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Leishman v. Ogden Murphy Wallace PLLC

Court of Appeals of Washington, Division 1

October 21, 2019



         The court has determined that the opinion in the above-entitled case filed on September 3, 2019 shall be withdrawn and a substitute published opinion be filed. Now, therefore, it is hereby

         ORDERED that the opinion filed on September 3, 2019 is withdrawn and a substitute published opinion shall be filed.

          MANN, A.C.J.

         Washington's anti-SLAPP statute, RCW4.24.510, [1] provides immunity from civil liability for a "person" that communicates a complaint or information to a federal, state, or local agency, regarding a matter of reasonable concern to the agency. In Segaline v. Dep't of Labor & Indus., 169 Wn.2d 467, 470, 238 P.3d 1107 (2010), a plurality of our Supreme Court held that a government agency communicating information to another government agency is not a "person" and therefore not afforded immunity under RCW 4.24.510. We are asked here to determine whether a government contractor working within the scope of its contract is a "person" under RCW 4.24.510.

         Roger Leishman sued Ogden Murphy Wallace, PLLC and Patrick Pearce (collectively "OMW") for negligence, violation of the Washington Consumer Protection Act (CPA), ch. 19.86 RCW, negligent misrepresentation, fraud, and discrimination, in connection to services rendered by OMW to the Washington Attorney General's Office (AGO) for an internal investigation of a workplace dispute involving Leishman. OMW moved for dismissal on the pleadings, arguing that OMW was immune from civil liability under RCW 4.24.510 for communicating the findings of its investigation to the AGO. The trial court agreed.

         On appeal, Leishman contends that RCW 4.24.510 does not support the trial court's decision and that OMW, a government contractor, is not a "person" under the statute. We agree, and consistent with the plurality in Segaline, hold that government contractors, when communicating to a government agency under the scope of their contract, are not "persons" entitled to protection under RCW 4.24.510.

         We reverse.


         Leishman began employment in July 2015 with the AGO as Chief Legal Advisor for Western Washington University. Shortly after beginning work at the AGO, Leishman began exhibiting serious trichotillomania, anxiety, and other symptoms. Leishman disclosed his symptoms to the AGO as well as his prior history of managing mild anxiety. In November 2015, Leishman's physician diagnosed him with post-traumatic stress disorder (PTSD) and serious codependency. Leishman informed the AGO of his new diagnosis and ultimately submitted a formal request for reasonable accommodation of his disability in February 2016. In March 2016, Leishman, an openly gay man, also filed a complaint with the AGO, alleging that his supervisor, Kerena Higgins, made homophobic comments towards him. Leishman felt that his PTSD was triggered by Higgins's comments and her micromanagement of his work. During a meeting with Higgins to discuss Leishman's disability accommodation and Higgins's comments, Leishman became aggressive, raised his voice, and pounded his fists.[2]

         Higgins complained to the AGO about Leishman's inappropriate conduct and the AGO placed Leishman on home assignment. The AGO retained OMW to conduct an independent investigation into Leishman's sexual orientation discrimination claim against Higgins, and Higgins's allegation that Leishman was inappropriate during their meeting.

         OMW drafted a report (OMW Report) concluding that "Leishman has not established support for his complaint of discrimination against him based on sexual orientation as prohibited by AGO polices." The OMW Report also concluded that "Mr. Leishman's conduct during the March 1 meeting [with Higgins] violated expected standards of conduct for his position as reflected in his job description." The AGO terminated Leishman on May 7, 2016.

         After his termination, Leishman submitted a tort claim against the State for employment-related claims, and the parties reached a settlement. In the settlement agreement, Leishman "released his claims against the State, including the AGO, and any officers, agents, employees, agencies, or departments of the State of Washington."

         Subsequently, Leishman sued OMW for negligence, violation of the CPA, negligent misrepresentation, fraud, and discrimination. In Leishman's complaint, he alleged that OMW was not acting as the AGO's agent and therefore his claims against OMW were not barred by his settlement agreement with the AGO.

         OMW filed a motion for judgment on the pleadings, under CR 12(c), on the basis that RCW 4.24.510 granted it immunity for its communication of the OMW Report to the AGO. Leishman responded that "no Washington decision discusses the potential applicability of RCW 4.24.510 to ordinary ...

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