                                                                                               Filed
                                                                                         Washington State
                                                                                         Court of Appeals
                                                                                          Division Two

                                                                                            May 3, 2016




      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                         DIVISION II
    DEXMOND EMESON,                                                  No. 46157-9-II

                                Appellant,

         v.

    DEPARTMENT OF CORRECTIONS,                                  PUBLISHED OPINION

                                Respondent.


        LEE, J. — Dezmond Emeson, a former employee of the Department of Corrections (DOC);

appeals the superior court’s dismissal of his case on summary judgment. Prior to filing this suit,

Emeson filed a suit in federal court, which alleged that DOC failed to reasonably accommodate

his disability,1 created a hostile work environment, exercised disparate treatment towards him,

retaliated against him, and wrongfully terminated him in violation of Title VII of the Civil Rights

Act and 42 U.S.C. § 1981. In the federal case, DOC moved for summary judgment, and Emeson

moved for dismissal. Pursuant to Western District of Washington Rule of Civil Procedure 7(b)(2),

the federal court granted summary judgment to DOC and dismissed Emeson’s claims with

prejudice.



1
 The actual disability Emeson claims he suffers is not entirely clear. In his federal and state court
complaints, Emeson only states he “is disabled with a mental impairment.” Clerk’s Papers (CP)
at 983, 989. The record shows that Emeson has “alluded” to various people “that he was the victim
of a gun shot [sic] wound to the head (in 1987).” CP at 185.
No. 46157-9-II


       In this case, Emeson also alleged DOC failed to reasonably accommodate his disability,

created a hostile work environment, exercised disparate treatment towards him, retaliated against

him, and wrongfully terminated him in violation of chapter 49.60 RCW and state common law. In

addition, Emeson claimed that DOC is liable for invasion of privacy for the statements contained

in a Facebook post made by a DOC employee referencing Emeson having a disability. His state

law claims were premised on the same events that precipitated his federal suit. The superior court

granted summary judgment to DOC on all of Emeson’s claims, finding res judicata precluded

Emeson’s claims that DOC created a hostile work environment, exercised disparate treatment

towards him, retaliated against him, and wrongfully terminated him. The superior court also found

that Emeson had not presented a prima facie case for his reasonable accommodation claim. And,

finally, the superior court found that Emeson’s invasion of privacy claim was brought after the

statute of limitations had expired and was not imputable to DOC.

       On appeal, Emeson contends the superior court erred dismissing his claims on res judicata

grounds because (1) the state law claims were not brought in the federal action and DOC did not

show that the claims “‘could have been brought’” in the federal action; (2) applying res judicata

to bar his claims “offend[s] the public policies of RCW 49.60 et[] seq.”; and (3) DOC did not

establish the elements of res judicata were present. Br. of Appellant at 41. Emeson also contends

the superior court erred in dismissing his invasion of privacy claim because the wrong statute of

limitations was applied and the Facebook post should be considered within the scope of

employment.




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No. 46157-9-II


        We hold that the doctrine of res judicata precludes Emeson’s claims against DOC for

failure to reasonably accommodate, hostile work environment, disparate treatment, retaliation, and

wrongful termination. We further hold that DOC is not liable for invasion of privacy because the

employee’s Facebook post was not made within the scope of her employment with DOC.

Accordingly, we affirm the superior court’s summary judgment dismissal of Emeson’s claims

against DOC.

                                              FACTS

A.      BACKGROUND FACTS2

        Dezmond Emeson worked as a community corrections officer for DOC. After several

disagreements and confrontations with other DOC personnel regarding Emeson’s job

performance, Emeson was placed on administrative leave on July 10, 2009, and DOC’s Regional

Human Resources consultant requested a “fitness for duty” evaluation. CP at 185. Dr. Bill Ekemo,

who conducted the evaluation, opined that Emeson was not able to “perform some of the essential

functions of his job at expected standards.” CP at 193.

        After Dr. Ekemo’s evaluation, DOC elected to try to find a reasonable accommodation

instead of seeking a disability separation. Emeson later accepted a position as an “Office Assistant

3” as a reasonable accommodation. Emeson began his new job as an office assistant on April 26,

2010.




2
 This appeal follows a summary judgment dismissal of Emeson’s claims by the superior court.
Accordingly, the facts recited herein are presented in the light most favorable to the non-moving
party, Emeson. Osborn v. Mason County., 157 Wn.2d 18, 22, 134 P.3d 197 (2006).


                                                 3
No. 46157-9-II


       On May 13, 2010, Sandy Phelps, Emeson’s direct supervisor, posted the following on her

Facebook page: “Haven’t heard anything about the RIF. Just dealing with the one person we all

know, and a CCO who is working the reception due to a reasonable accommodation from Parkland.

:0.” CP at 733. On May 18, the Secretary of DOC became aware of the Facebook post. On May

24, Emeson and his union representative submitted an “Official Grievance Form” to DOC. CP at

931. The Official Grievance cited Phelps’s Facebook post from May 13th and another conflict

arising in a meeting with superiors on the day the grievance was filed. DOC sent Phelps a letter

the following day reprimanding her for the Facebook post, reminding her of the ethical standards

she agreed to abide by, and suggesting further training opportunities for her to improve as a

supervisor.

