[No. 35201-0-II. Division Two. April 15, 2008.]
[1] Appeal — Conclusions of Law — Review — Standard of Review. Conclusions of law in a civil action are reviewed de novo. [2] Employment — Termination — Violation of Public Policy — Elements — In General. The elements of a common law action for wrongful discharge in violation of public policy are (1) the existence of a clear public policy (the clarity element), (2) that discouraging the plaintiff's conduct would jeopardize the public policy (the jeopardy element), (3) the plaintiff's public-policy-linked conduct was the cause of the termination (the causation element), and (4) the employer is unable to establish an overriding justification for the termination (the absence of justification element). [3] Employment — Termination — Violation of Public Policy — Source of Public Policy — In General. A claim of wrongful discharge in violation of public policy is cognizable if the employer's conduct contravenes the letter or purpose of a constitutional, statutory, a regulatory provision or scheme. A prior judicial decision may also established the relevant public policy (clarity element). [4] Employment — Termination — Violation of Public Policy — Clear Public Policy — Gender Discrimination. There is a clear mandate in Washington of public policy against wrongful discharge based on gender discrimination. This policy is at the core of the Law Against Discrimination (chapter 49.60 RCW). [5] Employment — Termination — Violation of Public Policy — Right of Action — Gender Discrimination — Exemptions — Small Employer. An employee may bring a common law gender discrimination claim against an employer who employs fewer than eight employees. An action for wrongful discharge in violation of the public policy against gender discrimination is not precluded by former RCW 49.60.040(3) (1997), which limits claims to employers with more than eight employees. [6] Employment — Termination — Violation of Public Policy — Elements — Jeopardy — Proof. The jeopardy element of an action for wrongful discharge in violation of public policy is established when the plaintiff shows that the plaintiff engaged in particular conduct directly relating to or necessary for the effective enforcement of the public policy. The plaintiff also is required to show how the threat of termination will discourage others from engaging in the desirable conduct. [7] Civil Rights — Sex Discrimination — Sexual Harassment — Hostile Work Environment — Constructive Discharge — In General. A hostile work environment leading to a constructive discharge is a subset of gender discrimination. [8] Employment — Termination — Violation of Public Policy — Elements — Jeopardy — Gender Discrimination — Rebuffing Sexual Advances. The public policy of eliminating and preventing gender discrimination in the workplace is jeopardized if an employee fears that rebuffing unwanted sexual advances or sexual activity in the workplace would cause the employee to lose his or her job. Public policy favors rebuffing unwanted sexual advances in the workplace and supports an employee's desire to conduct work duties without engaging in unwanted sexual activity. [9] Employment — Termination — Violation of Public Policy — Right of Action — Express or Constructive Discharge. A cause of action for wrongful discharge in violation of public policy may be predicated on a discharge that is either express or constructive. [10] Employment — Termination — Constructive Discharge — Deliberate Act — Nature. An employee is constructively discharged if the employer engages in a deliberate act that makes the employee's working conditions so intolerable that a reasonable person in the employee's position would feel compelled to resign. It is the employer's act, not the result, which must be deliberate. [11] Employment — Termination — Constructive Discharge — Intolerable Working Conditions — Question of Law or Fact. For purposes of an employee's claim of constructive discharge from employment, whether the employer deliberately made the claimant's working conditions intolerable is a question of fact. [12] Employment — Termination — Constructive Discharge — Intolerable Working Conditions — Proof. The intolerable working condition element of an employee's claim of constructive discharge from employment may be shown by aggravated circumstances or a pattern of conduct. [13] Employment — Termination — Constructive Discharge — Involuntary or Coerced Resignation — Necessity. An employee claiming constructive discharge from employment must show that he or she resigned because of intolerable working conditions and not for some other reason, such as finding a better job. [14] Witnesses — Credibility — Review — Deference by Reviewing Court. An appellate court defers to the trier of fact on issues of witness credibility and conflicting testimony. [15] Employment — Termination — Constructive Discharge — Escalating Sexually Explicit Comments — Masturbation in Employee's Presence. Evidence that an employer engaged in an ongoing pattern of making sexually graphic comments to an employee, which escalated over time and culminated in the employer's masturbating in the employee's presence in a confined space over the employee's objection, and that the employee resigned within days of the masturbation incident is sufficient to support the employee's claim of constructive discharge from employment. [16] Employment — Termination — Violation of Public Policy — Elements — Overriding Justification — Substandard Work Performance — Falsification of Employee's File. In an action for wrongful discharge in violation of public policy, the employer's assertion that the employee's substandard work performance provided sufficient justification for the termination to override the clear mandate of public policy may be defeated by evidence that the employer falsified the employee's file with letters of reprimand after the employee filed a claim for unemployment compensation. [17] Appeal — Findings of Fact — Failure To Assign Error — Effect. Unchallenged findings of fact are verities before a reviewing court. [18] Appeal — Findings of Fact — Review — Harmless Error — Other Sufficient Findings. An erroneous finding of fact is not prejudicial if separate unchallenged findings are sufficient to support the trial court's conclusions of law. [19] Torts — Damages — Emotional Distress — Intentional Tort. Damages for emotional distress are recoverable as an element of damages merely upon proof of an intentional tort. [20] Employment — Termination — Violation of Public Policy — Emotional Distress — Standard of Proof. Damages for emotional distress are recoverable by an employee wrongfully discharged in violation of public policy upon mere proof of the intentional tort of emotional distress. [21] Employment — Termination — Violation of Public Policy — Emotional Distress — Gender Discrimination — Hostile Work Environment — Resulting Physical and Emotional Problems. An employee wrongfully discharged in violation of the public policy against gender discrimination as the result of a hostile work environment who testifies to feeling disgusted, used, and violated by the employer's discriminatory behavior and suffering from both physical and emotional symptoms as a result of the discrimination may recover damages for emotional distress. Nature of Action: A dental clinic employee who resigned from her employment sought damages from the dental clinic and from the dentist who co-owned the clinic for wrongful discharge in violation of the public policy against gender discrimination. The employee claimed that the dentist engaged in an ongoing pattern of making sexually graphic comments, which escalated over time and culminated in the dentist's masturbating in the employee's presence in a confined space over the employee's objection, and that the employee resigned within days of the masturbation incident because of the hostile work environment. Superior Court: The Superior Court for Pierce County, No. 04-2-12097-2, Beverly G. Grant, J., on July 14, 2006, entered a judgment in favor of the plaintiff, awarding her $20,000 in damages. Court of Appeals: Holding that the plaintiff proved a valid common law claim for wrongful discharge in violation of the public policy against gender discrimination and that the trial court properly awarded damages to the plaintiff for emotional distress, the court affirms the judgment. Peter T. Petrich- and Carol J. Cooper- (of Davies Pearson, PC), for appellants. Pierre E. Acebedo- (of Acebedo & Johnson, LLC) and John W. Ladenburg, Jr.- and Erik F. Ladenburg- (of Ladenburg Law, PLLC), for respondent. ¶1 QUINN-BRINTNALL, J. — Dr. Don S. Moore, co-owner of Dash Point Family Dental Clinic, Inc., appeals the trial court's finding that he violated Washington's public policy against gender discrimination and wrongfully discharged Candace Wahl. Because Wahl proved a valid common law claim for discrimination based on gender, which includes creating the hostile work environment established here, we affirm. FACTS ¶2 In August 2003, Wahl was nearing the completion of Bryman College's dental assistant program. To obtain the program's certificate, the college required Wahl to complete an unpaid externship at a dental clinic. The school placed Wahl with the Dash Point Family Dental Clinic located in Federal Way, Washington, to perform her externship. Dr. Moore, a Pierce County resident, co-owned and operated the clinic. ¶3 During her externship, Wahl received two written evaluations, both favorable. In addition, the clinic's office manager, Janice Pernell, complemented Wahl's work and told Wahl that Dr. Moore liked having her as his assistant. Following her externship, the clinic hired Wahl as a full-time, paid dental assistant. ¶4 A few months after Wahl began working as a paid employee, Dr. Moore started making inappropriate and