Davis v. Fred's Appliance, Inc. ( 2012 )

Sweeney, J.

¶1 This appeal follows the summary dismissal of a suit for employment discrimination. The suit is Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 68-69, 821 P.2d 18 (1991).

¶42 We have already concluded that discrimination based on perceived sexual orientation discrimination is not protected by the WLAD. We need not then address the question of retaliation for protected activity since any activity would not be protected.

Defamation

¶43 A threshold requirement of defamation is that the alleged defamatory statement be a statement of fact and not just opinion. Robel v. Roundup Corp., 148 Wn.2d 35, 55, 59 P.3d 611 (2002). But the line between fact and opinion is sometimes blurry. So there is a three-part test to determine whether a statement is actionable. Dunlap v. Wayne, 105 Wn.2d 529, 539, 716 P.2d 842 (1986). We must consider “(1) the medium and context in which the statement was published, (2) the audience to whom it was published, and (3) whether the statement implies undisclosed facts.” Id. Whether a statement is one of fact or opinion is a question of law unless the statement could only be characterized as either fact or opinion. Id. at 540 n.2.

¶44 Opinion is more likely in certain contexts. The workplace can be a place that invites “exaggeration and personal opinion.” Robel, 148 Wn.2d at 56-57; Dunlap, 105 Wn.2d at 539. The statements here were comments made by one employee to another in the workplace. Mr. Ellis made his comments as Mr. Davis entered the room. The comments were apparently intended to be comical or perjorative, or both.

¶45 The second factor addresses the listener expectations and what the listener would reasonably perceive about the statement. Dunlap, 105 Wn.2d at 539. Co-workers and customers heard the statements. Mr. Davis had been delivering appliances to Fred’s Appliance stores for nearly a year at the time Mr. Ellis made his comments. His co-workers were likely familiar enough with Mr. Davis to know that he was not gay. Customers could not have known whether Mr. Davis was gay but would not have gathered that Mr. Davis was gay from Mr. Ellis’s comments. In the first incident, customers looked uncomfortable after Mr. Ellis made his comments. Mr. Davis presumes that they were uncomfortable because they thought that Mr. Davis was gay. But in context it is more likely that they looked uncomfortable because they recognized that calling a coworker “Big Gay Al” is inappropriate. In the second incident, Mr. Ellis explained that “Big Gay Al” is from a television program, South Park. Overhearing customers would have understood the statement as a joke or popular cultural reference and not necessarily a reflection on Mr. Davis’s sexual orientation. In the third incident, Mr. Ellis again said, “Hey, Big Gay Al,” and Mr. Davis replied, “Hey, I thought I asked you to stop?” In that situation, a customer overhearing it would have perceived that Mr. Davis was the object of some teasing and not necessarily gay.

¶46 The third and most crucial factor addresses whether a listener unknown to the plaintiff can judge the truthfulness of the statement. Id. at 530-40. While some customers could have taken the statement “Big Gay Al” as a truthful statement, the first and second factor suggest that the statements amounted to unwanted co-worker joking or teasing. See Robel, 148 Wn.2d at 57 (citing Ollman v. Evans, 242 U.S. App. D.C. 301, 750 F.2d 970, 985 (1984)). Considering the totality of the circumstances, the court correctly concluded that Fred’s Appliance was entitled to judgment as a matter of law on Mr. Davis’s defamation claim.

¶47 Mr. Davis also failed to make out a prima facie case of defamation. Once the plaintiff establishes that a statement of fact was made, he must prove four elements: falsity, an unprivileged communication, fault, and damages. Eubanks v. N. Cascades Broad., 115 Wn. App. 113, 119, 61 P.3d 368 (2003). “The prima facie case must consist of specific, material facts, rather than conclusory statements, that would allow a jury to find that each element of defamation exists.” LaMon v. Butler, 112 Wn.2d 193, 197, 770 P.2d 1027 (1989).

¶48 Mr. Davis failed to make a sufficient showing of damages. Mr. Davis seeks special damages, but he failed to raise any specific, material facts to support this element of defamation. See id. He also seeks general damages for “mental distress, anguish, humiliation, and loss of enjoyment of life.” CP at 6. General damages are recoverable only from defamation per se. See Haueter v. Cowles Publ’g Co., 61 Wn. App. 572, 578, 811 P.2d 231 (1991). However, imputation of homosexuality is not defamatory per se; defamation per se generally requires imputation of a crime or communicable disease. Boehm v. Am. Bankers Ins. Grp., Inc., 557 So. 2d 91, 94-95 (Fla. Dist. Ct. App. 1990); Wilson v. Harvey, 164 Ohio App. 3d 278, 285-86, 2005-Ohio-5722, 842 N.E.2d 83.

¶49 We affirm the summary dismissal of the suit.

Brown, J., concurs.