Christopher Young, Appellant V. King County, Respondent

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CHRISTOPHER YOUNG,
Appellant,
v.
KING COUNTY, WASHINGTON,
Respondent.
No. 73521-7-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: August 22, 2016
Leach, 	J. 	— 	Christopher 	Young 	appeals 	the 	trial 	court's 	summary
dismissal of his claims against his employer, King County (County), and denial of
his motion to amend his complaint. 	Young asserts that the County violated the
Washington Law Against Discrimination (WLAD)1 when it failed to address his
supervisor's 	aggressive 	behavior 	toward 	Young, 	scrutiny 	of 	his 	work
performance, 	and 	pursuit of discipline for him. 	Because Young's 	proposed
amendment to 	his complaint would have been futile and would have caused
undue delay, the trial court did not abuse its discretion in denying it. 	Because
Young failed to present specific and material facts to support his claims of racial
discrimination and 	retaliation, the trial court properly dismissed those claims.
And 	because 	the 	County 	did 	not 	owe 	Young 	a 	duty to 	prevent workplace
Ch. 49.60 RCW.

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disputes, the trial court properly dismissed his negligent infliction of emotional
distress claim. 	Accordingly, we affirm.
FACTS
Christopher Young has worked for King County's Facilities Management
Division (FMD) since 2000. 	Young and other real property agents (RPAs) in the
Real Estate Services section (RES) process permits to use county land. 	Young
is an 	RPA level 	III 	and 	the most senior member of the group. 	Coworkers
recognize him as experienced and knowledgeable about permitting.
Doug Williams supervised Young from 2007 to late 2012. 	The two had
numerous conflicts. 	One of Williams's priorities for RES was to work through a
backlog of permit applications. 	Young and 	another RPA, Aaron 	Halley, saw
Williams as a "top down" supervisor with little experience in their area. 	Soon
after Williams started, Young spoke with him about Young's desire to become an
RPA IV. 	Williams declined to support a reclassification at the time but told Young
he 	felt Young 	"could 	get 	there." 	Williams 	says 	that 	after that 	point, 	their
relationship soured.
Young and Williams had a physical altercation at work on September 10,
2010. 	Young 	had 	been 	speaking 	with 	a 	coworker, 	Matthew 	Burke, 	when
Williams interjected. 	Young put his hand up in Williams's direction. 	Williams
either batted it away or grabbed it and put it on the counter. 	Young reported the
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NO. 73521-7-1/3
incident 	as 	an 	assault 	and, 	in 	two 	written 	statements, 	blamed 	Williams's
aggression. 	He did not allege that racism motivated Williams. 	Both Young and
Williams received written reprimands for disorderly conduct.
Williams saw Young's conduct at work as a problem. This led him to seek
investigations or discipline three times. 	In early 2011, he sought and obtained a
written reprimand for Young's violations of the FMD attendance policy. 	Young
and other RPAs are exempt employees under the Fair Labor Standards Act of
1938 (FLSA)2 and so are allowed to maintain somewhat flexible work schedules.
They still commit to eight-hour schedules. 	FMD managers issue reprimands and
propose suspensions for employees who repeatedly depart from their schedules.
Also in 2011, 	Williams sought advice from human 	resources (HR) managers
when he suspected Young had closed outstanding permits without following the
correct procedure. 	No investigation resulted from that complaint. 	And later that
year, Williams 	complained to management that Young 	was insubordinate in
failing to follow the correct steps in processing back payments on a permit. 	HR
investigated but did not impose any discipline on Young.
In addition to Williams, Young's coworkers also urged FMD managers to
examine Young's conduct. 	Halley complained to manager Steve Salyer in 2009
about Young's disruptive conduct. 	Wendy Siao complained in 2009 that Young
2 29 U.S.C. §§201-219.