sexually explicit comments to her. The comments included Dr. Moore's wife's preferences during sex, references to oral sex, graphic details about Dr. Moore's sex life, the size of his penis, and comments about the bodies of female patients and employees. Some of these comments were about Wahl's breasts and about Dr. Moore's physical attraction to Wahl's mother, who was a patient at the clinic. ¶5 During the last three months of Wahl's employment, Dr. Moore's comments became increasingly graphic and more frequent. Pernell testified that she heard Dr. Moore make sexually explicit comments at the clinic. Pernell also testified that Dr. Moore demanded that she have oral sex with him and that he asked her to buy condoms so they could have sexual intercourse in the clinic's conference room. Pernell further testified that she tried to warn all the new externs about Dr. Moore and told them that he was a "pervert." 2 Report of Proceedings (RP) at 187. ¶6 At first, Wahl ignored Dr. Moore's comments and continued working. But on Monday, February 23, 2004, when Dr. Moore told Wahl that he wanted her to watch him masturbate, she could no longer ignore him. Later that day, Dr. Moore asked Wahl to go to the darkroom with him so he could teach her how to duplicate a patient's film. The clinic's darkroom was the size of a small walk-in closet. As Wahl was preparing the film, Dr. Moore told her to quit what she was doing and turn around so he could "finish faster." 1 RP at 59. Wahl refused to turn around, but she testified that she could smell lotion and could hear Dr. Moore masturbating behind her. Wahl told Dr. Moore that what he was doing was wrong and the incident ended abruptly when Dr. Moore's wife, a hygienist at the clinic, knocked on the darkroom's door. ¶7 Wahl testified that she did not know what to do; she felt violated, uncomfortable, and disgusted, but continued to work for the rest of the week. During that week, Wahl noticed that Dr. Moore became more critical of her work. Four days later, Wahl told her mother about the darkroom incident. The following Monday, Wahl left her job at the clinic. Dr. Moore then directed Pernell to write a letter denying that any sexual misconduct had occurred between Pernell and Dr. Moore. ¶8 Wahl and her mother reported the darkroom incident to the police. Wahl's mother testified that the police officer told them that there was nothing he could do because Wahl did not actually see Dr. Moore masturbating. Wahl also reported the incident to Bryman College. The college investigated and found that no misconduct had occurred, but the trial court found that the college's investigation of the incident was not credible. When Wahl applied for unemployment compensation, the clinic reported that, because Wahl had quit her job, it owed no unemployment compensation. Ultimately, Wahl found another job and did not collect unemployment. ¶9 After Wahl quit, Dr. Moore also directed Pernell to write several letters of reprimand, back-date them, and place them in Wahl's personnel file. Wahl testified that she had never received any written evaluations or written reprimands during her time as a paid employee. Dr. Moore admitted back-dating the letters, but he claimed that the dates accurately reflected the dates of Wahl's violations of clinic rules and policies. The trial court found that Dr. Moore's testimony explaining why he directed Pernell to back-date the reprimands was not credible and that the majority of the letters were fabricated. ¶10 Following a bench trial, the trial court found that Wahl had been wrongfully discharged in violation of Washington's public policy against gender discrimination and awarded her $20,000 in damages. Dr. Moore appeals. ANALYSIS CONCLUSIONS OF LAW 5. It is a violation of the common law of the State of Washington to sexually harass an employee. There was sufficient evidence to prove a common law claim of sexual harassment against Dr. Moore. 6. Furthermore, there was a hostile working environment created by Dr. Moore. When the person you are to report a sexual harassment claim to is the harasser and there is no higher person, there is no requirement to complain. Were Candace Wahl to have complained to either Dr. Moore or Mrs. Moore, it would not have any benefit and thus would have been an exercise in futility. . . . . 8. Candace Wahl was constructively discharged as the working conditions and environment were so intolerable that a reasonable person would have quit. Further Candace Wahl quit in response to Dr. Moore's sexually harassing conduct. . . . . 13. There was sufficient evidence to prove emotional distress damages. 