      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

CHRISTOPHER YOUNG,                               No. 73521-7-1


                     Appellant,                  DIVISION ONE


      v.
                                                 UNPUBLISHED OPINION
KING COUNTY, WASHINGTON,

                     Respondent.                 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.
NO. 73521-7-1/2




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.
                                       -5-
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).
                                         -7-
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.
                                         -8-
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.
                                           -9-
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).
                                       -10-
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.
                                      -11-
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.
                                        -12-
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

                                        -13-
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).
                                       -14-
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.
                                      -15-
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).
                                         -16-
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).
                                       -17-
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.
                                        -18-
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).
                                         -19-
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
                                       -20-
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).
                                        -21-
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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