       Over the course of the following seven months, Emeson had a contentious relationship

with Phelps and several other supervisors and managers. On January 29, 2011, Emeson was

notified that he was being separated from his position with DOC for inappropriate and/or

unprofessional behavior.

B.     FEDERAL LAWSUIT

       On July 1, 2011 Emeson filed a complaint in the federal District Court for the Western

District of Washington. CP at 1000. In his federal complaint, Emeson alleged DOC and DOC

supervisors or managers violated Title VII of the Civil Rights Act and 42 U.S.C. § 1981. Emeson

alleged the federal violations occurred when DOC “failed to take reasonably adequate action to

correct pervasive and severe harassment based on race, national origin, and disability, hostile

environment, and physically harmful and disparate treatment of an African-American employee




                                               4
No. 46157-9-II


of Nigerian decent who was terminated in retaliation for engaging in protected activity.” CP at

980 (plaintiff’s complaint for damages in federal court).

          On June 12, 2012, DOC moved for summary judgment dismissal on all claims.3 On June

21, Emeson moved to voluntarily dismiss his case without prejudice under Fed. R. Civ. P. 41.

Emeson did not respond to DOC’s motion for summary judgment. The federal court ruled that

Emeson had not carried his burden on summary judgment to show that there were issues of material

fact. The federal court also ruled that “Emeson’s failure to file a meaningful response is”

“‘considered by the court as an admission that the motion has merit.’” CP at 1003 (citing Western

District of Washington Rule of Civil Procedure 7(b)(2)). Consequently, the federal court denied

Emeson’s motion for voluntary dismissal to the extent it sought a dismissal without prejudice and

granted DOC’s motion for summary judgment, dismissing Emeson’s case with prejudice. Emeson

did not appeal the federal court’s order dismissing his case with prejudice.

C.        STATE LAWSUIT

          On February 8, 2013, Emeson filed a complaint for damages against DOC in Pierce County

Superior Court. Emeson then filed an amended complaint alleging DOC “failed to reasonably

accommodate Plaintiff’s disabilities, created and perpetuated a hostile environment and engaged

in disparate treatment based on plaintiff’s race/national origin and disability,” and “wrongfully

terminated Plaintiff.” CP at 994 (Plaintiff’s Amended Complaint for Damages in state court).

Emeson sought relief for “Invasion of Privacy”; “Failure to Provide Reasonable Accommodation

(RCW 49.60 et seq.)”; “Hostile Work Environment and Disparate Treatment Based on Disabilities,




3
    The parties had already engaged in discovery, and the trial was set to begin in two months.


                                                  5
No. 46157-9-II


Race, National Origin (RCW 49.60 et[] seq.)”; “Unlawful Retaliation based on complaints of

discrimination based on race, national origin and disability (RCW 49.60 et[] seq.)”, and “Actual

Discharge.” CP at 996-98 (boldface omitted).

       DOC filed a summary judgment motion to dismiss all of Emeson’s state law claims. The

superior court ruled Emeson’s hostile work environment, disparate treatment, retaliation, and

wrongful termination claims were precluded under the doctrine of res judicata based on the federal

court’s prior dismissal of Emeson’s claims. The superior court also ruled Emeson had failed to

present a prima facie case establishing his reasonable accommodation claim. Finally, the superior

court ruled against Emeson on his invasion of privacy claim on the grounds that it was brought

after the statute of limitations had expired and the conduct was not imputable to DOC.

Consequently, the superior court granted summary judgment, dismissing all of Emeson’s claims.

Emeson appeals.

                                          ANALYSIS

A.     STANDARD OF REVIEW

       We review a superior court’s grant of summary judgment de novo, engaging in the same

inquiry as the superior court. Osborn v. Mason County, 157 Wn.2d 18, 22, 134 P.3d 197 (2006).

Summary judgment is proper where there are no genuine issues of material fact and the moving

party is entitled to judgment as a matter of law. CR 56(c); Marincovich v. Tarabochia, 114 Wn.2d

271, 274, 787 P.2d 562 (1990). We view the facts in the light most favorable to Emeson as the

non-moving party and affirm summary judgment against him only if, based on all of the evidence,

reasonable people could not reach a different conclusion. Marincovich, 114 Wn.2d at 274.




                                                6
No. 46157-9-II


B.     RES JUDICATA

       The superior court summarily dismissed Emeson’s hostile work environment, disparate

treatment, retaliation, and wrongful termination claims under the doctrine of res judicata. We

agree and also hold that Emeson’s claims alleging a failure to reasonably accommodate is

precluded under the doctrine of res judicata.4

       Whether res judicata bars an action is a question of law we review de novo. Ensley v.

