Date: 10-23-2012

Case Style: Albert Davis v. Fred's Appliance, Inc.

Case Number: 30269-5-III

Judge: Sweeney

Court: Washington Court of Appeals, Division II on appeal from the Superior Court, Spokane County

Plaintiff's Attorney: Gregory George Staeheli

Defendant's Attorney: William M. Symmes

Description: This appeal follows the summary dismissal of a suit for

employment discrimination. The suit is based on claims of retaliatory discharge,

discrimination, and defamation. A co-worker or store manager (the parties dispute his

authority with the defendant employer) referred to a heterosexual employee as "Big Gay

Al." That name apparently comes from a popular television program. The employee

took umbrage at the references. The employer ordered the supervisor to apologize. The

apology did not go well and the employee was ultimately fired after an outburst of anger.

No. 30269-5-III
Davis v. Fred's Appliance

We conclude that the perception of homosexuality is not protected by the law against

discrimination. We conclude that there is no showing of retaliation. And we conclude

that the comments are not defamatory per se and, accordingly, the employee had to show

actual damage and failed to do so. We therefore affirm the summary dismissal of the suit.

FACTS

Albert Davis worked as a delivery driver for Fred's Appliance, Inc., in Spokane,

Washington, between June 2009 and May 25, 2010. His job was to pick up appliances

from a warehouse and deliver them to Fred's Appliance stores and customers. Mr. Davis

is heterosexual and married.

Steve Ellis was the sales manager or store manager at the Monroe Street store. He

supervised other sales people and he was also a salesman. Mr. Ellis could ask delivery

drivers to wrap appliances in plastic and help load appliances into customer cars, but Mr.

Ellis had no authority to punish employees who did not do what he asked. He had no

authority to hire or fire other employees. He did not help create company policies or

business and marketing strategies. He had no authority to execute Fred's Appliance's

contracts.

Mr. Davis delivered some appliances to the Spokane Valley store on May 14,

2010. Mr. Ellis was there. As Mr. Davis came into the room, Mr. Ellis said, "Hey, there

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is Big Gay Al." Clerk's Papers (CP) at 55. Some onlookers laughed. Mr. Davis said,

"Excuse me?" and Mr. Ellis replied, "Hey, Big Gay Al." CP at 55. The store manager,

Rick Hurd, "just stood there and shook his head." CP at 55. Salesman Brent Steinhauer

was present and he was not laughing. Nearby customers looked uncomfortable. Mr.

Davis did not say anything to Mr. Ellis. He made his delivery and left the store. He was

"humiliated and embarrassed." CP at 57. He "just wanted to get out of the situation."

CP at 57.

Mr. Davis saw Mr. Ellis at the Spokane Valley store again on May 15. Mr. Ellis

again called Mr. Davis "Big Gay Al." CP at 58. Mr. Davis told Mr. Ellis to stop. Mr.

Ellis explained, "Well, it's from South Park." CP at 58. Mr. Davis replied, "I don't like

that show. I don't think it's funny," and said "Don't call me Big Gay Al anymore." CP

at 58.

On Friday, May 20, 2010, Mr. Ellis greeted Mr. Davis with, "Hey, Big Gay Al."

CP at 60. Mr. Davis replied, "Hey, I thought I had already asked you to stop?" CP at 60.

According to Dallas Martin, Mr. Davis's delivery partner, Mr. Davis yelled and swore at

Mr. Ellis. Mr. Martin told Mr. Davis to calm down. They left and Mr. Davis remained

upset. Mr. Davis said that Mr. Martin lied about him yelling and swearing.

Mr. Ellis called Michael Fisher after the last incident. Mr. Fisher was the

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operations manager for Fred's Appliance. Mr. Ellis told Mr. Fisher that Mr. Davis loudly

used swear words in front of customers. Mr. Fisher then called Ed Miller. Mr. Miller is

Mr. Davis's direct supervisor. Mr. Fisher told Mr. Miller to suspend Mr. Davis if the

allegations were true. Mr. Miller met with Mr. Davis and Mr. Davis explained the

history of the "Big Gay Al" comments. Mr. Miller called Mr. Fisher and relayed what

Mr. Davis told him. Based on that conversation, Mr. Fisher did not think it was

appropriate to suspend Mr. Davis until more was known. Mr. Miller did not suspend Mr.

