                                                                             FILED
                                                                           APRIL 9, 2019
                                                                   In the Office of the Clerk of Court
                                                                  WA State Court of Appeals, Division III




            IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                               DIVISION THREE

RYAN FRAZIER,                                   )
                                                )         No. 35586-1-III
                      Appellant,                )
                                                )
       v.                                       )
                                                )
STEVE QUICK and JANE DOE QUICK,                 )         UNPUBLISHED OPINION
husband and wife, and OROVILLE                  )
SCHOOL DISTRICT NO. 410,                        )
                                                )
                      Respondents.              )

       KORSMO, J. — Ryan Frazier appeals from the trial court’s rejection of his claims

against the Oroville School District (OSD) and its administrators arising from the

decision not to tender him a new teaching contract. Concluding that the court did not err

by denying him a writ or in granting summary judgment, we affirm.

                                            FACTS

       Mr. Frazier was hired as a provisional teacher to teach social studies for the 2013-

14 school year. Near the end of the school year, Frazier’s first as a teacher, OSD

superintendent Steve Quick found probable cause for nonrenewal of Frazier’s teaching

contract, citing to failure to create lesson plans, failure to attend staff meetings, and a

defiant attitude during his meeting with Quick.
No. 35586-1-III
Frazier v. Quick


       Frazier was well liked by his students and considered by the junior/senior high

school principal, Kristin Sarmiento, to be a good teacher. She evaluated him three times

during the school year in accordance with state standards across multiple categories of a

teacher’s performance. His evaluations reported back grades of “Basic”, “Proficient”,

and “Distinguished”; his overall final grade was Basic. Principal Sarmiento

recommended that he be retained. However, she directed Frazier to use the online

planning program and indicated that she needed to be able to see his lesson plans.

       Superintendent Quick delivered a letter to Frazier on May 14, 2014, finding

probable cause for nonrenewal of Frazier’s teaching contract. The letter identified: (1)

lack of planning, (2) a cynical and defiant attitude evidenced in evaluation documents,

and (3) failure to attend staff meetings. On May 27, the OSD Board of Directors held a

meeting. Frazier sought to speak at the meeting, but was denied the opportunity.

       The next day, Quick, Frazier, and union representative Linda Colvin met. Frazier

displayed evidence of his work, but did not present any lesson plans. Frazier told Quick

he did not have written lesson plans because he planned in his head. He also told Quick

that he did not attend staff meetings because they were a waste of time.

       On June 5, 2014, Quick recommended that the Board of Directors not renew

Frazier’s contract. Frazier was advised that he could submit written information before

the vote. He wrote a “letter of protest” to the board informing them that he would not

submit evidence, still desired to speak in person, accused Quick of conducting a vendetta,

                                             2
No. 35586-1-III
Frazier v. Quick


and attached the complete lyrics to the Bob Dylan classic, “The Times They Are A-

Changin’.” On June 23, the board voted not to renew the contract.

       Frazier sued Quick, alleging tortious interference with contract, negligent

infliction of emotional distress (NIED), intentional infliction of emotional distress (IIED),

negligence, defamation, and ultra vires conduct. He later amended his complaint to assert

claims of NIED, IIED, negligence, and defamation against OSD. He also alleged that the

evaluation of his contract was arbitrary and capricious.

       The defendants moved for summary judgment, but the court denied the requests.

The defendants moved for reconsideration. In its order on reconsideration, the trial court

ruled that a factual question existed whether the board acted arbitrarily and capriciously.

The court also ruled that the board did not act maliciously or intentionally, or with the

intent to inflict intentional harm or emotional distress. It then dismissed the ultra vires

claim against Frazier and the defamation and IIED claims against both defendants.

       Prior to trial, the defendants filed motions in limine to exclude certain evidence.

In ruling on the in limine motions, the court noted that its order on reconsideration was

not artfully drafted and explained that the issue of arbitrary and capricious conduct would

be decided by the bench, not a jury. The jury was excused. A bench trial was then

conducted between May 23 and May 26, 2017. In a ruling issued in August, the court




                                              3
No. 35586-1-III
Frazier v. Quick


dismissed all remaining claims, ruling that the decision by OSD was not arbitrary,

capricious, or illegal, and declined to issue a constitutional writ.

       Frazier appealed to this court. A panel heard oral argument of the case.

                                         ANALYSIS

       This appeal raises procedural and substantive challenges to the summary judgment

and pretrial proceedings, as well as substantive challenges to the trial. In backwards

order, we first address the trial before turning to the pretrial rulings.

