survive as an independent cause of action.
While there are cases that support that argument (Dworkin v. Hustler Magazine, Inc., 867 F.2d
1188, 1193 n.2 (9th Cir. 1988); Phillips v. World Pub. Co., 822 F. Supp.2d 1114, 1119-20 (W.D.
Wash. 2011)), they all involved the dismissal of the defamation claim on the merits, with the
implication being that plaintiff could not establish the underlying “extreme or outrageous
conduct” or breach of duty. The defamation claim in this case was dismissed because it was not
asserted in a timely manner, not because plaintiff cannot make out a viable cause of action.
Defendant cites Eastwood v. Cascade Broadcasting Co., 106 Wn.2d 466 (1986), for the
proposition that, if the underlying defamation claim is time barred, plaintiff should not be
permitted to seek any recovery based on the same set of facts. Eastwood does not compel such a
result. In that case, the Washington Supreme Court had to decide which statute of limitations
applied to an invasion of privacy/false light claim. The court noted the significant overlap
between the elements of the causes of action, the policy reasons for choosing a limitations period
based on the kinds of injuries at issue and the speed with which they become apparent to the
injured person, and the careful restrictions and limitations the courts had imposed on defamation
claims over the years. It ultimately concluded that the “duplication inherent in false light and
defamation claims” required that both claims share the same 2-year statute of limitations. Id. at
470-74. Emotional distress claims, on the other hand, have distinct elements, distinct injuries,
and have long been subject to a 3-year limitations period. No court has curtailed the statute
simply because the underlying conduct includes libelous or defamatory statements, and the Court
declines to do so here.
A claim for negligent infliction of emotional distress, like all negligence-based claims, is
tested against the established concepts of duty, breach, proximate cause, and damages. Hunsley

26
ORDER GRANTING IN PART DEFENDANT
WILEY’S MOTION TO DISMISS - 5

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

v. Giard, 87 Wn.2d 424, 434 (1976). Defendant argues that plaintiff has failed to allege facts
giving rise to a plausible inference that she had a duty to refrain from causing plaintiff emotional
distress and/or that he suffered cognizable damages. Washington courts generally agree that an
employer has no duty to provide a stress-free workplace: dealing with workplace disputes and
discipline will likely cause stress to the employees involved, and the employer is permitted to
handle these matters without incurring liability under a negligence theory. Snyder v. Med. Serv.
Corp. of E. Wash., 145 Wn.2d 233, 243-45 (2001) (citing with approval Bishop v. State, 77 Wn.
App. 228, 234 (1995)). There is no absolute ban on claims for emotional distress that occur in
the workplace, however. If an employer acts unreasonably in non-disciplinary matters, a
workplace claim may survive a motion to dismiss. See Kumar v. Gate Gourmet Inc., 180 Wn.2d
481, 505-06 (2014) (employer’s meal policy was arguably unreasonable when it posed a known
risk to the employees’ religious practices and emotional well-being that far outweighed the
policy’s utility to the company); Strong v. Terrell, 147 Wn. App. 376, 388-90 (2008)
(supervisor’s threatening actions and demeaning comments regarding employee’s personal life
were not in furtherance of legitimate, work-related issues); Chea v. Men’s Wearhouse, Inc., 85
Wn. App. 405, (1997) (manager expressed frustration at a lost sale opportunity by grabbing
employee by the lapels and cursing at him). In addition, defendant Wiley is not the employer and
has not cited any case in which a person who failed to use reasonable care to avoid the
inadvertent infliction of emotional distress was immune from suit simply because she worked
with the plaintiff.
With regards to damages, a claim for negligent infliction of emotional distress will not
succeed if it is based on unverified assertions of subjective pain or uncorroborated allegations of
physical manifestations of stress/anxiety. Washington requires evidence of “objective
symptomology” as a means of fending off fraudulent claims of distress. Hegel v. McMahon, 136
Wn.2d 122, 133 (1998). The symptoms alleged need not be physical in nature but, whether

26
ORDER GRANTING IN PART DEFENDANT
WILEY’S MOTION TO DISMISS - 6

1

physical or mental, “plaintiff’s emotional distress must be susceptible to medical diagnosis and

2

proved through medical evidence.” Id. at 135. Plaintiff alleges that Wiley’s negligence has

3

caused him “emotional distress, psychological anxiety, depression, and physical illness.” Dkt.

4

# 1 at ¶ 3.49. At least some, if not all, of these alleged injuries are susceptible to medical

5

diagnosis, which is all that is required at the pleading stage. Defendant’s critique that plaintiff

6

has failed to prove the alleged injuries is premature. See Kumar, 180 Wn.2d at 506 (reversing

7

Rule 12(b)(6) dismissal to allow plaintiffs to develop objective evidence of their emotional

8

harms); Corrigal v. Ball & Dodd Funeral Home, Inc., 89 Wn.2d 959, 962 (1978) (reversing Rule

9

12(b)(6) dismissal on ground that plaintiff may be able to prove that she suffered objective

10

physical manifestations of her mental suffering such as weight loss, sleeplessness, and general

11

deterioration of her physical well-being) .

12
13

For all of the foregoing reasons, defendant Wiley’s motion to dismiss (Dkt. # 22) is

14

GRANTED in part and DENIED in part. The defamation and intentional infliction of emotional

15

distress claims against defendant Wiley are hereby DISMISSED. Plaintiff may proceed with his

16

negligent infliction of emotional distress claim.

17
18

Dated this 7th day of November, 2017.

19

A

20

Robert S. Lasnik
United States District Judge

21
22
23
24
25
26
ORDER GRANTING IN PART DEFENDANT
WILEY’S MOTION TO DISMISS - 7