Davis. Mr. Davis may have told Mr. Miller at this time that he wanted to write a more

formal complaint about Mr. Ellis.

Mr. Fisher told Troy Varness about the problem on Monday, May 24, 2010. Mr.

Varness is Fred's Appliance's general manager. Mr. Varness spoke to Mr. Davis later

that day. Mr. Davis explained the problem and did not deny that he yelled and swore at

Mr. Ellis on May 20. Mr. Varness told Mr. Davis that Mr. Ellis would apologize to him.

He also told Mr. Davis that he had the right to make a more formal complaint. According

to Mr. Davis, Mr. Varness said, "Al, I would really like to keep you around here. We like

you." CP at 237. Mr. Davis took that as a veiled threat that he should not file a written

complaint. Mr. Davis also recalled that he said that he "would hold off on [a] written

complaint and give [Mr. Ellis] the opportunity to apologize." CP at 155.

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Mr. Varness and Mr. Fisher both met with Mr. Ellis the next day because Mr. Ellis

was not at work on May 24. Mr. Varness told Mr. Ellis that the name calling was

inappropriate and unprofessional. He told Mr. Ellis that he must apologize to Mr. Davis.

When Mr. Davis arrived later in the morning, Mr. Fisher took him and Mr. Ellis outside

for the apology. The facts surrounding the apology are disputed.

According to Mr. Fisher, Mr. Ellis offered an apology and Mr. Davis became

agitated, paced back and forth, and cracked his knuckles. Mr. Fisher said that Mr. Davis

yelled at Mr. Ellis: "you're a f****** punk; you give me no respect." CP at 23. Mr.

Davis began walking to his truck while yelling that he did "not need to put up with this

shit" or "disrespect" and that he called Mr. Fisher a "f****** pr***." CP at 24.

Dan Atkinson, a salesman for another company, saw the exchange. He was sitting

in his car with the window down while waiting to meet with Fred's Appliance

management. He heard Mr. Davis shout and swear at Mr. Ellis and Mr. Fisher. He said

that he saw Mr. Ellis and Mr. Fisher try to calm Mr. Davis, but the situation escalated to a

point where Mr. Atkinson got out of his car and asked if they needed help. He ran inside

to get Mr. Varness.

Mr. Varness ran outside at Mr. Atkinson's prompting. He heard Mr. Davis yell,

"that f****** punk -- he did not mean it," and "He is not sincere." CP at 18. Mr.

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Varness told Mr. Davis to calm down, but Mr. Davis yelled, "I know my rights. I am

going to sue you." CP at 18. Mr. Davis, while yelling, walked to and got inside his

delivery truck. Mr. Varness told him that he could not drive "in such an emotional state"

and to get out of the truck. Mr. Varness recalled that Mr. Davis said, "I have never

walked off a job before, but I am walking off this one" and headed down the street. CP at

18.

Mr. Davis's story is different. According to Mr. Davis, Mr. Varness was at the

entire meeting. Mr. Ellis offered an insincere apology and Mr. Davis told him, "I didn't

appreciate it, that I felt his apology wasn't sincere, and that I had a lot of stuff going on at

this time." CP at 75. After a brief exchange, Mr. Davis said that he was going to file a

written complaint and walked away. He admitted that he threatened to sue. He denied

cracking his knuckles, acting agitated or angry, calling Mr. Ellis a "f****** punk" or

saying that Mr. Ellis "didn't mean it." CP at 75.

At that point, according to Mr. Davis, he walked to his delivery truck and Mr.

Varness and Mr. Fisher followed. Mr. Davis told Mr. Varness that he did not need to put

up with being called "Big Gay Al." He admitted that he may have said, "shit." CP at

336. He denied that he yelled other obscenities. He also denied the "walking off the job"

comment. CP at 254. He said that Mr. Varness or Mr. Fisher told him to go home.