Pitcher, 152 Wn. App. 891, 899, 222 P.3d 99 (2009), review denied, 168 Wn.2d 1028 (2010). Res

judicata is a doctrine of claim preclusion that bars relitigation of a claim that has been determined

by a final judgment. Storti v. Univ. of Wash., 181 Wn.2d 28, 40-41, 330 P.3d 159 (2014). Filing

two separate lawsuits based on the same event is precluded under Washington law. Ensley 152

Wn. App. at 898-99. “Res judicata applies to matters that were actually litigated and those that

‘could have been raised, and in the exercise of reasonable diligence should have been raised, in

the prior proceeding.’” DeYoung v. Cenex Ltd., 100 Wn. App. 885, 891-92, 1 P.3d 587 (2000)

(quoting Kelly-Hansen v. Kelly-Hansen, 87 Wn. App. 320, 328-29, 941 P.2d 1108 (1997)), review

denied, 146 Wn.2d 1016 (2002). Res judicata is intended to prevent piecemeal litigation and to

ensure the finality of judgments. Spokane Research & Defense Fund v. City of Spokane, 155

Wn.2d 89, 99, 117 P.3d 1117 (2005). The doctrine of res judicata promotes judicial economy,

efficiency, and fairness to litigants. Storti, 181 Wn. 2d at 40.




4
  The superior court dismissed Emeson’s failure to reasonably accommodate claim on the ground
that Emeson did not establish a prima facie claim. Because we review this claim de novo, and we
can affirm or reverse on any grounds, we consider the preclusive effect of res judicata on Emeson’s
reasonable accommodation claim. Hoover v. Warner, 189 Wn. App. 509, 526, 358 P.3d 1174
(2015), review denied, 185 Wn.2d 1004 (2016).


                                                  7
No. 46157-9-II


       The threshold requirement of res judicata is a valid and final judgment on the merits in a

prior suit. Hisle v. Todd Pac. Shipyards Corp., 151 Wn.2d 853, 865, 93 P.3d 108 (2004). A grant

of summary judgment at a prior proceeding is considered a final judgment on the merits. DeYoung,

100 Wn. App. at 892.

       Our Supreme Court has enumerated four requirements for res judicata to apply. Williams

v. Leone & Keeble, Inc., 171 Wn.2d 726, 730, 254 P.3d 818 (2011). Res judicata applies and bars

the subsequent action where there is a concurrence of identity in (1) subject matter, (2) cause of

action, (3) persons and parties, and (4) quality of the persons for or against whom the claim is

made. Williams, 171 Wn. 2d at 730; DeYoung, 100 Wn. App. at 891.

       1.      Final Judgment on the Merits in a Prior Suit

       Here, the threshold requirement that there be a final judgment on the merits in a prior suit

is met. The federal court considered Emeson’s failure to respond to summary judgment as an

admission that the motion had merit and granted summary judgment in favor of DOC, dismissing

Emeson’s case with prejudice. Therefore, there is a final judgment on the merits and the inquiry

advances to whether the four enumerated requirements to finding res judicata are met.

       2.      Identity in Subject Matter

       The first requirement—whether the two actions involve the same subject matter—is met.

The federal action sought damages from DOC because it allegedly “failed to take reasonably

adequate action to correct the pervasive and severe harassment based on race, national origin, and

disability, hostile environment, and physically harmful and disparate treatment of an African-

American employee of Nigerian decent who was terminated in retaliation for engaging in protected

activity.” CP at 980 (Plaintiff’s Complaint for Damages in federal court). The state action sought



                                                8
No. 46157-9-II


damages from DOC because DOC allegedly “failed to reasonably accommodate Plaintiff’s

disabilities, created and perpetuated a hostile environment and engaged in disparate treatment

based on plaintiff’s race/national origin and disability,” and “wrongfully terminated Plaintiff”

“based on baseless claims, based on his race, national origin, disability and in retaliation for his

many complaints.” CP at 994, 996 (Plaintiff’s Amended Complaint for Damages in state court).

Thus, both actions involve alleged improper action, in an employment setting, by DOC against

Emeson based on Emeson’s race, national origin, and disability. The subject matter of both claims

is identical and the first requirement for application of res judicata is met.

       3.      Identity in the Causes of Action

       The second requirement—whether there is an identity in the causes of action presented in

the federal case and in the state case—is also met. Emeson argues there is no identity in causes of

action because his suit in federal court was brought under Title VII and 42 U.S.C. § 1981, whereas

his state suit alleges violations of chapter 49.60 RCW and state common law. In support, Emeson

argues that “under Washington’s version of the ‘substantial factor’ test applied to discrimination,

retaliation and hostile work environment claims and [sic] employee can still prevail even if

otherwise legitimate justifications existed for the employer’s actions,” but that the same is not true

under federal law. Br. of Appellant at 54. While it is true that Washington requires the protected

trait to be a “substantial” motivating factor in an employment action, Emeson misunderstands the

relationship that the qualifier “substantial” has to the federal law.

       Washington courts use a four-factor test for determining whether there is an identity in the

causes of action. DeYoung, 100 Wn. App. at 892.