       Trial

       The court considered the applicability of a writ of certiorari in the bench trial,

ultimately declining to issue it. The court also dismissed the NIED and negligence

claims against both defendants, the tortious interference claim against Quick, and also

dismissed, for a second time, the ultra vires claim. We address the writ argument first

before turning to the other contentions.

       The hiring, retention, and release of provisional teachers is governed by statute. In

particular, RCW 28A.405.220(1) provides that all who have served as certificated

teachers for less than three years “shall be subject to nonrenewal of employment

contract.” The process of nonrenewal is prescribed in the next paragraph:

       In the event the superintendent of the school district determines that the
       employment contract of any provisional employee should not be renewed
       by the district for the next ensuing term such provisional employee shall be
       notified thereof in writing on or before May 15th preceding the
       commencement of such school term . . . which notification shall state the

                                               4
No. 35586-1-III
Frazier v. Quick


       reason or reasons for such determination. Such notice shall be served upon
       the provisional employee . . . . The determination of the superintendent
       shall be subject to the evaluation requirements of RCW 28A.405.100.1

RCW 28A.405.220(2).

       In the event of a nonrenewal notice:

       Every such provisional employee so notified, at his or her request made in
       writing and filed with the superintendent of the district within ten days after
       receiving such notice, shall be given the opportunity to meet informally
       with the superintendent for the purpose of requesting the superintendent to
       reconsider his or her decision. Such meeting shall be held no later than ten
       days following the receipt of such request . . . . At such meeting the
       provisional employee shall be given the opportunity to refute any facts
       upon which the superintendent’s determination was based and to make any
       argument in support of his or her request for reconsideration.

RCW 28A.405.220(3).

       From there, “the superintendent shall either reinstate the provisional employee or

shall submit to the school district board of directors for consideration at its next regular

meeting a written report recommending that the employment contract of the provisional

employee be nonrenewed and stating the reason or reasons therefor.” RCW

28A.405.220(4).

       In addition to the superintendent’s report, the Board of Directors “shall consider

any written communication which the provisional employee may file with the secretary

of the board at any time prior to that meeting.” Id. The Board of Directors then has ten



       1
           RCW 28A.405.100 describes the process for evaluating teachers.

                                              5
No. 35586-1-III
Frazier v. Quick


days following the meeting to notify the employee in writing of its decision. RCW

28A.405.220(5). In the event of nonrenewal, the decision of the Board of Directors

“shall be final and not subject to appeal.” Id.

       This court construed these statutes in the case of a provisional teacher who was not

renewed due to conduct issues in Petroni v. Board of Directors of Deer Park School

District No. 414, 127 Wn. App. 722, 113 P.3d 10 (2005). There we rejected an argument,

also made here by Mr. Frazier, that the teacher evaluation process of RCW 28A.405.100

was the sole basis for nonrenewal of provisional teachers. Id. at 730-731. The legislature

intended a broader basis for nonrenewal when it used the word “reasons” rather than

apply the probable cause standard of .100. Id. at 732 (citing Meyers v. Newport Consol.

Joint Sch. Dist. No. 56-415, 31 Wn. App. 145, 148, 639 P.2d 853 (1982)).

       Although .220(5) provides that there is no “appeal” from the nonrenewal

determination, the constitutional writ of certiorari is always available to allow a court to

ensure that proceedings were within the authority of the “lower tribunal.” Petroni, 127

Wn. App. at 726. A writ may be granted if the tribunal’s decision was “illegal, arbitrary,

or capricious.” Id. This court reviews the trial court’s writ decision for abuse of

discretion—i.e., did the court have tenable reasons for its ruling. Id.; Bridle Trails v. City

of Bellevue, 45 Wn. App. 248, 252, 724 P.2d 1110 (1986). Discretion is abused when it

is exercised on untenable grounds or for untenable reasons. State ex rel. Carroll v.

Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).

                                              6
No. 35586-1-III
Frazier v. Quick


       Here, the nonrenewal process followed the statutory directives. Quick gave

Frazier a written notice and then met with him (along with the union representative) the

following day. After that, Quick asked the OSD Board of Directors to not renew Frazier.

They allowed the submission of written materials in accord with the statutory process.2

After considering the submissions, they acted. RCW 28A.405.220(2)-(5). OSD followed

the process dictated by the statutes and committed no procedural error in its nonrenewal

decision.