NO. 73521-7-1/4
was creating "'an unsafe work environment'" in being rude and bullying toward
her and Williams. 	An employee in a different work unit complained in 2013 that
Young and another RPA, Alex Perlman, were "unprofessional and inappropriate"
in shouting at each other during a meeting. 	And Burke complained in 2013 about
Young's "strange behavior" and that he was "moving towards office violence
once again."
Halley also complained repeatedly to Williams that Young violated FMD
attendance policies. 	Without Williams's or management's knowledge, 	Halley
kept a log of Young's behavior from 2008 to 2009. 	He purported to document
late arrivals, early departures, long breaks, and personal phone calls and Internet
use at work. 	Williams instructed Halley to "keep[ ] his opinions to himself about
Young. 	From 2010 to 2011, Williams kept his own log of Young's attendance
and behavior, which he forwarded to his manager, Salyer.
Young, 	in turn, complained about Williams throughout their time working
together. 	Until 2012, Young's complaints centered on his beliefs that Williams
was 	incompetent 	and 	did 	not 	tolerate 	disagreement. 	Young 	asserted 	that
Williams scrutinized his conduct more closely than other employees' conduct, e-
mailed 	him 	frequently 	with 	"conflicting 	unrealistic 	expectations," 	and 	worked
collaboratively with Burke and Perlman while taking a "top down" approach with
Young. 	Young also pointed to a suggestion Williams made early on that Young
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NO. 73521-7-1/5
"did not have the 'education' or 'skill level' to do the permitting work." 	And he
asserted that Williams assigned work from 	him and 	another RES employee,
Dorothy Bolar, to Burke and Perlman.
Halley observed that Williams did 	not assign Young to train new staff;
instead, 	Halley and Bolar were responsible for training staff hired 	after them.
Williams was involved in hiring three Caucasian employees: 	Burke and Perlman
as RPA lis and a former employee, Carol Thompson, for a temporary position.3
He also helped Halley move from RPA II to RPA III. 	Williams, Halley, Bolar, and
Young are African American. 	Siao is Asian American. 	Burke and Perlman are
Caucasian.
In March 2012, Young and Williams had a 	heated argument during a
training session in Young's cubicle. 	When Young got up to leave, Williams tried
to continue the argument and partly blocked Young's exit. 	Young left anyway,
and Williams followed him. 	Both were speaking loudly. 	Williams then reengaged
Young 	when 	Young 	returned 	an 	hour 	later. 	Management 	investigated 	the
incident and proposed suspensions for both men. 	In May 2012, Salyer reminded
Young 	that 	emotional 	outbursts 	and 	accusations 	during 	meetings 	were
"unacceptable," as was repeatedly seeking 	help directly from 	HR rather than
through his chain of supervision. 	At a 	predisciplinary meeting in June 2012,
3 Williams invited Young, among other employees, to participate in hiring
for an RPA III position in 2009.
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NO. 73521-7-1/6
Young's union 	suggested 	that 	race 	may have 	been 	a 	motivating 	factor in
Williams's behavior toward Young. 	Ultimately, due to procedural concerns, the
County did not impose discipline on Young or Williams.
The June 2012 meeting was the first time Young or his representative
raised a racial discrimination claim. 	Young stated in his deposition that he did
not attribute Williams's conduct to Young's race until that time. 	HR managers
tried to investigate the discrimination claim, requesting more information by e-
mail and 	meeting 	with Young and 	his 	attorney. 	Young 	provided 	no 	more
information at the time. 	At a meeting with HR the next month, Young's attorney
asked for disability accommodations but did not mention discrimination. 	Though
Young said he had information to support his discrimination claim, he did not
follow up with any. 	HR again attempted to investigate the discrimination claim in
March 2013, but Young did not cooperate. 	When Williams first learned about the
racism complaint in March 2013, he no longer supervised Young.