                                                   9
No. 46157-9-II


       “(1) whether rights or interests established in the prior judgment would be
       destroyed or impaired by prosecution of the second action; (2) whether substantially
       the same evidence is presented in the two actions; (3) whether the two suits involve
       infringement of the same right; and (4) whether the two suits arise out of the same
       transactional nucleus of facts.”

Id. (quoting Kuhlman v. Thomas, 78 Wn. App. 115, 122, 897 P.2d 365 (1995)); see also Pederson

v. Potter, 103 Wn. App. 62, 72, 11 P.3d 833 (2000) (stating the same), review denied, 143 Wn.2d

1006 (2001). We address each factor in turn.

               a. Factor 1—Whether rights or interests established in the prior judgment
                  would be destroyed or impaired by prosecution of the second action

       The rights and interests established by the federal judgment would be impaired by the state

court suit if it were allowed to proceed. Specifically, the judgment in the federal case determined

that DOC’s summary judgment motion had merit and that Emeson’s claims therefore “should be

dismissed with prejudice.” CP at 1003.

       Emeson’s claims in the federal court suit included “harassment based on race, national

origin, and disability, hostile environment, . . . physically harmful and disparate treatment of an

African-American employee of Nigerian decent,” and “terminat[ion] in retaliation for engaging in

protected activity.” CP at 980 (quoting Plaintiff’s Complaint for Damages in federal court).

Emeson’s federal court suit also asserted violations of Title VII of the Civil Rights Act, for which

42 U.S.C. § 1981(a) provides recovery where employers fail to demonstrate a good faith effort to

reasonably accommodate a so-entitled employee.” 42 U.S.C. § 1981a(a)(2)-(3). Dismissing these

claims with prejudice precludes liability against DOC for those claims. Clearly, any judgment on

Emeson’s state law claims would subject DOC to liability for the same types of claims based on

the same facts from which the federal court dismissed. Kuhlman, 78 Wn. App. at 123.




                                                10
No. 46157-9-II


               b. Factor 2—Whether substantially the same evidence is presented in the
                  two actions

       The second factor is met because “substantially the same evidence is presented in the two

actions.” Kuhlman, 78 Wn. App. at 122. The same core facts are alleged in both claims, and no

new facts are alleged in the state court action that were not alleged in the federal court action. In

fact, all 10 of the factual allegations contained in Emeson’s amended complaint filed in state court

are verbatim, or near verbatim, duplicates of facts he alleged in his complaint filed in federal court.5

               c. Factor 3—Whether the two suits involve infringement of the same right

       The third factor requires us to address whether the two suits involve infringement of the

same right. Both suits allege Emeson’s right to a reasonable accommodation and to be free from

a hostile work environment, disparate treatment in the work place, retaliation, and wrongful

termination. However, Emeson argues that this factor cannot be met because the federal claims

require a higher burden of proof than the state law claims. We disagree.

       Title VII is a “federal counterpart” to chapter 49.60 RCW. Kumar v. Gate Gourmet, Inc.,

180 Wn.2d 481, 489 n.4, 490, 325 P.3d 193 (2014) (quoting Hiatt v. Walker Chevrolet Co., 120

Wn.2d 57, 61-62, 837 P.2d 618 (1992)). The 1991 Amendment to Title VII “provides that ‘an

unlawful employment practice is established’ when a protected characteristic is ‘a motivating

factor’ in an employment action.” Costa v. Desert Palace, Inc., 299 F.3d 838, 847 (9th Cir. 2002),

aff’d, 539 U.S. 90, 123 S. Ct. 2148, 156 L. Ed. 2d 84 (2003) (quoting 42 U.S.C. § 2000e-2(m)).




5
 Specifically, paragraphs 4.1-4.10 of the state court amended complaint mirror verbatim, or nearly
verbatim, the following paragraphs of the federal court complaint, respectively: 4.1, 4.2, 4.7, 4.10,
4.5, 4.9, 4.13, 4.15, 4.16, and 4.17. Cf. CP at 995-96 (paragraphs 4.1-4.10 of Emeson’s amended
complaint), with CP at 981-84 (paragraphs 4.1-4.18 of Emeson’s federal complaint).


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No. 46157-9-II


Thus, a plaintiff in a federal action can prevail by showing that the discrimination was “a

motivating factor” in the employment decision even though other factors also motivated the

employment decision. Costa, 299 F.3d at 848.

       Title VII states:

       It shall be an unlawful employment practice for an employer—

       (1) to fail or refuse to hire or to discharge any individual, or otherwise to
       discriminate against any individual with respect to his compensation, terms,
       conditions, or privileges of employment, because of such individual’s race, color,
       religion, sex, or national origin; or

       (2) to limit, segregate, or classify his employees or applicants for employment in
       any way which would deprive or tend to deprive any individual of employment
       opportunities or otherwise adversely affect his status as an employee, because of
       such individual’s race, color, religion, sex, or national origin.

