LOPEZ v. CITY OF SEATTLE, 49913-1-I (Wash.App. 9-23-2002)

MARLIN J. APPELWICK, J.

Two City of Seattle employees appeal the summary judgment dismissal of libel, slander, negligent infliction of emotional distress, and invasion of privacy claims they brought against the City. No genuine issue of material fact exists on any of their claims. They fail to establish any of their claims, and the City is entitled to judgment as a matter of law. We therefore affirm the trial court's dismissal of their complaint.

FACTS

In 1997, Lisa A. Lopez and Laura C. Munoz worked for the City of Seattle in the Parks and Recreation Department. The two also lived together and carpooled to work. Munoz claims that she and Lopez are relatives. Munoz referred to Lopez as her aunt, but explained that technically she and Lopez are distant cousins. Lopez has, however, claimed that Munoz was Lopez's domestic partner's daughter.

In August 1997, Munoz was unexpectedly absent from work for several days. During the same time, Lopez scheduled some time off work for personal family issues. While Munoz was absent from work, she mailed a letter to Joyce Ervin, a City employee, in care of Kathleen Kutz. Although Kutz also worked for the City, the letter was mailed to her at an address in Kingston, Washington. That letter revealed that Munoz was upset with an unnamed woman. Munoz opined that the unnamed woman would never let Munoz be free. After Munoz wrote the letter, she called Ervin. Munoz said to Ervin, "I took a bunch of pills, and I wrote a really stupid letter to you." Munoz made this telephone call from the hospital.

Ervin read Munoz's letter and believed the unnamed woman was Lopez. Ervin told Dorothy Guernsey, a City supervisor, that Munoz had been absent from work. Ervin also indicated to Guernsey that Lopez and Munoz may not actually be related. During a conversation with Guernsey, Ervin expressed concern that there may be physical or sexual abuse occurring between Lopez and Munoz. Kutz also spoke to Guernsey about Munoz's absences. Kutz was worried about Munoz, who was usually punctual and conscientious. Guernsey was also worried about Munoz. Because she knew Munoz lived with Lopez, Guernsey contacted Lopez's supervisor, Sue Denure. During a conversation with Denure, Guernsey mentioned the allegations that there may be physical or sexual abuse occurring between Lopez and Munoz.

The precise sequence of events that occurred during Munoz's absence is unclear from the record Lopez and Munoz have presented here, but does not change our analysis.

More than two-and-a-half years later, on March 30, 2000, Guernsey was verbally reprimanded for violating City policy. That reprimand instructed Guernsey "to discuss personnel issues only with her supervisor, manager, director, or Human Resources representatives."

Guernsey made attempts to discover the reason for Munoz's absences. She called Munoz's home and spoke to Munoz's mother, who also lived there. Munoz's mother said Munoz was there, but did not allow Guernsey to speak with Munoz. Guernsey called the police and requested that they check on Munoz, which they did. A police officer told Guernsey that Munoz was all right. Ervin also reported Munoz's absences to Linda Hein, a City Senior Human Resources Specialist. Ervin also mentioned her concern that there may be physical or sexual abuse occurring between Munoz and another City employee, Lopez.

Hein interviewed a number of employees to determine if Munoz needed a referral to City services or if discipline was needed. According to Lopez and Munoz, their co-workers became aware that that there was an investigation into allegations of physical or sexual abuse between them. Nancy A. Gabbert, a City employee claimed that Christopher Williams, a manager in the Department, told her that Lopez was under investigation for the abuse of a woman who worked for the Department. According to Gabbert, Williams also suggested that Lopez and Munoz were not related. Lopez and Munoz claimed that rumors spread throughout the Department that Munoz was being physically and sexually abused by Lopez.

In September 1997, Munoz returned to work. Hein met with Munoz to ascertain the reason for her unexplained absences. Under City policy, three unexcused absences warrant dismissal. Even though Munoz was absent for more than three days, no disciplinary action was taken against her. Hein concluded that no further investigation or other action was necessary. Lopez and Munoz claim that the rumors about physical or sexual abuse allegations caused them damages. On August 4, 1999, they sued the City for libel, slander, negligent infliction of emotional distress, and invasion of privacy. Lopez and Munoz denied that any abuse had occurred between them.

In their original complaint, they also alleged breach of contract, outrage, and negligence. They abandoned the breach of contract claim in their amended complaint and abandoned their outrage claim by failing to brief it on appeal. RAP 10.3(a). During oral argument before this court, the attorney representing Lopez and Munoz made clear that they were not claiming the City was liable for conducting a negligent investigation. The issue of whether the City was negligent is addressed with the negligent infliction of emotional distress claim in Part II., B. of this opinion.

The trial court dismissed the case on summary judgment and denied their motion for reconsideration. Lopez and Munoz appeal.

