Opinion
No. 60977-7-I.
May 11, 2009.
Appeal from a judgment of the Superior Court for King County, No. 06-2-07014-3, Catherine D. Shaffer, J., entered December 11, 2007.
Affirmed in part and remanded by unpublished opinion per Ellington, J., concurred in by Becker and Cox, JJ.
UNPUBLISHED OPINION
Violinist Peter Kaman brought this action against the Seattle Symphony Orchestra alleging disability discrimination and the tort of outrage. The trial court dismissed his claims on summary judgment. Kaman appeals the dismissal and an order sealing certain documents. The sealing order does not reflect the analysis required by a recent case, and we remand for reconsideration. In all other respects, however, we affirm.
BACKGROUND
Peter Kaman is a member of the Seattle Symphony, which he joined in 1981. He plays in the first violin section. Symphony musicians are represented by the Seattle Symphony and Opera Players' Organization and are subject to a collective bargaining agreement.
Gerard Schwarz became the Symphony's music director in 1984. Schwarz is a demanding director, and some musicians, including Kaman, have found him difficult to work for.
Kaman began to have difficulties in the Symphony beginning in the 1990s. He has been frequently admonished by Schwarz and/or Symphony management for making negative comments, failing to comply with deportment guidelines, and talking too much during rehearsals. He was also admonished for failing to take musical direction. In 1996, he received written notice of musical deficiencies, and Schwarz made inquiries about terminating Kaman's employment. Kaman's next contract was conditioned on continued improvement. Since then, however, the Symphony has made no formal complaint about Kaman's musical performance.
In 2001, Schwarz asked for a meeting with Kaman to improve their personal relationship. Kaman attended with his union representative, who recorded the meeting. Schwarz observed that Kaman seemed unhappy in the Symphony and asked whether there was "anything I can do to make your experience in the orchestra a better one." Kaman told Schwarz, "you can stop threatening my job every year." Schwarz acknowledged that he had been unhappy with Kaman's performance in the past, but assured Kaman that was no longer the case. Kaman acknowledged that for seven or eight years, Symphony management had been less threatening because he had stopped talking in rehearsals and complaining about the music. Schwarz reiterated, "I'm willing to do anything you can think of or try to do anything you can think of to try to make life better for you," and mentioned a variety of professional opportunities. Kaman told Schwarz, "There's nothing you can do. If you can just, you know, give me my space to come in and do the job and leave."
Clerk's Papers (CP) 1687.
CP 1689.
CP 1695.
CP 1695.
On June 2, 2004, Kaman was again admonished by Schwarz during rehearsal for talking. Two days later, the orchestra manager sent him a written admonishment for persistent talking and whispering during rehearsal.
On June 3, 2004, Kaman met with therapist Stephen Crippen. Crippen provided a medical clearance form excusing Kaman from work because of "illness" on June 3 to June 28. Crippen wrote that Kaman had "symptoms that meet medical necessity for individual therapy and possible psychiatric evaluation." The period of Kaman's absence coincided with a time Schwarz was conducting the orchestra.
CP 1747.
Though Crippen offered to respond to questions from the Symphony, Kaman refused to sign a release, and orchestra manager Jennifer Adair was unable to ascertain the nature of Kaman's illness. Kaman performed in paid recording sessions elsewhere during his medical leave.
Kaman again requested sick leave for three periods in fall and winter of 2005-06. In each case, the medical clearance form indicated only that the reason for the leave was "illness," with no explanation or description. Two of the clearance forms predated the absences by several days. All the anticipated periods of illness coincided with times Schwarz was conducting. Kaman's doctor later testified he believed Kaman sought leave on those dates to avoid working with Schwarz.
Orchestra personnel manager Ron Simon was confused about the third of these requests because he had received the medical clearance form, but Kaman had not contacted him directly as required by the collective bargaining agreement. Simon left a message at Kaman's home, asking Kaman to call to "let me know what's going on." Simon called again, upset because the clearance was signed on Friday but not provided until Monday, thereby leaving little time for a replacement to prepare for a Tuesday performance. Simon called a third time and left an angry message that the doctor's note was "not good enough."
CP 382.
CP 383.