42 U.S.C. § 2000e-2(a) (emphasis added). And, the statute continues:

       Impermissible consideration of race, color, religion, sex, or national origin in
       employment practices

       Except as otherwise provided in this subchapter, an unlawful employment practice
       is established when the complaining party demonstrates that race, color, religion,
       sex, or national origin was a motivating factor for any employment practice, even
       though other factors also motivated the practice.

42 U.S.C. § 2000-2(m) (emphasis added).

       As the Ninth Circuit in Costa recognized, a plaintiff in a Title VII discrimination case may

have evidence of a single motivating factor for the employer’s decision or may have evidence of

multiple motivating factors (“mixed motives”) for the employer’s decision. 299 F.3d at 856-57.

Regardless of whether there is a single motivating factor or mixed motives, the plaintiff’s burden




                                               12
No. 46157-9-II


of proof remains the same: “to show by a preponderance of the evidence that the challenged

employment decision was ‘because of’ discrimination.” Costa, 299 F.3d at 857 (emphasis added).6

       Under Washington law, it is an unfair practice for any employer:

       (2) To discharge or bar any person from employment because of . . . race, creed,
       color, national origin, . . . or the presence of any sensory, mental, or physical
       disability . . . .

       (3) To discriminate against any person in compensation or in other terms or
       conditions of employment because of . . . race, creed, color, national origin, . . . or
       the presence of any sensory, mental, or physical disability. . . .

RCW 49.60.180 (emphasis added).

       Thus, both the federal and state claims require a showing that the challenged employment

decision be “because of” discrimination. Our Supreme Court has further elaborated on that

standard and has held that in cases involving discrimination claims brought pursuant to RCW

46.60.180, a plaintiff needs to show “that a reasonable jury could find that the plaintiff’s protected

trait was a substantial factor motivating the employer’s adverse actions” to survive summary

judgment. Scrivener v. Clark College, 181 Wn.2d 439, 445, 334 P.3d 541 (2014) (emphasis

added); see also Mackay v. Acorn Custom Cabinetry, Inc., 127 Wn.2d 302, 310, 898 P.2d 284

(1995) (holding the same). The court went on to explain that “substantial factor” means “that the

protected characteristic was a significant motivating factor bringing about the employer’s decision.




6
  All of Emeson’s federal claims can be analyzed together because the burdens of proof and
persuasion are the same. See Snead v. Metro. Prop. & Cas. Ins. Co., 237 F.3d 1080, 1093 (9th
Cir.) (applying Title VII analysis to an ADA claim), cert. denied, 534 U.S. 888 (2001); Tarin v.
County of Los Angeles, 123 F.3d 1259, 1264 (9th Cir. 1997) (applying Title VII's analysis to a §
1981 claim).


                                                 13
No. 46157-9-II


It does not mean that the protected characteristic was the sole factor in the decision.” Scrivener,

181 Wn.2d at 444 (citations omitted).

       Thus, a plaintiff under Washington law satisfies his burden of proof when he shows

discrimination was a “substantial factor motivating the employer’s actions.” Scrivener, 181 Wn.2d

at 445. But the federal counterpart does not include the qualifier that the motivating factor needs

to be “substantial.” Cf. Scrivener, 181 Wn.2d at 445, with 42 U.S.C. § 2000e-2(m). The federal

law merely requires the plaintiff to show discrimination was a “motivating factor for any

employment practice.” 42 U.S.C. § 2000e-2(m); see also Costa, 539 U.S. at 94 (affirming Costa,

299 F.3d 838). Therefore, contrary to his assertion, Emeson’s burden of production at the

summary judgment stage in his federal court action is lower than his burden of production in his

state court action. Thus, Emeson’s contention that the federal court suit and the state court suit do

not involve infringement of the same right because the federal court claims require a higher burden

of proof than the state court claims fails.

       At oral argument, Emeson also argued that a plaintiff in a federal claim must show “but

for” discrimination and cited to the Ninth Circuit Model Civil Jury Instruction 10.3 in support.

Neither the model rule nor case law supports his argument.

       The Ninth Circuit Model Civil Jury Instruction 10.3 is titled, “Civil Rights—Title VII—

Retaliation—Elements and Burden of Proof” and states:

       The plaintiff seeks damages against the defendant for retaliation. The plaintiff has
       the burden of proving each of the following elements by a preponderance of the
       evidence:

       1. the plaintiff engaged in or was engaging in an activity protected under federal
       law, that is [activity];




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No. 46157-9-II


        2. the employer subjected the plaintiff to an adverse employment action, that is
        [adverse employment action]; and

        [3. the plaintiff was subjected to the adverse employment action because of [his]
        [her] [participation in protected activity.]
        ....
        or
        [3. the protected activity was a motivating factor in the adverse employment action.
        . . .]

NINTH CIRCUIT JURY INSTRUCTIONS COMM. MANUAL OF MODEL CIVIL JURY INSTRUCTIONS FOR

THE   DISTRICT COURTS    OF THE   NINTH CIRCUIT 10.3 (2007) (emphasis added) (alterations in

original).