ANALYSIS I. Stricken Evidence

The City moved to strike portions of a declaration submitted by Lopez that contained inadmissible hearsay. The trial court granted that motion. Lopez and Munoz argue that the trial court erred by doing so. The stricken portions of Lopez's declaration read as follows:

Lopez and Munoz failed to designate to this court the trial court's signed order granting the City's motion to strike and/or the trial court's oral ruling. See Nelson v. Schubert, 98 Wn. App. 754, 764, 994 P.2d 225 (2000) (explaining that the appellant has the burden of perfecting the record on appeal). Although it is unclear from the record, we presume for the purposes of this analysis that the trial court granted the relief requested by the City.

On or about August 13, 1997 I was told by Suzanne Denure, my supervisor, that she had been contacted by Dorothy Guernsey, Laura Munoz's supervisor, and that Guernsey had told her that she was concerned that I was sexually and physically abusing Laura Munoz and that I was keeping her from coming to work. I first learned that these allegations were being investigated from Christopher Williams, a district manager. Later, Nancy Gabbert, a co-worker told me that she had been contacted by Christopher Williams, the Parks Department Division Manager and that he had told her that I was being investigated by Human Resources for abuse of a woman in the West Central District. He also said that the Department said that I had claimed I was related to Laura but that I was not. Later that month I was questioned by two co-workers, Vera McDaniels and Brenda Brown as to what my relationship with Laura Munoz was and they both told me that they had heard that I was physically and sexually abusing her.

"A trial court has broad discretion in ruling on evidentiary matters and will not be overturned absent manifest abuse of discretion." Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 662-63, 935 P.2d 555 (1997), review denied, 140 Wn.2d 1021 (2000). "`Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." ER 801(c). Hearsay is generally inadmissible. ER 802. "Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence." ER 403. Most of the stricken evidence was submitted to the trial court without objection through statements from other people. Thus, the trial court had the discretion to exclude Lopez's duplicative testimony for reasons including undue delay, waste of time, or needless presentation of cumulative evidence. See ER 403.

The only remaining challenged evidence is Lopez's account of her conversations with co-workers McDaniels and Brown. Lopez and Munoz argue that this evidence is admissible because it is not hearsay. Specifically, they maintain that it was not offered for the truth of the matter asserted.

We disagree. The matter asserted in the statement is that McDaniels and Brown heard the rumor. The only purpose for which the statement was offered was to prove that McDaniels and Brown heard the rumor. Thus, Lopez and Munoz offered the statement to prove the truth of the matter asserted. It was therefore hearsay. Because Lopez and Munoz articulated no exception under which this statement may be admitted, we conclude that the trial court did not abuse its discretion by excluding it.

We therefore affirm the trial court's order striking the challenged portions of Lopez's declaration.

II. Causes of Action Alleged by Lopez and Munoz

Lopez and Munoz claim that the trial court erred by granting summary judgment to the City on their libel, slander, negligent infliction of emotional distress, and invasion of privacy claims.

The standard of review of an order of summary judgment is de novo, and the appellate court performs the same inquiry as the trial court. Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000). The court considers the facts and the inferences from the facts in the light most favorable to the nonmoving party. Bremerton Pub. Safety Ass'n v. City of Bremerton, 104 Wn. App. 226, 230, 15 P.3d 688 (2001). The court may grant summary judgment if the pleadings, affidavits, and depositions establish that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Lybbert, 141 Wn.2d at 34. During oral argument before this court, the attorney representing Lopez and Munoz clarified their causes of action. The attorney alleged that the City's liability arose out of communications from supervisors to supervisors (Kutz to Guernsey; Guernsey to Denure) and communications from a supervisor to an employee (Williams to Gabbert). The supervisors' allegedly inappropriate communications were apparently the sources of the rumors about abuse between Lopez and Munoz.

A. Libel and Slander

Defamation includes both libel and slander. Black's Law Dictionary, at 288 (6th ed. 1991). "`A communication is defamatory if it tends so to harm the reputation of another as to lower him [or her] in the estimation of the community or to deter third persons from associating or dealing with him [or her].'" Right-Price Recreation, LLC v. Connells Prairie Cmty. Council, 146 Wn.2d 370, 382, 46 P.3d 789 (2002) (quoting Restatement (Second) of Torts § 559 (1977)). The elements of a defamation claim are falsity, an unprivileged communication, fault, and damages. LaMon v. Butler, 112 Wn.2d 193, 197, 770 P.2d 1027 (1989). In this case, Lopez and Munoz must establish that the City was negligent in communicating the matter. Moe v. Wise, 97 Wn. App. 950, 957, 989 P.2d 1148 (1999) (explaining standard applicable to private plaintiffs), review denied, 140 Wn.2d 1025 (2000).

At issue in this case are statements allegedly made by Kutz, Guernsey, and Williams indicating that there was an investigation taking place. These statements were true. Regarding the speculation that Lopez and Munoz are not relatives, Lopez and Munoz have made conflicting statements on the issue. Resulting questions and speculation from City supervisors cannot be deemed false statements. Lopez and Munoz argue that the falsity element of their defamation claim is satisfied by their denial that any physical or sexual abuse was occurring between them. This confuses the issue. Regardless of whether the matter being investigated proved to be true or false, it is undisputed that such an investigation was occurring. Lopez and Munoz presented no evidence to indicate that false statements were made by City supervisors. The City is therefore entitled to judgment as a matter of law on Lopez and Munoz's libel and slander claims.