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Mr. Varness and Mr. Fisher later agreed that Mr. Davis's behavior could not be

tolerated and that he should be terminated. The final decision was Mr. Fisher's. Later

that day, Mr. Fisher fired Mr. Davis. He told Mr. Davis that Mr. Davis's behavior earlier

in the day was the reason.

Mr. Davis sued. Fred's Appliance moved for summary judgment. Mr. Davis

responded with his own affidavit and a letter from the State of Washington Employment

Security Department. Fred's Appliance moved to strike various portions of the affidavit

and the entire Employment Security Department letter. The court granted the motions to

strike and granted the motion for summary judgment.

DISCUSSION

Order Striking Portions of Mr. Davis's Affidavit

We review the admissibility of evidence in summary judgment proceedings de

novo. Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P.2d 301 (1998).

The court cannot consider inadmissible evidence when ruling on a motion for

summary judgment. Charbonneau v. Wilbur Ellis Co., 9 Wn. App. 474, 512 P.2d 1126

(1973). Affidavits "shall be made on personal knowledge, shall set forth such facts as

would be admissible in evidence, and shall show affirmatively that the affiant is

competent to testify to the matters stated therein." CR 56(e). And an affidavit cannot be

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Davis v. Fred's Appliance

used to create an issue of material fact by contradicting prior deposition testimony.

McCormick v. Lake Wash. Sch. Dist., 99 Wn. App. 107, 111, 992 P.2d 511 (1999). The

court here struck a letter from the Employment Security Department and parts of Mr.

Davis's affidavit because they were inadmissible evidence or contradicted Mr. Davis's

deposition testimony.

Mr. Davis seems to contend that the court struck parts of his affidavit, not because

they were inadmissible, but because the court wanted to avoid genuine issues of material

fact. Except for two parts of his affidavit, Mr. Davis does not explain why the stricken

evidence should have been admitted. See Br. of Appellant at 28, 30. Of the two parts

that Mr. Davis does address with specific arguments, neither is preserved for appeal

because Mr. Davis did not object to the court's decision to strike. RAP 2.5(a).

Mr. Davis also argues that the court improperly struck a letter from the

Employment Security Department. The letter informed Mr. Davis that he was entitled to

unemployment benefits. Mr. Davis contends that Korslund v. DynCorp Tri-Cities Serv.,
Inc.,1 holds that the department's findings and conclusions are admissible. Br. of

Appellant at 14, 18-20, 28. But Korslund's only mention of the department's findings

and conclusions is in its recitation of the facts. Korslund, 156 Wn.2d at 175-76. What

1 156 Wn.2d 168, 125 P.3d 119 (2005).
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No. 30269-5-III
Davis v. Fred's Appliance

little Korslund says about the findings and conclusions of the department is dicta.

The letter was inadmissible for two reasons: first, because RCW 50.32.097 says

the findings, determinations, conclusions, declarations, and final orders of Employment

Security Department agents are not admissible; and second, the letter contains two levels

of hearsay. "'Hearsay'" is an out-of-court statement made "to prove the truth of the

matter asserted." ER 801(c). Hearsay is inadmissible unless it falls within certain

exceptions. ER 802, 803. Hearsay in public records or reports is admissible if the record

or report is certified. ER 803; RCW 5.44.040. The letter here includes hearsay because

the declarant is an unknown Employment Security Department employee and that

employee repeats the declaration of other witnesses. The letter is also not a certified

copy. See RCW 5.44.040.

Alternatively, Mr. Davis suggests that the letter should have been admitted

because it had some impeachment value. Br. of Appellant at 18-20. Evidence used for

impeachment will not support the elements of a cause of action. Turngren v. King

County, 104 Wn.2d 293, 306, 705 P.2d 258 (1985). Moreover, the letter merely repeats

the positions that Mr. Davis and Fred's Appliance have maintained throughout this suit.

And, except for Mr. Davis, the letter fails to identify who provided the information. It

would then have no impeachment value in any event.

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No. 30269-5-III
Davis v. Fred's Appliance

The court properly excluded the letter.