        The comments to the Ninth Circuit Model Civil Jury Instruction 10.3 note that for the third

element (the “because of” element), the trial court “may provide either a ‘single motive’ or ‘mixed

motive’ instruction” to the jury. The comments go on to say that with respect to “mixed motive”

cases, an employer may escape liability for certain types of relief (e.g., orders of reinstatement,

hiring, promotion, etc.) by proving the absence of “but for” causation as an affirmative defense.

See Costa, 539 U.S. at 91 (holding that the employer can avail itself of a limited affirmative defense

that restricts the available remedies if it demonstrates that it would have taken the same action

absent the impermissible but for causation.); Costa, 299 F.3d at 850 (“[A]n employer can escape

damages and orders of reinstatement, hiring, promotion, and the like—but not attorney’s fees or

declaratory or injunctive relief—by proving the absence of ‘but for’ causation as an affirmative

defense.”). Therefore, the “but for” requirement Emeson suggested to this court at oral argument

is not a burden placed on a plaintiff in a Title VII case in federal court. Rather, the “but for”

requirement must be shown by an employer asserting an affirmative defense in a mixed motive

case in an attempt to limit damages. Consequently, Emeson’s argument fails.



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No. 46157-9-II


       Ultimately, Emeson is incorrect in arguing that there is not an identity in the causes of

action because claims under federal law require a higher burden of proof. Federal law explicitly

allows a plaintiff to establish liability by showing that the employer’s discriminatory motive was

“a motivating factor” for the adverse employment decision; whereas, Washington law requires a

showing that the discriminatory motive was “a substantial factor motivating the employer’s

actions.” Compare 42 U.S.C. § 2000e-2(m) with Scrivener, 181 Wn.2d at 445. Both of Emeson’s

suits alleged Emeson’s right to a reasonable accommodation and to be free from a hostile work

environment, disparate treatment in the work place, retaliation, and wrongful termination. The

two suits involve infringement of the same right and the third factor is satisfied. Kuhlman, 78 Wn.

App. at 122.

               d. Factor 4—Whether the two suits arise out of the same transactional
                  nucleus of facts

       The fourth factor is met because both suits arise out of the same nucleus of operative facts.

Id. Both his federal and state suits are predicated on Emeson’s allegations of a failure to reasonably

accommodate, hostile work environment, disparate treatment, retaliation, and wrongful

termination based on his race, national origin, and disability. Id. Furthermore, no new facts were

alleged in Emeson’s complaint filed in state court. Because all four factors of the second element

are met, the second element requiring an identity in the causes of action is met.7



7
 Emeson also asserts that “it is highly speculative and dubious that any claims pursuant to RCW
49.60 necessarily ‘could have’ been pursued in the above-referenced dismissed district court
action.” Br. of Appellant at 52-53. We disagree.

        Federal courts have supplemental jurisdiction over state claims sharing “‘a common
nucleus of operative fact”’ with federal claims. Bale v. Gen. Tel. Co. of Cal., 795 F.2d 775, 778
(9th Cir. 1986) (quoting United Mine Workers v. Gibbs, 383 U.S. 715, 725, 86 S. Ct. 1130, 16 L.


                                                 16
No. 46157-9-II


       4.      Identity of Persons and Parties, and Identity in Quality of Persons

       The third and fourth requirements for res judicata to apply—(3) identity in persons and

parties, and (4) identity in the quality of the persons for or against whom the claim is made—are

also met. “Under the principles of res judicata, a judgment is binding upon parties to the litigation

and persons in privity with those parties.” Loveridge v. Fred Meyer, Inc., 125 Wn.2d 759, 764,

887 P.2d 898 (1995). Privity is established “where a person is in actual control of the litigation,

or substantially participates in it.”      Loveridge, 125 Wn.2d at 764.           “[I]n general, the

employer/employee relationship is sufficient to establish privity.” Kuhlman, 78 Wn. App. at 121.

       Here, Emeson and DOC were both in actual control of their interests during the prior

federal court litigation, just as they were both in actual control of their interests in the subsequent

state court litigation. In the federal court action, Emeson named himself as the plaintiff and named

DOC8 as the defendant. In the subsequent state court action, Emeson again named himself as the

plaintiff, and named DOC as the defendant. The federal court complaint was defended entirely by

DOC, and it was pursuant to DOC’s motion that summary judgment dismissal was granted in the



Ed. 2d 218 (1966)); 28 U.S.C. § 1367(a); see also Munger v. City of Glasgow Police Dep’t, 227
F.3d 1082, 1088 n.4 (9th Cir. 2000) (finding supplemental jurisdiction proper where state claims
are based on the same factual allegations as federal claims). Because Emeson’s federal claims and
state claims are based on the same nucleus of operative facts, the federal court could have exercised
supplemental jurisdiction over Emeson’s state law claims. See e.g., Munger, 227 F.3d at 1088 n.4.
And, because res judicata “prohibits the relitigation of claims and issues that were litigated, or
could have been litigated, in a prior action,” Emeson’s assertion that the discretionary nature of
federal supplemental jurisdiction prohibits the application of res judicata fails. Pederson, 103 Wn.
App. at 67 (emphasis added).
8
  Emeson also named up to 10 “supervisors or other management employees at [DOC] whose
identities are as yet unknown.” as defendants. CP at 101. But the “yet unknown” supervisors or
managers were never identified.