B. Negligent Infliction of Emotional Distress

An act is negligent if there is a duty owed, a breach of that duty, and an injury proximately caused by that breach. Ruff v. King County, 125 Wn.2d 697, 704, 887 P.2d 886 (1995). To show negligent infliction of emotional distress in the workplace, the plaintiff must show "(1) that [his or] her employer's negligent acts injured [him or] her, (2) the acts were not a workplace dispute or employee discipline, (3) the injury is not covered by the Industrial Insurance Act, and (4) the dominant feature of the negligence claim was the emotional injury." Snyder v. Medical Serv. Corp., 98 Wn. App. 315, 323, 988 P.2d 1023 (1999), aff'd, 145 Wn.2d 233 (2001).

In this case, Munoz was absent from work for several days without notifying her supervisor. In addition, a City supervisor received information indicating that Munoz, a City employee, may have been abused by Lopez, another City employee. Under these circumstances, the City reasonably began an investigation. Moreover, the City did not owe Lopez and Munoz a duty to use reasonable care to avoid the inadvertent infliction of emotional distress during that investigation. See Francom v. Costco Wholesale Corp., 98 Wn. App. 845, 863-64, 991 P.2d 1182, review denied, 141 Wn.2d 1017 (2000). Lopez and Munoz allege that rumors, which spread about their relationship, inflicted emotional distress. Whether fellow employees may be liable for infliction of emotional distress is not before us. Whether the City is liable vicariously for infliction of emotional distress due to gossip among its employees turns on the existence of a duty to prevent this gossip. The City does not owe its employees a duty to prevent fellow employees from gossiping. Consequently, the City is not liable for any emotional distress that may have resulted from its actions. The City is therefore entitled to judgment as a matter of law on the negligent infliction of emotional distress claim.

During oral argument before this court, the attorney representing Lopez and Munoz conceded that the City's investigation was not negligent.

C. Invasion of Privacy

"[T]he common law right of privacy exists in this state and . . . individuals may bring a cause of action for invasion of that right." Reid v. Pierce County, 136 Wn.2d 195, 206, 961 P.2d 333 (1998). The right to privacy is violated only if disclosure of private information about the person: (1) would be highly offensive to a reasonable person, and (2) is not of legitimate concern to the public. Progressive Animal Welfare Society v. Univ. of Wash., 125 Wn.2d 243, 254, 884 P.2d 592 (1994).

To determine whether information is private for the purposes of this cause of action, Washington courts look to the Restatement (Second) of Torts § 652B (1977). Peters v. Vinatieri, 102 Wn. App. 641, 657, 9 P.3d 909 (2000), review denied, 143 Wn.2d 1022 (2001); Restatement (Second) of Torts § 652B, at 378 (1977) ("Intrusion upon Seclusion"). That section states:

One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.

Restatement (Second) of Torts § 652B, at 378 (1977). The comment following that section makes clear that a defendant is subject to liability "only when he [or she] has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his [or her] person or affairs." Restatement (Second) of Torts § 652B cmt. c, at 379 (1977).

In this case, Munoz revealed in writing her involvement in a troubled relationship with an unnamed woman. That letter was addressed to Ervin and mailed to Kutz. Thus, Munoz revealed the contents of that letter to two City employees. Ervin and Kutz did not intrude into or invade Munoz's privacy in receiving the information. At that point, any private information contained within that letter, and in the call about that letter, was no longer private for the purposes of an invasion of privacy cause of action.

After receiving Munoz's call from the hospital and reading that letter, Ervin developed impressions about Lopez and Munoz's relationship. Based on those impressions, Ervin expressed concern that there may be physical or sexual abuse occurring between Lopez and Munoz. Her concerns for Munoz's safety were legitimate public interest concerns to voice and to have investigated. Guernsey, Hein, and Williams were told about Ervin's concerns and the facts that gave rise to those concerns. An investigation resulted. Moreover, when considered in context, statements allegedly made by Kutz, Williams, and Guernsey were part of the City's investigation. While Munoz was unexpectedly absent from work, Guernsey and Hein learned there were allegations of abuse between Munoz and another City employee. It was reasonable for Guernsey to contact the supervisor of Munoz's roommate, Lopez, to obtain information about Munoz's absence and the danger she may have been in. Under these facts, there was no disclosure of Lopez and Munoz's private information to support an invasion of privacy cause of action.

The resulting reprimand Guernsey ultimately received from the City does not alter the conclusion that the City owed no duty and breached no duty to the plaintiffs.

Because the City disclosed no private information about Lopez and Munoz, the City is entitled to judgment as a matter of law on the invasion of privacy claim.

CONCLUSION

Lopez and Munoz demonstrated no genuine issue of material fact to support their libel, slander, negligent infliction of emotional distress, or invasion of privacy claims. The trial court therefore properly dismissed their complaint on summary judgment.

Accordingly, we affirm.

WE CONCUR: COLEMAN, J., GROSSE, J.