       Similarly, there were tenable reasons for the nonrenewal decision. Frazier was a

new teacher who failed to provide written lesson plans for administrators despite requests

that he do so.3 He responded to their concerns by explaining his dislike for staff meetings

and sending nonresponsive materials such as song lyrics in lieu of evidence or argument.

He may well have not been enamored by OSD administration, but he can hardly

complain if they felt the same way about him.




       2
          Mr. Frazier contends that the board was required to allow him to present oral
remarks at the board meeting. However, the statute only requires that the board consider
written materials. RCW 28A.405.220(4). No authority compels the board to accept live
testimony or argument.
        3
          Mr. Frazier argues that evaluating him based on the on-line lesson planner violated
the collective bargaining agreement his union had with the district. If true, his remedy was
to seek relief under the bargaining agreement. Nonetheless, he does not argue that the
district could not require him to provide written lesson plans, something that he simply
refused to do. The recommendation for nonrenewal was based on the absence of lesson
plans rather than non-use of the on-line planner, and was not based on any evaluation.

                                             7
No. 35586-1-III
Frazier v. Quick


         In short, the trial judge had very tenable reasons not to issue the constitutional

writ. There was no evidence of arbitrary or capricious action by the school district. The

court did not err by denying the writ. The finding of nonarbitrary action also figures

prominently in the dismissal of the other claims.

         The trial court dismissed the ultra vires and tortious interference claims against

Quick at trial, ruling that Quick, as agent for OSD, was party to the contract and did not

constitute a third party who could interfere with the contract. The court also concluded

that Quick acted within the scope of his employment and could not have been acting ultra

vires. Both claims directed at Quick were based on allegations that he had violated Mr.

Frazier’s due process rights related to his employment contract. As noted above, none of

Mr. Frazier’s statutory rights were violated. Instead, Quick and the board followed the

statutory process. The nonrenewal decision was not arbitrary and capricious. Thus, the

allegation that Mr. Quick somehow violated those rights to Mr. Frazier’s detriment is

without support in the record. The trial court correctly dismissed these claims against

Quick.

         At the conclusion of trial, the court also dismissed the negligence and NIED

claims against both defendants. This ruling, too, was well supported by the record. The

court reasoned that neither Quick nor the board owed any duty to Frazier to avoid

negligent behavior relating to employment. Clerk’s Papers at 31.



                                                8
No. 35586-1-III
Frazier v. Quick


       This ruling was correct. A NIED claim is actionable in an employment setting.

Chea v. Men’s Wearhouse, Inc., 85 Wn. App. 405, 412, 932 P.2d 1261 (1997). To

recover on a NIED claim, a plaintiff must establish the existence of a duty, breach of that

duty, proximate cause, and objective symptomology of distress. Kumar v. Gate Gourmet,

Inc., 180 Wn.2d 481, 505, 325 P.3d 193 (2014). However, we have previously

recognized that an employer has no duty to avoid causing emotional distress in the

workplace. Bishop v. State, 77 Wn. App. 228, 234-235, 889 P.2d 959 (1995). The

termination of an at-will employee will not support a NIED claim in the absence of a

clear violation of a public policy. Lords v. N. Auto. Corp., 75 Wn. App. 589, 595, 881

P.2d 256 (1994).

       Here, Mr. Frazier did not demonstrate a negligent violation of a clear public

policy.4 The court did not err in rejecting the negligence and NIED claims.

       Summary Judgment

       Mr. Frazier also argues that the trial court erred by reconsidering and dismissing at

summary judgment his ultra vires and IIED claims.5 Because the ultra vires claim was

later dismissed at trial, we need not consider it again here. The IIED claims failed under

the well settled standards governing summary judgment.



       4
        He also did not provide evidence of objective symptomology that demonstrated
his emotional distress. Hunsley v. Giard, 87 Wn.2d 424, 433, 436, 553 P.2d 1096 (1976).
      5
        He does not challenge the dismissal of the defamation claims.

                                             9
No. 35586-1-III
Frazier v. Quick


       When considering an appeal from a summary judgment order of dismissal, an

appellate court will review the ruling de novo and consider the same evidence heard by

the trial court, viewing that evidence in a light most favorable to the party responding to

the summary judgment. Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000).

If there is no genuine issue of material fact, summary judgment will be granted if the

moving party is entitled to judgment as a matter of law. Id.; Trimble v. Wash. State

Univ., 140 Wn.2d 88, 93, 993 P.2d 259 (2000); CR 56(c).