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No. 46157-9-II


federal court action. Because the plaintiff and defendant in the federal court case are identical to

those in this state court action, the third and fourth requirements are met. See e.g., DeYoung, 100

Wn. App. at 893 (“Finally, the third and fourth factors—identity of the parties and persons against

whom the claims are made—are satisfied because the parties and persons in this appeal are

identical.”); Pederson, 103 Wn. App. at 73 (“Because the parties are identical, the quality of the

persons is also identical.”).

        5.      Res Judicata Applies

        The federal court entered a final judgment on the merits when it entered summary judgment

against Emeson and the four requirements for res judicata to apply are met. First, the subject

matter in both actions is identical. Second, there is an identity in the causes of action in both the

federal suit and the state suit. Third, both suits involve the same persons or parties. And fourth,

both suits involve the same quality of persons. Therefore, we hold Emeson’s claims alleging a

failure to reasonably accommodate, hostile work environment, disparate treatment, retaliation, and

wrongful termination are precluded under the doctrine of res judicata.9

C.      INVASION OF PRIVACY

        The superior court granted summary judgment to DOC with respect to Emeson’s invasion

of privacy claim for Phelps’s Facebook post on the grounds that it was not brought within the




9
  The superior court made no explicit findings based on the doctrine of collateral estoppel for the
hostile work environment, disparate treatment, and wrongful termination claims, but both parties
argued the doctrine’s application at the summary judgment hearing and in their appellate briefs.
Because we hold that Emeson’s reasonable accommodation, hostile work environment, disparate
treatment, retaliation, and wrongful termination claims are precluded under the doctrine of res
judicata, we do not reach the question of whether these claims are precluded under collateral
estoppel.


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No. 46157-9-II


statute of limitations and that the Facebook post could not be imputed to DOC.10 Although we

hold that Emeson’s invasion of privacy claim was not barred by the statute of limitations, we affirm

the superior court’s finding that the Facebook post cannot be imputed to DOC because the DOC

employee who posted the information was not acting within the scope of her employment.

       Washington recognizes the common law tort of invasion of privacy. Fisher v. State ex rel.

Dep’t of Health, 125 Wn. App, 869, 878, 106 P.3d 836 (2005). Emeson argues “what is at issue

is an improper disclosure of private medical facts.” Br. of Appellant at 78. He contends that

“through Facebook, Supervisor Phelps gave publicity to a matter concerning the private life of

Appellant; [t]hat the matter publicized would be highly offensive to a reasonable person; and,

[t]hat the matter publicized was not of legitimate public concern.” Br. of Appellant at 80. Based

on these assertions, it appears Emeson is arguing that the tort of invasion of privacy by publication

applies.

       The Restatement (Second) of Torts § 652D (1977) provides the general rule for invasion

of privacy by publication. Reid v. Pierce County, 136 Wn.2d 195, 205, 961 P.2d 333 (1998);

Fisher, 125 Wn. App. at 879. It states:

       One who gives publicity to a matter concerning the private life of another is subject
       to liability to the other for invasion of his privacy, if the matter publicized is of a
       kind that

               (a) would be highly offensive to a reasonable person, and

               (b) is not of legitimate concern to the public.



10
   This claim is not precluded under res judicata despite Emeson’s citation to it in his federal and
state complaints. Res judicata does not apply because the federal complaint only sought relief
under Title VII and 42 U.S.C. § 1981, and neither federal statute provides relief for the tort of
invasion of privacy.


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No. 46157-9-II


RESTATEMENT (SECOND) OF TORTS § 652D. As used in this section, publicity “means that the

matter is made public, by communicating it to the public at large, or to so many persons that the

matter must be regarded as substantially certain to become one of public knowledge.”

RESTATEMENT (SECOND) OF TORTS § 652D cmt. a.

       1.      Statute of Limitations

       Emeson argues that the three-year statute of limitations under RCW 4.16.080 should apply

to his invasion of privacy claim. DOC argues the two-year statute of limitations applies for two

reasons: first, because “[i]nvasion of privacy by intrusion is an intentional act” and “[i]ntentional

torts are subject to a two[-] year statute of limitations” under RCW 4.16.100; and second, “invasion

of privacy claims are subject to a two[-]year statute of limitations” under Eastwood v. Cascade

Broad. Co., 106 Wn.2d 466, 722 P.2d 1295 (1986). Br. of Resp’t at 38. We disagree with DOC

and apply the three-year statute of limitations.