14. The court concludes that a reasonable award to Plaintiff, Candace Wahl is $20,000. Clerk's Papers at 37. WRONGFUL TERMINATION IN VIOLATION OF PUBLIC POLICY ¶13 The tort of wrongful discharge in violation of public policy required that Wahl prove four elements: (1) the existence of a clear public policy (the clarity element), (2) that discouraging the conduct in which she engaged would jeopardize the public policy (the jeopardy element), A. THE CLARITY ELEMENT ¶14 To determine whether Dr. Moore violated a clear mandate of public policy, we " 'inquire whether the employer's conduct contravenes the letter or purpose of a constitutional, statutory, or regulatory provision or scheme. Prior judicial decisions may also establish the relevant public policy.' " Roberts, 140 Wn.2d at 63 (quoting Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 232, 685 P.2d 1081 (1984)). ¶15 In Roberts, our Supreme Court held that there is a clear mandate in Washington of public policy against sex discrimination. 140 Wn.2d at 77. This policy "is at the core of RCW 49.60. . . . This statute provides an abundantly clear statement of public policy upon which a common law cause of action for wrongful discharge may be predicated." Roberts, 140 Wn.2d at 77. Therefore, while Wahl cannot bring a statutory claim under chapter 49.60 RCW because the clinic has fewer than eight employees, the clear mandate of public policy against sex discrimination set out in that statute remains and supports the policy element of the common law tort of wrongful discharge in violation of public policy. B. THE JEOPARDY ELEMENT ¶17 A hostile work environment leading to a constructive discharge is a subset of gender discrimination. Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998); Roberts, 140 Wn.2d at 76 n.14. Here, the trial court's unchallenged findings establish that Dr. Moore made sexually graphic comments to Wahl for several months; the comments became more graphic, culminating with Dr. Moore masturbating in Wahl's presence, and that Wahl rebuffed Dr. Moore's sexual advances but feared losing her job. Pernell testified that she did not rebuff Dr. Moore's sexual advances for fear of losing her job. Public policy favors rebuffing unwanted sexual advances in the workplace where engaging in sexual activity negatively impacts productivity, employment stability, and client care. Public policy supports Wahl's desire to conduct her work duties without engaging in unwanted sexual activity. C. THE CAUSATION ELEMENT ¶18 We next examine whether gender discrimination in the form of creation of a hostile work environment caused Wahl's wrongful discharge. Gardner, 128 Wn.2d at 941. In this case, Dr. Moore did not terminate Wahl; she quit her job one week after the darkroom masturbation incident. ¶22 The trial court found that Wahl's testimony about the sexual episodes was credible. We defer to the trial court evidence regarding witness credibility and conflicting testimony. Weyerhaeuser v. Tacoma-Pierce County Health Dep't, 123 Wn. App. 59, 65, 96 P.3d 460 (2004). Under the facts presented here, a rational trier of fact could conclude that Dr. Moore's deliberate sexual harassment behavior created working conditions so intolerable that Wahl reasonably felt compelled to resign. Thus, Wahl was constructively discharged. D. THE ABSENCE OF JUSTIFICATION ELEMENT ¶24 Here, Dr. Moore testified that Wahl's performance as an extern was "substandard" and that he had given Wahl several verbal reprimands concerning her poor performance. He also testified that when he discovered that her file was empty, he instructed Pernell to write letters documenting the verbal reprimands and to back-date the letters accordingly. But the trial court found that the letters of reprimand were written after Wahl filed a claim for unemployment compensation with the Employment Security Department, and that the majority of the letters were falsified. Dr. Moore does not challenge these findings and has not offered any other justifications warranting Wahl's dismissal. ¶25 Viewing the evidence in the light most favorable to Wahl, as we must, there was sufficient evidence to support all four elements of the common law tort of wrongful discharge. The unchallenged findings support the trial court's conclusion that Dr. Moore had violated Washington's public policy against gender discrimination when he sexually harassed Wahl, that this behavior led to Wahl's constructive discharge, and, thus, Wahl was wrongfully discharged in violation of public policy. Roberts, 140 Wn.2d at 60; Gardner, 128 Wn.2d at 947. FINDING OF FACT NUMBER 17 ¶27 Dr. Moore insists that this finding prejudiced him because it was necessary to support the trial court's conclusion that "the disputed darkroom incident did occur" and that "Wahl was so upset by the incident that she suffered emotional distress damages." Br. of Appellant at 24-25. We disagree. DAMAGES ¶29 Dr. Moore asserts that the trial court erred when it awarded Wahl emotional distress damages because Wahl failed to prove wrongful termination in violation of public policy. But Dr. Moore acknowledges that if Wahl had established the tort, emotional distress damages may be recoverable. ¶32 Affirmed. ARMSTRONG and HUNT, JJ., concur.