       A party opposing a motion for summary judgment may not rely on speculation or

argumentative assertions that unresolved factual issues remain. Seven Gables Corp. v.

MGM/UA Entm’t Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986). Likewise, a party may not

rely on having its own affidavits accepted at face value. Id. Instead, the nonmoving

party must set forth specific facts that sufficiently rebut the moving parties’ contentions

and disclose that a genuine issue as to a material fact exists. Id. Ultimate facts or

conclusions of fact are insufficient; conclusory statements of fact will not suffice.

Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 359-360, 753 P.2d 517 (1988).

       The trial court correctly granted summary judgment on the IIED claims. In order

to sustain a claim of intentional infliction of emotional distress, a plaintiff must

demonstrate (1) extreme and outrageous conduct, (2) intentional or reckless infliction of

emotional distress, and (3) resulting severe emotional distress. Kloepfel v. Bokor, 149

Wn.2d 192, 196-197, 66 P.3d 630 (2003). Although these factors typically present

                                              10
No. 35586-1-III
Frazier v. Quick


factual questions for decision by trial, a trial judge can make an initial determination that

the defendant’s actions did not meet the “extremely high” standard of outrageousness.

Christian v. Tohmeh, 191 Wn. App. 709, 736, 366 P.3d 16 (2015).

       Here, Mr. Frazier’s evidence did not establish outrageous behavior by Quick and

the Board of Directors. Quick delivered to Frazier the letter recommending nonrenewal

privately in accordance with the statute, and the board likewise privately convened to

make its determination, which it also delivered by private letter in accordance with the

statute. RCW 28A.405.220( 2) and (5). Complying with the statutory process simply did

not amount to outrageous behavior.

       In a similar vein is Dicomes v. State, 113 Wn.2d 612, 782 P.2d 1002 (1989).

There an agency fired an employee who complained about other employees. The

employee was terminated via a privately delivered letter, and the agency also responded

to media inquiries about the dismissal. Id. at 616, 630. The dismissal of the employee’s

claim was upheld, with our court noting that the agency’s behavior was not “atrocious” or

“intolerable in civilized society.” Id. at 630.

       Similarly here, neither Quick nor OSD behaved outrageously. The claim properly

was dismissed at summary judgment.

       Pretrial Ruling

       Lastly, we consider Mr. Frazier’s complaint that the ruling in limine concerning

the scope of trial effectively was a reconsideration of the original reconsideration of the

                                              11
No. 35586-1-III
Frazier v. Quick


summary judgment. Although we believe he accurately characterizes the effect of the

ruling, he has not demonstrated prejudicial harm to his ability to present his case.

       While no authority authorizes reconsideration of a ruling on reconsideration, none

expressly prohibits such action, either. Rather, a prudential concern—the need for

finality—drives limits on reconsideration. A court that is always reconsidering itself is

deciding nothing. The judicial system would be stuck in a paralyzing quagmire if all

decisions were subject to further consideration.

       Nonetheless, that is not truly what happened here. Although the trial court

believed that factual questions precluded summary judgment of the case, that

determination did not itself entitle Mr. Frazier to a jury trial on the question of whether a

writ should issue. As we noted in Petroni, the constitutional writ was the sole basis for

review of the nonrenewal of a provisional teacher. 127 Wn. App. at 726. It should go

without saying that judges, not juries, issue writs. The determination at summary

judgment that factual questions existed concerning whether the board acted arbitrarily or

not entitled Mr. Frazier to a trial to the bench on whether a writ should issue. It did not

entitle him to a jury trial on that question.

       The trial court also recognized that the remaining tort claims were bound up in the

result of the writ claim and were necessarily dependent on it. It did not err by dismissing

those claims once it determined that the board did not act arbitrarily or capriciously.

Although it probably could have dismissed some or all of the remaining tort claims

                                                12
No. 35586-1-III
Frazier v. Quick


earlier at summary judgment, its failure to do so until the trial of the writ was completed

did not harm Mr. Frazier. In the end, the trial judge got to the factually and legally

proper result in light of its evidentiary determinations.

       Mr. Frazier failed to demonstrate that he was legally harmed by the rulings in

limine at trial. Whether a writ should have issued was a question for the judge, not a

question for a jury.

       OSD followed the statutorily mandated process for declining to renew a

provisional teacher. Because OSD followed the proper process, Mr. Frazier's claims

necessarily failed here.

       The judgment is affirmed.

       A majority of the panel has determined this opinion will not be printed in the

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.




WE CONCUR:




       Pennell, J.


                                              13