Young filed a lawsuit against the County in September 2013, seeking relief
on 	five theories: 	racial discrimination, 	retaliation, 	assault, 	and 	negligent and
intentional infliction of emotional distress. 	He moved to amend his complaint
after discovery ended and shortly before the County filed its summary judgment
motion. 	The proposed amended complaint added a hostile work environment
claim. 	It newly alleged that Halley engaged in "violent and or abusive conduct"
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NO. 73521-7-1/7
and the County ratified that conduct. And it newly alleged that Young's workers'
compensation 	claim 	motivated Williams's conduct against him and that FMD
managers "condoned" both Williams's and 	Halley's actions. 	The trial 	court
denied Young's motion to amend his complaint.
The trial court granted the County's motion for summary judgment as to
Young's claims of discrimination, retaliation, assault, and intentional infliction of
emotional 	distress. 	And the 	court 	granted 	the 	County's 	motion to 	dismiss
Young's remaining 	negligent infliction of emotional distress 	claim for lack of
jurisdiction. 	Young appeals.
STANDARD OF REVIEW
This court reviews a summary judgment decision de novo, considering the
record before the trial court in the light most favorable to the nonmoving party.4
Summary judgment is appropriate only when there is no genuine issue as to any
material fact.5 	"Summary judgment in favor of the employer in a discrimination
case 	is 	often 	inappropriate 	because 	the 	evidence 	will 	generally 	contain
reasonable 	but 	competing 	inferences 	of 	both 	discrimination 	and
nondiscrimination" that a jury must resolve.6 	But "a plaintiff in a discrimination
4 Camicia v. Howard S. Wright Constr. Co., 179 Wn.2d 684, 693, 317 P.3d
987 (2014).
5 CR 56(c); Camicia, 179 Wn.2d at 693.
6 Davis v. W. One Auto. Grp., 	140 Wn. App. 449, 456, 	166 P.3d 	807
(2007).
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NO. 73521-7-1/8
case must establish specific and material facts to support each element of a
prima facie case."7
This court reviews a trial court's denial of a motion to amend for manifest
abuse of discretion.8
ANALYSIS
Motion To Amend
Young first contends that the trial court abused 	its discretion when 	it
denied his motion to amend his complaint.
A trial court shall freely grant a party leave to amend "when justice so
requires."9 	A trial court abuses its discretion if it denies leave to amend without
explaining 	its 	reasons 	unless 	those 	reasons 	are 	"apparent 	in 	light 	of 	the
circumstances shown in the record."10 These reasons may include futility, undue
prejudice, and undue delay.11
Here, the trial court did not explain its ruling. 	But the record shows that
Young's proposed amendment was futile, that denying Young's motion did not
prejudice him, and that the amendment would have caused undue delay.
7 Davis, 140 Wn. App. at 456.
8 Herron v. Tribune Pub. Co., 108Wn.2d 162, 165, 736 P.2d 249 (1987).
9 CR 15(a); Rodriguez v. Loudeve Corp., 144 Wn. App. 709, 729, 189
P.3d 168 (2008).
10 Donald B. Murphy Contractors, Inc. v. King County, 112 Wn. App. 192,
199, 49 P.3d 912 (2002).
11 Rodriguez, 144 Wn. App. at 729; Donald B. Murphy Contractors, 112
Wn. App. at 199.
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NO. 73521-7-1/9
The requested amendment added an express hostile work environment
claim. 	But Young acknowledges that he and the County actually litigated the
hostile work environment issue, and the record shows that the trial court focused
on that issue before dismissing it. 	Thus, adding an express assertion of that
claim to the complaint would be futile.