Hostile Work Environment

We review summary judgments de novo and conduct the same inquiry as the trial

court. Rice v. Offshore Sys., Inc., 167 Wn. App. 77, 88, 272 P.3d 865, review denied,

174 Wn.2d 1016 (2012). We then consider all facts and all reasonable inferences in the

light most favorable to the nonmoving party. Id. Summary judgment is appropriate when

there are no genuine issues of material fact and the moving party is entitled to judgment

as a matter of law. Folsom, 135 Wn.2d at 663.

Mr. Davis alleged that Fred's Appliance subjected him to a hostile work

environment and terminated his employment in violation of the Washington law against

discrimination (WLAD), chapter 49.60 RCW. Br. of Appellant at 21-24; CP at 6 (citing

RCW 49.60.180)); CP at 133-34. To establish a hostile work environment claim, an

employee must allege facts proving that harassment (1) was unwelcome, (2) was because

he is a member of a protected class, (3) affected the terms and conditions of his

employment, and (4) was imputable to his employer. Antonius v. King County, 153

Wn.2d 256, 261, 103 P.3d 729 (2004). There is no dispute that the "Big Gay Al"

comments were unwelcome. The rest of the elements are the concern here.

A. Protected Class

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Mr. Davis alleges that Mr. Ellis harassed him because Mr. Ellis perceived Mr.

Davis as homosexual. The WLAD prohibits discrimination on the basis of sexual

orientation. RCW 49.60.180. "'Sexual orientation'" is statutorily defined as

"heterosexuality, homosexuality, bisexuality, and gender expression or identity." RCW

49.60.040(26). The statute defines "'gender expression or identity'" as "having or being

perceived as having a gender identity, self-image, appearance, behavior, or expression,

whether or not that gender identity, self-image, appearance, behavior, or expression is

different from that traditionally associated with the sex assigned to that person at birth."

RCW 49.60.040(26). Here, there is no question that Mr. Davis belongs to a protected

class because he is heterosexual. However, a hostile work environment claim requires

that he be discriminated against because of his sexual orientation. See Glasgow v.

Georgia-Pacific Corp., 103 Wn.2d 401, 407, 693 P.2d 708 (1985). Mr. Davis was not

harassed because he is heterosexual. The question raised by the contentions here is

whether the WLAD prohibits discrimination based on perceived sexual orientation.

We look to the statute's plain language to give effect to the legislative intent.

Calhoun v. State, 146 Wn. App. 877, 885, 193 P.3d 188 (2008). The statute's language is

only open to judicial interpretation if it is ambiguous. Id. The WLAD also requires

liberal construction to accomplish its purpose. RCW 49.60.020; Marquis v. City of

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Spokane, 130 Wn.2d 97, 108, 922 P.2d 43 (1996). One of the purposes is to eliminate

and prevent employment discrimination. RCW 49.60.010. Nothing in the WLAD should

"be construed to deny the right to any person to institute any action or pursue any civil or

criminal remedy based upon an alleged violation of his or her civil rights." RCW

49.60.020.

Fred's Appliance relies on the statute's language to argue that it does not prohibit

perceived sexual orientation discrimination. Br. of Resp't at 27. And the statute makes

no mention of perception in its definition of "sexual orientation." This suggests to us that

the legislature intended perception to come into play only in gender identity

discrimination, but not in discrimination based upon homosexuality or heterosexuality.

See RCW 49.60.180.

Mr. Davis argues that the prohibition against sexual orientation discrimination

should be applied to those who are discriminated against due to perceived sexual

orientation because the court upheld a similar rule related to perceived disabilities. Br. of

Appellant at 15-18 (citing Barnes v. Washington Natural Gas Co., 22 Wn. App. 576, 591

P.2d 461 (1979)). In Barnes, the court held that a person who did not have epilepsy, but

who was perceived as having epilepsy, had a cause of action under the WLAD. 22 Wn.