During Kaman's January 2006 medical leave, the Symphony again requested information about his December and January absences. The Symphony provided Kaman with a letter for his doctor asking about the nature of the illness, what work-related activities Kaman would be unable to perform during his leave, whether "there will be any limitations on his ability to perform his duties" upon his return, whether "he will need any form of accommodation from the Symphony so that he can perform his duties," and whether future leave should be anticipated. Through his union, Kaman refused to provide the information and protested the request. The Symphony informed Kaman it would advance the sick pay on condition that he provide documentation as required by the collective bargaining agreement.
CP 1849.
CP 1849.
About a week later, on January 19, 2006, Kaman's attorney sent the Symphony a letter threatening to file suit for disability discrimination and hostile work environment. The letter included a November 29, 2005 memo from therapist Crippen indicating a diagnosis of "Adjustment Disorder with Mixed Anxiety and Depressed Mood." The Symphony requested further information. Kaman presented a note from physician David Agler stating that Kaman had been unable to work due to "severe anxiety." The Symphony accepted this as the required documentation for the January leave.
CP 1859.
CP 1866.
In February 2006, Kaman filed this lawsuit alleging various causes of action under state and federal law, including outrage, negligent supervision, hostile work environment based on disability, and failure to accommodate. The Symphony removed the case to federal court and sought dismissal of all claims under the Labor Management Relations Act.
In response, Kaman voluntarily dismissed all federal claims, filed a third amended complaint, and moved for remand. The district judge sought clarification about which causes of action remained, and Kaman represented that all remaining claims sounded under the Washington Law Against Discrimination (WLAD). The court granted remand to state court.
In August 2007, the Symphony moved for summary judgment on the discrimination claims, arguing, inter alia, that Kaman could not establish that the Symphony was aware of any disability. The Symphony pointed out that Kaman "has not consulted a psychiatrist to this very day." Two days before the November 30 summary judgment hearing, Kaman moved to strike the hearing in order to allow time to provide additional evidence, including a report by psychiatrist James Raney dated November 17, and a report by a forensic economist that was not yet finished. The motion to strike was itself stricken for failure to comply with KCLR 7. In a detailed oral ruling, the court dismissed Kaman's discrimination claims, but ruled that the third amended complaint contained an implied outrage claim.
CP 2213.
The Symphony filed a motion for summary judgment on that claim, contending in part that Kaman was estopped from maintaining it because he represented to the federal district judge that only WLAD claims remained. The court dismissed, ruling that judicial estoppel barred the claim and also that the alleged conduct did not constitute outrage as a matter of law.
DISCUSSION
We apply the usual standard of review for summary judgment. Kaman first contends the trial court erred when it failed to strike certain evidence submitted in support of the Symphony's first motion for summary judgment. He asks this court to strike reference to that evidence from the Symphony's response brief. He cites a list of over 200 pages of documents, identified by page number only, which he contends contain inadmissible hearsay.
This court reviews summary judgment de novo.Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d 16, 26, 109 P.3d 805 (2005). Summary judgment is affirmed when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law.Id.; CR 56(c). All facts and reasonable inferences are considered in the light most favorable to the nonmoving party, and summary judgment is appropriate only if, from all the evidence, reasonable persons could reach but one conclusion.Id. The moving party has the burden to show there is no genuine issue as to any material fact. If that burden is satisfied, the nonmoving party must present evidence demonstrating that material facts are in dispute. Id. If they fail to do so, summary judgment is proper. Id.
A party must alert the court to its objections to evidence. In the summary judgment context, this is usually done by a timely motion to strike. Kaman did not object, move to strike, or in any other way raise this issue below. Accordingly, he has waived any objection.
Raymond v. Pacific Chemical, 98 Wn. App. 739, 744, 992 P.2d 517 (1999).
Id. See also RAP 2.5(a) (court of appeals may refuse to consider claims not raised in the trial court). In addition, Kaman refers only to page numbers rather than specific evidence, and provides no argument directed to such evidence, making evaluation of his claim impossible.
Hostile Work Environment
Our Supreme Court recently applied the hostile work environment analysis in a disability discrimination case, Robel v. Roundup Corp., which involved harassment due to a work related injury. The court held a plaintiff must show "(1) that he or she was disabled within the meaning of the antidiscrimination statute, (2) that the harassment was unwelcome, (3) that it was because of the disability, (4) that it affected the terms or conditions of employment, and (5) that it was imputable to the employer." The employee's disability must be a motivating factor for the unwelcome conduct that creates a hostile environment. In other words, there must be a nexus between the disability and the conduct complained of.