Adding 	the 	revised 	factual 	allegations 	in Young's 	amended 	complaint
would also be futile. 	Young made these allegations after the discovery cutoff, but
they described only events that occurred before he filed his original complaint.12
Young 	sought to 	add 	allegations 	that 	Halley discriminated 	against 	him, 	but
Halley's alleged acts took place, and Young found out about them, before Young
filed the original complaint. 	Thus, 	any further delay from 	Young's 	proposed
amendment, 	including interviewing newly named witnesses, would have been
undue. 	The trial court was justified in denying Young's motion.13
Disparate Treatment
Next, 	Young 	challenges 	the 	trial 	court's 	dismissal 	of 	his 	disparate
treatment claim. 	He contends that he presented sufficient evidence to show a
12 The amended complaint does not mention the investigation of Young
that the County began after Young filed the original complaint.
13 The new allegations that Young sought to include would be futile for the
additional reason that they contradict the discovery evidence. 	Some contradicted
statements 	in Young's 	deposition, 	e.g., 	that Young 	did 	not 	believe 	race 	to
motivate 	Halley. 	Others 	contradicted 	other, 	undisputed 	evidence, 	e.g., 	that
Halley did not act at management's direction and, instead, Williams discouraged
his surveillance of Young.
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NO. 73521-7-1/10
prima 	facie 	case 	for 	disparate 	treatment 	and 	evidence 	that 	the 	County's
explanations were pretextual.
To make a prima facie case of disparate treatment, Young must show he
is part of a protected class; the County treated him less favorably in the terms or
conditions of his employment than a similarly situated, nonprotected employee;
and he and that comparator were doing substantially the same work.14
If Young presents this prima facie case, the burden shifts to the County to
show legitimate, nondiscriminatory reasons for its adverse employment action.15
If the County produces this evidence, the burden shifts back to Young to show
that the County's reasons are pretextual. 	One way he can do so is by "proving
that 	discrimination 	was 	a 	substantially 	motivating 	factor 	in the 	employment
decision."16
Young failed 	to 	meet this 	burden 	at summary judgment. 	He did 	not
present sufficient evidence to establish a prima facie case or show pretext. 	The
parties do not dispute that as an African American, Young belongs to a protected
class. 	We also assume, for our analysis, that Young was doing substantially the
14 RCW 49.60.180; Domingo v. Boeing Emps.' Credit Union, 124 Wn. App.
71, 	86-88, 	98 	P.3d 	1222 (2004). 	The elements of a 	prima facie disparate
treatment case are not absolute but vary based on the relevant facts. 	Grimwood
v. Univ. of Puget Sound. Inc., 110Wn.2d355, 362-63, 753 P.2d 517 (1988).
15 Kirbv v. City of Tacoma, 124 Wn. App. 454, 464, 98 P.3d 827 (2004).
16 Scrivener v.Clark Coll., 181 Wn.2d 439, 447, 334 P.3d 541 (2014).
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NO. 73521-7-1/11
same work as two Caucasian coworkers, Matthew Burke and Alex Perlman, who
were also RPA Ills.
But Young has not "establish[ed] specific and 	material facts to support"
that he was treated less favorably than similarly situated Caucasian coworkers.17