       As noted, Emeson asserts an invasion of privacy by publication claim, not an invasion of

privacy by intrusion. The tort invasion of privacy by publication does not include intent as an

essential element. See Fisher, 125 Wn. App. at 879-80 (holding intent as an essential element to

an invasion of privacy by intrusion and not listing intent as a required element of invasion of

privacy by publication). Thus, invasion of privacy by publication is not an intentional tort.

       RCW 4.16.100 requires actions for “libel, slander, assault, assault and battery, or false

imprisonment,” along with actions “upon a statute for forfeiture or penalty to the state,” to be

brought within two years. In Eastwood, the court considered whether a false light invasion of

privacy claim was subject to the two-year or three-year statute of limitations. 106 Wn.2d at 469.

The court relied on the two-year statute of limitations applicable to defamation claims under RCW



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No. 46157-9-II


4.16.100 to hold that a two-year statute of limitations applies to a false light invasion of privacy

claim. “[B]ecause of the duplication inherent in false light and defamation claims [such as libel

and slander] . . . the same statute of limitations is applicable to both actions.” Id. at 474. Therefore,

a false light invasion of privacy claim “is governed by the 2-year statute of limitations for libel and

slander, RCW 4.16.100(1).” Id.

        The Eastwood analysis does not apply here because there is no indication in the record or

in the briefing that the Facebook post was either false or defamatory. Having been provided no

other authority upon which to hold the claim of invasion of privacy by publication should be

limited to a two-year statute of limitations, we may assume the parties have found none. DeHeer

v. Seattle Post-Intelligencer, 60 Wn.2d 122, 126, 372 P.2d 193 (1962).

        Moreover, a false light claim arises when publicity is given to “a matter that places another

in a false light if (a) the false light would be highly offensive to a reasonable person and (b) the

actor knew of or recklessly disregarded the falsity of the publication and the false light in which

the other would be placed.” Eastwood, 106 Wn.2d at 470-71; RESTATEMENT (SECOND) OF TORTS

§ 652E (1977). A defamation claim for either libel or slander requires (a) “a false and defamatory

statement concerning another”; (b) “an unprivileged publication to a third party”; (c) “fault

amounting at least to negligence on the publisher’s part”; and (d) “either actionability of the

statement or special harm caused by the publication.”               Eastwood, 106 Wn.2d at 470;

RESTATEMENT (SECOND) OF TORTS § 558. In contrast, invasion of privacy by publication requires

the publicized matter “(a) would be highly offensive to a reasonable person, and (b) is not of

legitimate public concern.” RESTATEMENT (SECOND) OF TORTS § 652D.




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        Here, Emeson does not assert the content of Phelps’s Facebook post was false or

defamatory, and the record does not indicate that the post was false or defamatory. Without a false

or defamatory statement, claims for libel, slander, and false light invasion of privacy fail.

Eastwood, 106 Wn.2d at 470-71; RESTATEMENT (SECOND) OF TORTS § 558. Claims for invasion

of privacy by publication can succeed without false or defamatory statements. RESTATEMENT

(SECOND) OF TORTS § 652E. Consequently, Eastwood’s analysis and holding are inapplicable, and

we hold that the three-year statute of limitations applies to the claim of invasion of privacy by

publication.

        Applying the three-year statute of limitations to Emeson’s claim, his claim is not time

barred. Phelps made the post on May 13, 2010. Emeson filed an “Official Grievance Form” citing

the Facebook post on May 24, 2010. Emeson filed his initial complaint in state court on February

8, 2013, and asserted the invasion of privacy and supporting facts in that complaint. Thus,

Emeson’s state court claim for invasion of privacy by publication was brought within the three-

year statute of limitations.

        2.      Imputation on DOC

        Emeson’s claim fails because there is no question of fact regarding whether Phelps was

acting within the scope of her employment with DOC when she made the post. Emeson cites

Robel v. Roundup Corp., 148 Wn.2d 35, 53-54, 59 P.3d 611 (2002), to support his argument that

Phelps’s conduct can be imputed to DOC. We disagree.

        The proper inquiry into whether an employee’s conduct is outside the scope of employment

is whether the employee was fulfilling her job functions at the time she was engaged in the

injurious conduct. Id. at 53. Here, Emeson does not allege that Phelps was fulfilling any job



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functions in posting the comment on Facebook, and the record does not support any such inference.

Moreover, the record shows Phelps posted the comment from her personal account at 8:04 P.M.

on May 13 on her personal Facebook page. Therefore, we hold that the trial court properly granted

summary judgment dismissal of Emeson’s invasion of privacy claim because Phelps’s Facebook

post was made outside the scope of her employment with DOC.

                                         CONCLUSION

       We hold that Emeson’s claims against DOC for failure to reasonably accommodate, hostile

work environment, disparate treatment, retaliation, and wrongful termination are precluded under

the doctrine of res judicata. We further hold that DOC is not liable for invasion of privacy because

the employee’s Facebook post was not made within the scope of her employment with DOC.

Accordingly, we affirm the superior court’s summary judgment dismissal of Emeson’s claims

against DOC.



                                                                         Lee, J.
 We concur:



                  Worswick, J.




                  Maxa, A.C.J.




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