148 Wn.2d 35, 44-45, 59 P.3d 611 (2002).
Id. at 45.
Id. at 46.
We need not decide whether Kaman presented evidence of unwelcome treatment sufficient to create a jury question, because Kaman has not shown the required nexus.
The Symphony contends there is no evidence of hostile conduct within the statute of limitations. In view of our disposition, we need not address the issue.
Kaman relies on the testimony of former concert master Ilkka Talvi, who states that Schwarz once asked him to find a way to fire Kaman and "would say, you know, Peter is crazy." But Talvi testified that Schwarz used words like "crazy" and "nuts" to describe many people. Talvi did not know Kaman was seeing a therapist. Nor is there any evidence that Schwarz knew. Schwarz's use of a demeaning colloquialism is not, by itself, evidence that he or Symphony management knew of Kaman's disability or treated him poorly because of it.
CP 330.
Kaman also points to his experts' opinions that he suffers from "Adjustment Disorder with Mixed Anxiety and Depression, Chronic, caused by [his] hostile environment " and "has been paid significantly less than many of his peer musicians." This testimony was not before the trial court on summary judgment, but in any event, neither report suggests the required nexus.
CP 434.
CP 347.
Kaman's own testimony also fails to establish this connection. Kaman testified he reluctantly told management many times over 20 years that various leave requests were for mental rather than physical illness, and complained about anxiety and stress. But Kaman steadfastly refused to provide information about his condition despite numerous requests from Symphony management. Knowledge that a person is stressed and anxious is not, standing alone, knowledge of a mental disability. Nor does Kaman provide evidence that he was treated differently because of a perceived disability.
Rather, the evidence is that Kaman was not alone in having difficulty working with Schwarz.
Kaman himself stated, in responding to the motion to dismiss his outrage claim, that the people in favor with the director received better treatment than those who were not, and he was never in favor. Kaman's actual claim seems to be that the style and personality of Schwarz and the conduct of various individuals in Symphony management have rendered him anxious to a disabling degree — essentially, that his work environment caused his disability. But that is the inverse of a disability discrimination claim. Kaman must demonstrate that his disability was the root of the hostile environment, not the other way around.
As the trial court concluded, the evidence does not support an inference that the Symphony's treatment of Kaman was motivated by a disability. Summary judgment was appropriate.
Failure to Accommodate
Kaman also alleges the Symphony failed to accommodate his disability. Under current case law, a claim based upon the failure to reasonably accommodate a disability requires a showing that "'(1) the employee had a sensory, mental, or physical abnormality that substantially limited his or her ability to perform the job; (2) the employee was qualified to perform the essential functions of the job in question; (3) the employee gave the employer notice of the abnormality and its accompanying substantial limitations; and (4) upon notice, the employer failed to affirmatively adopt measures that were available to the employer and medically necessary to accommodate the abnormality.'"
Davis v. Microsoft Corp., 149 Wn.2d 521, 532, 70 P.3d 126 (2003) (emphasis omitted) (quoting Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 192-93, 23 P.3d 440 (2001)). Since these cases were decided, the definition of disability has been expanded. See RCW 49.60.040(25)(a) (as amended by Laws of 2007, ch. 317). Kaman makes no argument suggesting the new definition affects the analysis here.
Kaman cannot meet the first, third, or fourth requirements. He testified he is not limited in his ability to perform, "absolutely" meets the essential functions of his job requirements, and "can play rehearsals and concerts with my disabilities." He does not suggest he needs any accommodation in order to do this. Rather, he states that his condition does not affect his ability "to contribute to the Seattle Symphony." If he needs no accommodation, he cannot make a claim for the Symphony's failure to accommodate him.
CP 1400, 1398.
CP 1399.
See Davis, 149 Wn.2d at 532.
Further, Kaman did not give the Symphony notice of his disability until shortly before he filed this lawsuit. Although he told Symphony staff that his reason for sick leave was mental, not physical, he insisted the matter was personal and refused to provide any further information. Kaman's therapist once reported on a sick leave form that he might need psychiatric evaluation, but Kaman refused to allow the therapist to respond to the Symphony's questions about his condition. Although Kaman submitted a declaration from a fellow musician who claimed Symphony management was aware that Kaman needed mental health treatment, the declaration fails to indicate the source of the musician's belief, and Kaman supplies none. There is thus no competent evidence that the Symphony had notice of Kaman's condition.