Specifically, he presented no evidence for his claim that Burke and Perlman were
similarly situated. 	The County presented abundant evidence that Young violated
department attendance policies and policies about using county resources for
personal matters. 	Young did not provide any evidence that his comparators
behaved similarly. 	Instead, Young offered broad assertions about unspecified
other 	employees 	at 	RES: 	that 	Williams "had 	concerns 	regarding 	alleged
'misconduct'" by a Caucasian employee, that "RES employees often use County
equipment or phones for personal reasons," and that "[tjhere was a past practice
in 	RES permitting exempt employees to set their own schedules."18 	These
observations are not evidence that Burke or Perlman engaged in conduct similar
to Young's. 	Nor are they evidence that if Burke or Perlman did engage in this
conduct, they did not receive discipline similar to Young's. 	Young attempts to
17 See Domingo, 124 Wn. App. at 77-78.
18 Young offers the declaration of a coworker, Carolyn Mock, who states
that she had observed Halley visiting Facebook, watching videos, and making
personal phone calls. 	Like Young, Halley is African American. 	As a member of
the same protected class as Young, he is not a valid comparator. 	See Domingo,
124 Wn. App. at 87.
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NO. 73521-7-1/12
place the burden of showing this element on the County.19 	But this showing is
part of Young's prima facie case: 	he needed to present "specific and material
facts," and he did not.20
Young does not dispute that the County offered legitimate reasons for
reprimanding him and scrutinizing his attendance record. 	These include Young's
disorderly 	conduct 	during 	the 	September 	2010 	incident; 	his 	consistent
noncompliance with FMD's attendance policy; and complaints by peers Halley,
Burke, and 	Siao, and an 	employee outside the unit. 	Young acknowledged it
would be appropriate for Williams to look into these complaints.
Instead, Young contends that the County's reasons are a pretext for its
action. 	In his deposition, Young asserted that Williams discriminates against
other 	African 	Americans 	to 	curry 	favor 	with 	Caucasian 	coworkers 	and
supervisors. 	Young may hold this opinion, but that opinion is not evidence. 	He
does 	not 	point 	to 	any 	"specific 	and 	material 	facts" 	indicating 	that 	his 	race
19 	The 	County 	indeed 	introduced 	the 	only 	evidence 	of 	disciplinary
comparators. 	It presented evidence of numerous other employees in FMD—
though not the same division or section as Young—being disciplined similarly or
more harshly.
20 Coworker Dorothy Bolar's declaration suffers from the same vagueness
as Young's other purported evidence: 	Bolar "viewed [Young] as professional in
his tone, says she "cannot imagine anyone viewing Mr. Young as aggressive or
violent," and did not see Young as neglecting his duties. 	Likewise, a letter from
the FMD director noting that some employees had perceived "that FLSA exempt
employees do not consistently abide by regular work schedules" says nothing
about whether Burke and Perlman were among the noncompliant employees or
whether their noncompliance resembled Young's.
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NO. 73521-7-1/13
motivated Williams. 	And the totality of the circumstances does not support that
claim. 	Young 	did 	not 	mention 	race 	as 	a 	motivating 	factor 	in 	his
contemporaneous statements, did not present any evidence of this when HR met
with him in 2012 to gather evidence of bias or retaliation, and did not cooperate
when the County again tried to investigate in 2013. 	Young offered no evidence
that Williams discriminated 	in hiring: 	as 	Young 	acknowledged, 	he 	has 	no
knowledge about hiring and he did not seek this information in discovery. 	The
County offers valid, nondiscriminatory explanations for Williams's supporting role
in hiring. 	Standing alone, 	Young's statements in his deposition that 	he told
managers before 2012 that Williams "had a problem with his own race" and that
Williams valued Caucasian coworkers' input over Young's does not create an
issue of material fact about pretext. 	The trial court did not err in dismissing
Young's disparate treatment claim.
Hostile Work Environment
Young 	also 	challenges the 	trial court's dismissal 	of his discrimination
claim. 	He 	claims 	that 	he 	showed 	that 	he 	was 	subject 	to 	a 	hostile 	work
environment.
To 	establish 	a 	hostile work environment based 	on 	race, 	Young 	must
present evidence that he was subject to unwelcome harassment, the harassment
was due to his race, the harassment affected the terms and conditions of his
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NO. 73521-7-1/14
employment, and the harassment was imputable to the County.21 	Young asserts
that he made such a prima facie case. 	He also asks this court to recognize a
new cause of action for "hostile work environment due to retaliation." 	In effect,
he 	proposes that this court substitute 	harassment due to retaliation for the
second element above. 	We decline to do so here, and we conclude that Young's
hostile work environment claim would fail under either theory.