App. at 583. At the time, the WLAD defined "handicap" as: "'presence of a sensory,

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mental, or physical handicap.'" The Human Rights Commission had interpreted

"handicap" as applying to any disability "'perceived to exist, whether or not it exists in

fact.'" Id. at 579 (citing former WAC 162-22-040). The court upheld the commission's

interpretation of disability. It relied on the WLAD's mandate of liberal construction. It

also relied on the rule that, when an agency is charged with enforcing a statute, that

agency's interpretation of the statute should be given great deference. Id. at 581; see

Retail Store Employees Union, Local 1001 v. Washington Surveying & Rating Bureau, 87

Wn.2d 887, 898, 558 P.2d 215 (1976).

However, the statutory context of "sexual orientation" at issue here is different

than that of "handicap" in Barnes. Here, a definition of "gender expression or identity" is

embedded in the definition of "sexual orientation." RCW 49.60.040(26). "Gender

expression or identity" explicitly includes perception. RCW 49.60.040(26) ("having or

being perceived as having a gender identity" (emphasis added)). If "being perceived" is

read into the definition of "sexual orientation," then "being perceived" in the definition of

"gender expression or identity" would be meaningless. We presume when the legislature

uses different words it intended a different meaning. State v. Keller, 98 Wn. App. 381,

384, 990 P.2d 423 (1999), aff'd, 143 Wn.2d 267, 19 P.3d 1030 (2001).

We therefore conclude that "perceived sexual orientation" is not a protected class

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Davis v. Fred's Appliance

and therefore Mr. Davis is not a member of a protected class.

B. Terms and Conditions of Employment

Mr. Davis must also show that the conduct here was so severe or pervasive that it

affected the terms and conditions of employment. Washington v. Boeing Co., 105 Wn.

App. 1, 10, 19 P.3d 1041 (2000). That is a question of fact. Adams v. Able Bldg. Supply,

Inc., 114 Wn. App. 291, 296, 57 P.3d 280 (2002). To determine whether conduct was

severe or pervasive enough to affect the terms and conditions of employment, we look at

the totality of the circumstances, including the frequency and severity of harassing

conduct, whether it was physically threatening or humiliating or merely an offensive

utterance, and whether it unreasonably interfered with the employee's work performance.

Boeing, 105 Wn. App. at 10. "Casual, isolated or trivial manifestations of a

discriminatory environment do not affect the terms or conditions of employment to a

sufficiently significant degree to violate the law." Id. And the conduct must be

objectively and subjectively abusive. Adams, 114 Wn. App. at 297.

The uncontested facts show that Mr. Ellis called Mr. Davis "Big Gay Al" three

times in one week. Mr. Ellis did not physically threaten or physically humiliate Mr.

Davis. He uttered something offensive. He made a casual reference, albeit a highly

inappropriate reference, to a television character. Again, considering the utterances here

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in a light most favorable to Mr. Davis, we are led to conclude that the utterances were

only casual, isolated, and trivial. See Boeing, 105 Wn. App. at 10.

C. Harassment Imputed to Employer

Harassment is imputed to an employer in one of two ways. See Glasgow, 103

Wn.2d at 407. First, it can be imputed to the employer if the harasser is an owner,

partner, corporate officer, or manager. Id. Second, it can be imputed to the employer if

the harasser is the plaintiff's supervisor or co-worker if the employer "authorized, knew,

or should have known of the harassment and . . . failed to take reasonably prompt and

adequate corrective action." Id.

First, Mr. Davis argues that Mr. Ellis's harassment should be imputed to Fred's

Appliance because Mr. Ellis is a manager. Br. of Appellant at 21. The two-part rule for

imputing harassment suggests that there is some difference between managers and,

collectively, supervisors and co-workers. Francom v. Costco Wholesale Corp., 98 Wn.

App. 845, 854-55, 991 P.2d 1182 (2000). At some point in an employer's chain of

command, there will be little distinction between a manager and a supervisor. Id. at 856.

Thus, to automatically impute harassment to an employer, the manager's rank in the

company's hierarchy must be high enough that the manager is the employer's alter ego.