Kaman does not contend his disability is obvious.
Finally, Kaman's only request for accommodation, made either shortly before or after filing the lawsuit, was to be seated in the back of the violin section. His request was granted.
Summary judgment was appropriate on this claim as well.
Outrage
The court properly dismissed this claim as barred. The doctrine of judicial estoppel precludes a party "from asserting one position in a court proceeding and then later seeking an advantage by taking a clearly inconsistent position." Kaman represented to the federal district judge that he had abandoned all claims except those arising under the WLAD. Based upon this representation, the district judge remanded to state court, specifically finding that only WLAD claims remained.
Cunningham v. Reliable Concrete Pumping, Inc., 126 Wn. App. 222, 224-25, 108 P.3d 147 (2005). Kaman fails to address this independent basis for the ruling.
Unaware of this history, the court below sua sponte identified an outrage claim embedded in Kaman's third amended complaint. Kaman took the opportunity to argue he always intended to preserve that claim. His position is clearly inconsistent with his representations in federal court. Kaman's outrage claim was barred by judicial estoppel.
See Hamilton v. State Farm Fire Cas. Co., 270 F.3d 778, 782 (9th Cir. 2001) (judicial estoppel applies when (1) the party's later position is clearly inconsistent with its prior position; (2) the party has "succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled"; and (3) the "party seeking to assert the inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped") (internal quotation omitted).
Further, Kaman does not present evidence raising a question of fact. To prevail on a claim for the tort of outrage, a plaintiff must prove (1) extreme and outrageous conduct; (2) intentional or reckless infliction of emotional distress, and (3) infliction of severe emotional distress. Kaman asserts that he "provid[ed] admissible evidence to prove" these elements. He neglects, however, to cite any evidence at all in his brief, and urges us to "review the totality of the circumstances" and "conclude that [the] abuse that Mr. Kaman endured for more than two decades" supports a claim of outrage. But because the statute of limitations for torts is three years, Kaman must show actionable conduct occurring within that period, not over the course of two decades. Of the incidents he identifies within the statutory period, none is "so outrageous in character, and 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." Kaman may have felt insulted or embarrassed, but "mere insults and indignities, such as causing embarrassment or humiliation, will not support the imposition of liability on a claim of outrage."
Dicomes v. State, 113 Wn.2d 612, 630, 782 P.2d 1002 (1989).
Appellant's Opening Br. at 24.
Id. at 25.
Kaman argues the court erred by ruling that the statute of limitations for outrage is three years, but offers no applicable authority to support his argument. Kaman instead relies on hostile work environment cases, which allow the plaintiff to present evidence of harassment before the statutory period to show the cumulative effect of the acts, so long as some of the objectionable conduct occurred within that period.See Antonius v. King County, 153 Wn.2d 256, 270, 103 P.3d 729 (2004). Kaman provides no authority suggesting this analysis applies to outrage claims. In any case, assuming outrageous conduct occurred more than three years before suit was filed, Kaman fails to show such conduct occurred within the statutory period.
Dicomes, 113 Wn.2d at 630 (emphasis omitted) (quoting Grimsby v. Samson, 85 Wn.2d 52, 59, 530 P.2d 291 (1975)).
Id.
Sealing Order
The trial court granted the Symphony's motions to seal certain documents that were subject to a confidentiality agreement, finding the material "entirely irrelevant to this lawsuit." Kaman appeals the court's order on several grounds, none of which has merit. In our recent decision in State v. Waldon, however, we held that sealing orders relying exclusively on GR 15 do not meet the constitutional benchmark established by Seattle Times v. Ishikawa. Because the court did not explicitly undertake the Ishikawa analysis in its sealing order, we remand for reconsideration in light of Waldon.
CP 4308.
Kaman contends the court sealed materials in an ex parte hearing without affording him an opportunity to object and failed to make written findings under GR 15. The record belies both assertions. The court unsuccessfully attempted to obtain Kaman's response before granting a temporary sealing order pending briefing by the parties. Kaman's counsel failed to provide briefing or to attend the subsequent hearings. Written findings in the record are sufficient to satisfy GR 15.
148 Wn. App. 952, 962, 202 P.3d 325 (2009).
97 Wn.2d 30, 640 P.2d 716 (1982).
In all other respects, we affirm.
COX and BECKERE, JJ., concur.