We accept, for our analysis, Young's assertion that a jury could infer he
was subject to unwelcome harassment. 	A hostile work environment does not
require a series of discrete adverse actions.22 	Young presented evidence of at
least two acts of physical aggression that would amount to intimidation and, in
one 	case, 	assault. 	We 	further 	assume that a 	jury could 	find this 	conduct
sufficiently severe or pervasive to affect Young's conditions of employment. 	The
County's 	investigations, 	on 	the 	other 	hand, 	were 	neither 	harassment 	nor
sufficient to alter Young's workplace. 	Young's peers or Young himself instigated
many of those 	investigations. 	The 	investigations resulted 	in 	only minimal
discipline. 	And Young agreed at his deposition that their subject matter was
appropriate.
21 Davis v. Fred's Appliance, Inc., 171 Wn. App. 348, 359, 287 P.3d 51
(2012).
22 See Adams v. Able Bldq. Supply, Inc., 114 Wn. App. 291, 297, 57 P.3d
280 (2002).
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NO. 73521-7-1/15
We 	also 	assume that 	Young 	has 	shown 	an 	issue 	of fact 	about the
adequacy of the County's corrective action with respect to Williams's conduct.
An employer has a duty to take prompt and appropriate action when it knows or
should know of harassment.23 Since Williams's aggressive conduct recurred with
the County's knowledge over a period of years, Young created an issue as to
whether that conduct was imputable to the County.
But Young fails to show the 	motivation 	necessary for a 	hostile work
environment. 	We do not need to consider adopting a new theory of hostile work
environment based on retaliation in this case because Young offers no evidence
that his asserted protected conduct motivated the alleged harassment. 	Nor has
he shown any evidence that his race motivated that harassment. 	He cites no
support for his assertions that his reports to HR were "viewed as disruptive and
unacceptable" 	and 	"that 	rather 	than 	meaningfully 	investigating 	the 	racially
charged treatment at the time he made his initial complaints . . . , the County's
decision makers viewed him as the cause of the conflict." 	Instead, the record
points toward the opposite conclusion. 	It shows that FMD managers tried to
investigate Young's claims several times, with limited or no cooperation from
Young.
23 Domingo, 124 Wn. App. at 85 n.32.
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NO. 73521-7-1/16
Even if the County did not adequately respond to his complaints, Young
still did not create a 	reasonable inference that his 	race or protected conduct
motivated Williams's actions. 	The e-mails from Williams that Young forwarded to
his union representative, describing them as "abuse," show at most an intrusive
management style; they do not hint at an 	improper motive. 	Nor has Young
presented any evidence that Williams knew of Young's complaints and was thus
capable of intending to retaliate. 	Young's theories about Williams's attitudes
toward 	other African Americans 	are 	no 	substitute for 	evidence 	at summary
judgment; nor are Young's theories about the way FMD managers viewed him.
Because Young presented no evidence of a racial or retaliatory motive, we affirm
the dismissal of his hostile work environment claim.
Retaliation
Young also contends that the trial court erred in dismissing his retaliation
claim.
To establish a prima facie case of retaliation, Young must show that he
engaged in statutorily protected activity, that he suffered an adverse employment
action, and that his protected activity caused the County to take the adverse
action.24 	To show this 	causal link, Young must show that retaliation was a
24 RCW 49.60.210(1); Currier v. Northland Servs., Inc.. 182 Wn. App. 733,
742, 332 P.3d 1006 (2014), review denied, 182 Wn.2d 1006 (2015).
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NO. 73521-7-1/17
substantial factor 	in 	the 	County's 	actions—requiring that 	the 	decision-maker
knew about the protected activity.25
Young contends that his reports to management about Williams's conduct
were protected activity. 	He further contends that he created an issue of fact as to
whether Williams took adverse actions against him through "a combination of
reprimands, investigations and physical and non-physical conduct." 	He alleges
this "pattern of hostility" continued as 	Young complained about Williams. 	If
Young succeeds in making this prima facie case, he must also present evidence
that the County's legitimate reasons for its actions were pretextual.26 	We reject
Young's retaliation claim because Young did not present evidence that Williams
or others at the County took adverse actions against him because of protected
activity.
