Therese Lalumiere v. Willow Springs Care, Inc. ( 2019 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 4 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
THERESE LALUMIERE, No. 17-35935
Plaintiff-Appellant, D.C. No. 1:16-cv-03133-RMP
v.
MEMORANDUM*
WILLOW SPRINGS CARE, INC., a
Washington corporation; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Rosanna Malouf Peterson, District Judge, Presiding
Submitted May 16, 2019**
Seattle, Washington
Before: HAWKINS and W. FLETCHER, Circuit Judges, and SEEBORG,***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Richard Seeborg, United States District Judge for the
Northern District of California, sitting by designation.
The district court granted summary judgment against appellant Therese
Lalumiere on her claims against her former employer and supervisors for
intentional infliction of emotional distress, retaliation, false imprisonment, and
violations of federal law regarding medical leave. We have jurisdiction pursuant to
28 U.S.C. § 1291, and our review is de novo. Vietnam Veterans of Am. v. Cent.
Intelligence Agency, 811 F.3d 1068, 1075 (9th Cir. 2016). We affirm.
No reasonable jury could find Lalumiere suffered actionable intentional
infliction of emotional distress (IIED). To establish IIED a plaintiff must prove:
“(1) extreme and outrageous conduct, (2) intentional or reckless infliction of
emotional distress, and (3) actual result to plaintiff of severe emotional distress.”
Kloepfel v Bokor, 66 P.3d 630, 632 (Wash. 2003). A claim of IIED or “outrage”
must be predicated on behavior “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.” Id. (internal quotation
marks and citations omitted). There is no cause of action for IIED for “mere
insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Id.
The evidence to which Lalumiere points shows ordinary workplace disputes
and conflict; it would not support a determination by a trier of fact that Lalumiere
was subjected to IIED, even assuming she is correct that some or all of the
allegations against her could have been rebutted. Similarly, the record regarding
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the supervisor-employee interactions lasting approximately fifteen minutes in the
workplace conference room on April 19, 2015 presents no material dispute of fact
that, if resolved in Lalumiere’s favor, would be sufficient to support a judgment
against appellees on the IIED claim.
Likewise, the district court correctly found no triable issue of fact to support
the false imprisonment claim. Lalumiere relies on Moore v. Pay’N Save Corp.,
581 P.2d 159, 163 (Wash. Ct. App. 1978), which states, “If the words and conduct
are such as to induce a reasonable apprehension of force and the means of coercion
are at hand, a person may be as effectually restrained and deprived of liberty as by
prison bars.” It may be that Lalumiere, as an employee, felt compelled to comply
with her supervisor’s instruction to go to the conference room, at the risk of
suffering negative employment consequences. Lalumiere points to no authority,
however, recognizing a “false imprisonment” claim predicated on an employee’s
decision to follow instructions to go to, or remain in, a particular location. While
Lalumiere expresses she subjectively felt fear, no reasonable trier of fact could
conclude appellees’ conduct induced a reasonable apprehension of force or that
Lalumiere was otherwise falsely imprisoned.
Lalumiere’s claims under the Federal Family Medical Leave Act (FMLA),
29 USC § 2615(a)(1), and the corresponding provisions of the Washington Family
Leave Act, WASH. REV. CODE § 49.78.300(1)(a), also present no triable issues of
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fact. Section 2615(a)(1) of the FMLA makes it unlawful for an employer to
“interfere with, restrain or deny” an employee’s exercise or attempted exercise of
any right under the act, but it “provides no relief unless the employee has been
prejudiced by the violation.” Ragsdale v. Wolverine World Wide, Inc., 535 U.S.
81, 89 (2002). The Washington Family Leave Act “must be construed to the extent
possible in a manner that is consistent with similar provisions, if any, of the
[FMLA], . . . and that gives consideration to the rules, precedents, and practices of
the federal department of labor relevant to the federal act.” WASH. REV. CODE §
49.78.410. The undisputed evidence that Lalumiere was granted paid leave within
approximately fifteen minutes or less of first requesting it, precludes any
conclusion by a reasonable trier of fact that appellees violated federal or state
medical leave law.
The district court also did not err in rejecting Lalumiere’s claim of negligent
hiring, which requires a plaintiff to prove (1) the employer knew or, in the exercise
of ordinary care, should have known of its employee’s unfitness; and (2) the
negligently hired employee proximately caused injuries to plaintiff. Carlsen v.
Wackenhut Corp., 868 P.2d 882, 886 (Wash. Ct. App. 1994). Lalumiere presents
no facts or law that would preclude appellees from employing a yet-to-be licensed
“administrator in training,” and has not shown she suffered any harm as a result of
that hiring.
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Finally, regardless of the precise statutory or common law basis of the
claims, no reasonable fact-finder could conclude Lalumiere suffered actionable
retaliation. The record is devoid of evidence that appellees had knowledge of
whistleblowing activity to which they responded with adverse employment action
against Lalumiere.
AFFIRMED.
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