Appeal from Superior Court of King County. Docket No: 93-2-23831-2. Date filed: 05/30/95. Judge signing: Hon. Michael C. Hayden.
Order Changing Opinion July 28, 1997, Appellant's Motion for Reconsideration Denied July 28, 1997.
Authored by William W. Baker. Concurring: Faye C. Kennedy, Susan R. Agid.
The opinion of the court was delivered by: Baker
BAKER, C.J. - The Men's Wearhouse, Inc. (MWI) asks this court to determine whether negligent infliction of emotional distress is a cognizable claim in a workplace dispute or whether such a claim is barred by the exclusive remedy provisions of RCW Title 51, the Industrial Insurance Act (IIA). We hold that negligent infliction of emotional distress is a cognizable claim in the workplace when it does not arise solely from racial remarks and does not result from an employer's disciplinary acts or its response to a personality dispute. Because no determination was made in this case whether the incident supporting Eakkhoun Chea's claim was a disciplinary incident and because the evidence was sufficient for the jury to find the claim was not based solely upon racial remarks or employer discipline, we affirm the jury verdict. Moreover, because MWI did not appeal the administrative determination that Chea experienced no injury compensable under the IIA, MWI cannot now assert that the IIA bars Chea's recovery. *fn1
Chea is a Cambodian of Chinese descent, who fled the Khmer Rouge camps and emigrated to the United States. MWI hired Chea as a clothing consultant. Chea discussed his experiences in the Khmer Rouge camps during his interviews with MWI's district and regional managers.
Members of MWI's management and other employees frequently made negative comments both about Chea's short stature and about Asians. *fn2 Chea's manager admitted that racial remarks were common in MWI stores and that he made racial remarks and comments about Chea's height. Chea complained to this manager about the remarks. MWI's district manager also heard comments about "your people" and Chea's height while she was in the store.
The pivotal event for Chea occurred on September 18, 1992, when regional manager Marty Morris reprimanded him. After some customers left the store without making a purchase, Morris approached Chea and asked what happened. When Chea said he did not know it was his "up" (turn to sell), Morris grabbed him by the lapels and said "I don't give a fuck whose fucking up it is, I want a customer taken care of." *fn3 Morris admitted angrily approaching Chea, flipping up his lapels, and probably using foul language. Morris told the district manager that he grabbed Chea. The store's head tailor saw Morris' hands on Chea's lapel. Chea admitted that Morris did not make any racial remarks on this occasion.
Chea filed a worker's compensation claim with the Department of Labor and Industries, claiming mental and emotional injury from the Morris incident; however, the Department denied the claim, finding that Chea had no specific injury or occupational disease. Neither MWI nor Chea appealed this determination.
Chea also filed a complaint with the Equal Employment Opportunity Commission, alleging racial harassment and wrongful denial of promotion. *fn4 MWI conducted an investigation. It determined that the kidding and jokes were in bad taste and should stop. It also determined that Morris' reprimand was proper, but that he should not have touched Chea. The comments about Chea's height and race continued. In December 1992 Chea transferred to another MWI store.
After the Morris incident, Chea began to have episodes where his heart would race, he felt dizzy, weak, and nauseous, and he had trouble sleeping. Chea sought medical and psychological treatment. Chea told his doctors about the Morris incident. The doctors determined that Chea suffered from tachycardia, hyperventilation syndrome, panic attacks, depression, and adjustment disorder with anxiety.
Chea then filed suit against MWI alleging (1) harassment, retaliation, and denial of a promotion based on his race or national origin, and (2) negligent infliction of emotional distress. *fn5 The latter claim incorporated all of the allegations supporting the first claim and added an allegation regarding the Morris incident.
Before trial MWI argued that negligent infliction of emotional distress cannot exist in an employment context and that the IIA provided Chea's exclusive remedy. The trial court denied the motion as untimely. MWI renewed the motion at the close of Chea's case, arguing that an employee cannot bring an emotional distress claim against an employer for what essentially was a workplace personality dispute. *fn6 Chea responded that his claim was based on both the Morris incident and all of the previous non- racial statements. The trial court reserved its ruling.
MWI renewed the motion at the end of the evidence. The trial court denied the motion, noting that it found a conflict in the case law regarding whether such a claim can be brought in an employment context. The court reasoned that, under case law from this division, *fn7 the claim was cognizable in the workplace when "the dominant feature of the tort was not personal injury[,] but intangible emotional damage." *fn8 Before the trial court instructed the jury, MWI objected generally to the giving of an instruction on the emotional distress claim, but not to its content. MWI did not, however, propose an instruction that evidence of employer disciplinary decisions could not be considered in an ...