First, 	Young alleged 	no adverse 	actions 	that 	occurred 	after Williams
learned of protected activity. 	A general complaint about an employer's actions is
not protected conduct under the WLAD without some reference to the plaintiff's
protected status.27 	Young presented no evidence that he made a discrimination
25 See Francom v. Costco Wholesale Corp., 98 Wn. App. 845, 862, 991
P.2d 1182(2000).
26 Currier, 182 Wn. App. at 743.
27 Alonso v. Qwest Commc'ns Co., 178 Wn. App. 734, 753-54, 315 P.3d
610(2013).
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NO. 73521-7-1/18
complaint before June 2012.28 	Therefore, Young cannot base a retaliation claim
on any actions taken 	before then. 	Young also 	presented 	no evidence that
Williams learned about Young's racism complaints before 2013, when he was no
longer supervising Young. Thus, nearly all of Williams's requests for discipline or
investigations, along with instances of his aggressive conduct, preceded Young's
asserted protected activity. 	The lone exception is an October 2012 incident in
which Williams grabbed papers from Young's hand while Young was at the copy
machine. 	That incident alone is not 	an adverse employment action and 	so
cannot support a retaliation claim.29
Second, 	none 	of the 	conduct Young 	complains 	about 	is 	an 	adverse
employment action. 	Young does not allege he was ever denied compensation.
The 	most 	severe 	action 	the 	County 	took 	against 	Young 	was 	to 	threaten
suspension, but that cannot support a retaliation claim as it came before Young's
protected activity. 	Moreover, the County withdrew that proposal, and 	a mere
threat of discipline is not an adverse employment action.30 	And while the paper-
grabbing incident did occur after Young alleged racial discrimination, that incident
28 Young stated in his deposition that he told several managers before
2012 that Williams "had a problem with his own race." 	Young declined to offer
further 	details 	or 	conduct discovery about these 	reports. 	Nor did 	he 	offer
evidence that Williams knew about them.
29 Washington v. Boeing Co., 105 Wn. App. 1, 10, 19 P.3d 1041 	(2000)
(noting 	that 	"[cjasual, 	isolated 	or 	trivial 	manifestations 	of 	a 	discriminatory
environment" do not violate the law).
30 Kirbv, 124 Wn. App. at 465.
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NO. 73521-7-1/19
alone cannot support Young's allegation of a "pattern of harassment." 	This
incident 	would 	not 	dissuade 	a 	reasonable 	employee 	from 	charging
discrimination.31 	We therefore affirm the dismissal of Young's retaliation claim.
Negligent Infliction of Emotional Distress
Finally, 	Young 	contends 	that the 	trial 	court erred 	in 	dismissing 	his
negligent infliction of emotional distress (NIED) claim.
This court may affirm on any basis the record supports.32 	Because we
hold that the County did not owe Young a duty to prevent the acts he alleges, we
decline to decide whether the Industrial Insurance Act33 barred Young's NIED
claim and whether that claim duplicated his discrimination claims.
We test a plaintiff's NIED claim "'against the established concepts of duty,
breach, proximate cause, and damage or injury.'"34 	The existence of a duty is a
question 	of law.35 	An employer 	has 	a 	duty "to provide all employees 	a
reasonably 	safe 	place to work."36 	But "'absent a 	statutory or public 	policy
mandate, employers do not owe employees a duty to use reasonable care to
31 See Bovd v. State, 187 Wn. App. 1, 13, 349 P.3d 864 (2015).
32 Hadlev v. Cowan, 60 Wn. App. 433, 444, 804 P.2d 1271 (1991).
33 Title 51 RCW.
34 Snyder v. Med. Serv. Corp. of E. Wash., 145 Wn.2d 233, 243, 35 P.3d
1158 (2001) (quoting 	Hunslev v. Giard, 87 Wn.2d 424, 434, 553 P.2d 1096
(1976)).