Id. at 855-56 (front-end manager at 1 of Costco's 200 warehouses could not be imputed

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No. 30269-5-III
Davis v. Fred's Appliance

to Costco); Boeing, 105 Wn. App. at 11-12 (flight-line managers were not high enough in

Boeing's chain of command to impute their harassment to Boeing).

Mr. Ellis is alternatively called "store manager" and "sales manager." CP at 107-

08, 173-74. But Mr. Davis presents no evidence to rebut the employer's showing that

Mr. Ellis is essentially a supervisor. Mr. Ellis's authority is limited to the sales staff in

his store; but even there, he cannot fire or hire any sales employees. Mr. Ellis had no

authority to punish employees. Moreover, Mr. Ellis did not help create company policies

or business and marketing strategies, and he had no authority to execute Fred's

Appliance's contracts. Mr. Ellis held a higher position than Mr. Davis but there is no

evidence that Mr. Ellis was the employer's alter ego.

Second, Mr. Davis argues that the harassment should be imputed because Fred's

Appliance knew of the harassment and failed to take reasonably prompt and adequate

corrective action. Br. of Appellant at 25-26. He contends that Fred's Appliance's

corrective action was inadequate because Mr. Ellis ultimately gave an insincere apology

and Mr. Varness discouraged Mr. Davis from writing a more formal complaint. Br. of

Appellant at 25-26.

We read the record differently. Mr. Ellis made the last "Big Gay Al" comment on

a Thursday. Mr. Fisher and Mr. Miller learned of the comments on the same day. Mr.

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No. 30269-5-III
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Fisher told Mr. Varness about them on the following Monday. On that same day, Mr.

Varness discussed the issue with Mr. Davis and told Mr. Davis that Mr. Ellis would

apologize. The following day, Mr. Varness and Mr. Fisher met with Mr. Ellis, told him

that his comments were unacceptable and that he would apologize to Mr. Davis. The

apology obviously did not go well, but nonetheless we conclude that Fred's Appliance

took prompt and adequate steps to stop Mr. Ellis's inappropriate remarks.

Mr. Davis also suggests that Fred's Appliance did not act reasonably because Mr.

Varness discouraged him from filing a written complaint. There is no evidence that Mr.

Varness discouraged Mr. Davis from filing a more formal complaint. Mr. Davis testified

that he did not tell Mr. Varness that he wanted to file a written complaint. According to

Mr. Davis, Mr. Varness said, "Al, I would really like to keep you around here. We like

you," and Mr. Davis took that as a veiled threat that he should not file a written

complaint. The comment does not amount to a threat.

Termination -- Pretext

Mr. Davis argues that his retaliation claim should not have been dismissed because

the reason for his termination presents genuine issues of material fact. Br. of Appellant at

26. RCW 49.60.210(1) prohibits discharging or otherwise discriminating against an

employee "because he or she has opposed any practices forbidden by this chapter, or

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because he or she has filed a charge, testified, or assisted in any proceeding under this

chapter."

An employee must prove that (1) he engaged in statutorily protected opposition

activity, (2) the employer took adverse employment action, and (3) the employer took

adverse employment action because of the opposition activity. Delahunty v. Cahoon, 66

Wn. App. 829, 839, 832 P.2d 1378 (1992). If the employee makes a prima facie case,

then the burden shifts to the employer to set forth some evidence that it acted for

legitimate, nondiscriminatory reasons. Wilmot v. Kaiser Aluminum & Chem. Corp., 118

Wn.2d 46, 68-69, 821 P.2d 18 (1991).

We have already concluded that discrimination based on perceived sexual

orientation discrimination is not protected by the WLAD. We need not then address the

question of retaliation for protected activity since any activity would not be protected.

Defamation

A threshold requirement of defamation is that the alleged defamatory statement be

a statement of fact and not just opinion. Robel v. Roundup Corp., 148 Wn.2d 35, 55, 59

P.3d 611 (2002). But the line between fact and opinion is sometimes blurry. So there is

a three-part test to determine whether a statement is actionable. Dunlap v. Wayne, 105

Wn.2d 529, 539, 716 P.2d 842 (1986). We must consider: "(1) the medium and context

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in which the statement was published, (2) the audience to whom it was published, and (3)

whether the statement implies undisclosed facts." Id. Whether a statement is one of fact

or opinion is a question of law unless the statement could only be characterized as either

fact or opinion. Id. at 540 n.2.