35 Snyder, 145 Wn.2d at 243.
36 McCarthy v. Dep't of Soc. & Health Servs., 110 Wn.2d 812, 818-19, 759
P.2d 351 	(1988) (finding a duty to provide a workplace reasonably free from
tobacco smoke).
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NO. 73521-7-1/20
avoid 	the 	inadvertent 	infliction 	of 	emotional 	distress 	when 	responding 	to
workplace disputes.'"37
The County did not owe Young a duty to prevent the incidents that Young
alleges harmed him. 	The Supreme Court has excluded from separate NIED
claims the type of workplace conflicts that Young points to as aggressive and
stressful: 	an incident where Young abruptly left a training exercise, one where
Williams grabbed 	papers 	from Young 	when 	Young 	was 	at 	the 	copier, 	and
management's alleged ratification of Halley's surveillance of Young.38
Young casts his allegations about Williams as "non-work related," but he
does not support that description. 	He presented no evidence that Williams's
conduct extended beyond workplace matters like the supervisor's conduct in
Strong 	v. 	Terrell,39 on 	which 	he 	relies. 	There, 	the 	supervisor mocked 	the
plaintiff's hair color, her house, her husband's employment, and her role as a
mother; spit in her face while screaming at her; and disconnected the telephone
when 	she worked the 	night shift.40 	In contrast, each instance of aggression
Young 	cites 	arose 	directly 	from, 	and 	was 	limited 	to, workplace 	matters.41
37 Snyder, 145 Wn.2d at 244 (quoting Bishop v. State, 77 Wn. App. 228,
234-35, 889 P.2d 959 (1995)).
38 See Snyder, 145 Wn.2d at 243-44.
39 147 Wn. App. 376, 195 P.3d 977 (2008).
40 Strong, 147 Wn. App. at 388-89.
41 The October 2012 incident apparently stemmed from 	a dispute over
whose papers were in the copy machine. 	The September 2010 incident began
when 	Williams interjected 	in Young 	and 	Burke's 	conversation 	about 	permit
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NO. 73521-7-1/21
"'[Ejmployers, not the courts, are in the best position to determine whether such
disputes 	should 	be 	resolved by employee 	counseling, discipline, 	transfers,
terminations or no action at all.'"42 	The County had no duty to provide Young
"with a stress free workplace."43
In asserting his NIED claim, Young contends the 	County should 	have
treated 	him differently, 	particularly by 	limiting 	his 	interaction 	with Williams,
because it knew he had received diagnoses of anxiety, panic attacks, and PTSD
(posttraumatic stress disorder). 	The appropriate cause of action in that case
would be for failure to accommodate a disability.44 	But Young did not plead or
argue such a claim, and we do not speculate whether that claim would have
succeeded.
We affirm the dismissal of Young's NIED claim.
processing. 	Young does not allege that Williams made comments that went
beyond workplace matters on these occasions or any other.
42 Snyder, 	145 Wn.2d 	at 245 	(quoting 	Bishop, 	77 Wn. App. at 234).
Although Young likens his case to the plaintiff's in Chea v. Men's Wearhouse,
Inc., 85 Wn. App. 405, 412, 932 P.2d 1261 (1997), the Supreme Court limited
Chea to its facts. 	It held that this court was correct in affirming the verdict in
Chea only because the employer did not argue the issue of duty. 	Snyder, 145
Wn.2d at 245-46. 	Since the County raised the duty issue at the trial level, Chea
does not aid Young here.
43 Snyder, 145 Wn.2d at 243.
44 See Sommer v. Dep't of Soc. & Health Servs., 104 Wn. App. 160, 172,
15P.3d664(2001).
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NO. 73521-7-1/22
CONCLUSION
Because Young fails to present evidence sufficient to avoid summary
judgment on any claim and the trial court did not abuse its discretion in denying
his motion to amend the complaint, we affirm.
WE CONCUR:
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