Opinion is more likely in certain contexts. The workplace can be a place that

invites "exaggeration and personal opinion." Id. at 539; Robel, 148 Wn.2d at 57. The

statements here were comments made by one employee to another in the workplace. Mr.

Ellis made his comments as Mr. Davis entered the room. The comments were apparently

intended to be comical or perjorative, or both.

The second factor addresses the listener expectations and what the listener would

reasonably perceive about the statement. Dunlap, 105 Wn.2d at 539. Co-workers and

customers heard the statements. Mr. Davis had been delivering appliances to Fred's

Appliance stores for nearly a year at the time Mr. Ellis made his comments. His

co-workers were likely familiar enough with Mr. Davis to know that he was not gay.

Customers could not have known whether Mr. Davis was gay, but would not have

gathered that Mr. Davis was gay from Mr. Ellis's comments. In the first incident,

customers looked uncomfortable after Mr. Ellis made his comments. Mr. Davis presumes

that they were uncomfortable because they thought that Mr. Davis was gay. But in

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context it is more likely that they looked uncomfortable because they recognized that

calling a co-worker "Big Gay Al" is inappropriate. In the second incident, Mr. Ellis

explained that "Big Gay Al" is from a television program, South Park. Overhearing

customers would have understood the statement as a joke or popular cultural reference

and not necessarily a reflection on Mr. Davis's sexual orientation. In the third incident,

Mr. Ellis again said, "Hey, Big Gay Al," and Mr. Davis replied, "Hey, I thought I asked

you to stop?" In that situation, a customer overhearing it would have perceived that Mr.

Davis was the object of some teasing and not necessarily gay.

The third and most crucial factor addresses whether a listener unknown to the

plaintiff can judge the truthfulness of the statement. Id. at 530-40. While some

customers could have taken the statement "Big Gay Al" as a truthful statement, the first

and second factor suggest that the statements amounted to unwanted co-worker joking or

teasing. See Robel, 148 Wn.2d at 57 (citing Ollman v. Evans, 242 U.S. App. D.C. 301,

750 F.2d 970, 985 (1984)). Considering the totality of the circumstances, the court

correctly concluded that Fred's Appliance was entitled to judgment as a matter of law on

Mr. Davis's defamation claim.

Mr. Davis also failed to make out a prima facie case of defamation. Once the

plaintiff establishes that a statement of fact was made, he must prove four elements:

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falsity, an unprivileged communication, fault, and damages. Eubanks v. N. Cascades

Broad., 115 Wn. App. 113, 119, 61 P.3d 368 (2003). "The prima facie case must consist

of specific, material facts, rather than conclusory statements, that would allow a jury to

find that each element of defamation exists." LaMon v. Butler, 112 Wn.2d 193, 197, 770

P.2d 1027 (1989).

Mr. Davis failed to make a sufficient showing of damages. Mr. Davis seeks

special damages, but he failed to raise any specific, material facts to support this element

of defamation. See id. He also seeks general damages for "mental distress, anguish,

humiliation, and loss of enjoyment of life." CP at 6. General damages are recoverable

only from defamation per se. See Haueter v. Cowles Publ'g Co., 61 Wn. App. 572, 578,

811 P.2d 231 (1991). However, imputation of homosexuality is not defamatory per se;

defamation per se generally requires imputation of a crime or communicable disease.

Boehm v. American Bankers Ins. Group, Inc., 557 So. 2d 91, 94-95 (Fla. Dist. Ct. App.

1990); Wilson v. Harvey, 164 Ohio App. 3d 278, 285-86, 842 N.E.2d 83 (2005).

* * *

See: http://www.courts.wa.gov/opinions/index.cfm?fa=opinions.showOpinion&filename=302695MAJ

Outcome: We affirm the summary dismissal of the suit.

Plaintiff's Experts:

Defendant's Experts:

Comments: