Robel v. Roundup Corp.

Owens, J.

This court is asked to decide whether the Court of Appeals correctly reversed a bench trial judgment for petitioner Linda Robel on her claims for disability harassment, retaliation for filing a workers’ compensation claim, negligent and intentional infliction of emotional distress, and defamation. We hold that Washington’s Law Against Discrimination, chapter 49.60 RCW (the antidis-crimination statute), supports an employee’s disability based hostile work environment claim, and conclude that the trial court’s unchallenged findings of fact satisfy the elements of such a claim. We likewise conclude that the trial court’s unchallenged findings support Robel’s claim that Fred Meyer retaliated against her for filing a workers’ compensation claim. Regarding Robel’s claim for intentional infliction of emotional distress, we reject the conclusion of the Court of Appeals that the claim should not have gone to the trier of fact. Because the trial court’s findings on the elements of outrage went unchallenged, we reinstate the trial court’s decision in Robel’s favor on her outrage claim and, consequently, will not reach the claim for negligent infliction of emotional distress. However, because we agree with the Court of Appeals that the allegedly defamatory communications cited in the trial court’s findings of fact were not capable of defamatory meaning, we affirm the reversal of the trial court’s judgment on the defamation claim. We deny Robel’s request for costs and reasonable attorney fees on appeal.

FACTS

The suit arises out of Linda Robel’s employment from May 31, 1995, to September 12, 1996, in the service deli at the Francis Avenue Fred Meyer store in Spokane. On July 14, 1996, Robel sustained a workplace injury and timely filed a workers’ compensation claim. In late July, Robel was given a light-duty assignment, “a four-hour shift” during which she stood “at a display table outside the deli area offering samples of food items to customers.” Clerk’s Papers (CP) at 1333 (Finding of Fact 22). On August 1, 1996, as Robel worked at the display table, two deli workers “laughed” and “acted out a slip and fall,” as “one of them yelled ‘Oh, I hurt my back, L&I, L&I!’ ” Id. (Finding of Fact 23); see also Joint Ex. 201, at 30. They “audibly called [Robel] a ‘bitch’ and ‘cunt.’ ” Id. They also “told customers she had lied about her back and was being punished by Fred Meyer by ‘demoing’ pizzas.” Id. In journal entries for August 2, 3, 10, and 11, Robel wrote that assistant deli manager Amy Smith and others made fun of her, laughed, pointed, and gave her “dirty looks.” Joint Ex. 201, at 30-33. Robel also noted that on August 13, Smith and other deli workers would “stare at [her], whisper out loud, & laugh, pretend to hurt their backs & laugh.” Id. at 34.

Robel reported the incidents to her union representative, Ron Banka. According to Robel’s journal, Banka came in on August 14, 1996, and set up a meeting with Steve Wissink, the store director, for Friday, August 16. After the brief meeting, Banka stopped by the deli and told Robel that Wissink was convening a meeting of all deli employees on August 19, 1996. At that meeting, Wissink warned the employees that future harassment could result in termination. On August 22, 1996, deli workers “laughed and audibly admonished each other not to harass Robel.” CP at 1333 (Finding of Fact 25); Joint Ex. 201, at 35. On August 28 and 30, Robel noted in her journal that co-workers were talking about her and laughing at her, and she recorded that, on September 2, Smith and other workers “had a great time making fun of [her], calling [her] names[,] pretending to hurt their backs & yelling L&I.” Joint Ex. 201, at 35-36, 38. On September 13, 1996, Robel secured a two-week work release from her doctor and gave it to Smith that same day. Before Robel left the deli, she overheard Smith comment to other deli employees, “ ‘Can you believe it, Linda’s gonna sit on her big ass and get paid.’ ” CP at 1333 (Finding of Fact 27); see also Joint Ex. 201, at 40.

Robel again contacted Banka, who in turn contacted Wissink on September 20, 1996.¹ On September 24, Wissink telephoned Robel to confirm the allegations. Robel “told him about the C word and Bitch [,] the little plays they were doing about [her] back.” Joint Ex. 201, at 40. On September 28, 1996, Wissink terminated one employee. Robel never returned to work at Fred Meyer.

On February 13, 1998, Robel filed suit against Fred Meyer stating claims for disability discrimination (RCW 49.60.180(3)), retaliation for filing a workers’ compensation claim (RCW 51.48.025(1)), negligent and intentional infliction of emotional distress, and defamation. The trial court denied Fred Meyer’s motion for summary judgment. At the close of a three-day nonjury trial in September 1999, the court entered 69 findings of fact and 8 conclusions of law. Finding for Robel on all five causes of action, the court awarded Robel $1,902.50 in special damages and $50,000.00 in general damages, along with her reasonable attorney fees and costs.

Fred Meyer appealed. The Court of Appeals reversed the trial court’s judgment on all claims. Robel v. Roundup Corp., 103 Wn. App. 75, 10 P.3d 1104 (2000). We granted Robel’s petition for review.

ISSUES

(1) Does the antidiscrimination statute support an employee’s disability-based hostile work environment claim? If so, did the trial court’s unchallenged findings of fact support its conclusion of law that Fred Meyer discriminated against Robel based upon her physical disability?

(2) Did the trial court’s unchallenged findings of fact support the conclusion that Fred Meyer, in violation of RCW 51.48.025(1), retaliated against Robel for filing a workers’ compensation claim?

(3) Did the Court of Appeals properly hold as a matter of law that Robel’s claim for intentional infliction of emotional distress should not go to the trier of fact?

(4) Were the allegedly defamatory communications cited in the trial court’s findings of fact capable of defamatory meaning?

ANALYSIS

Standard of Review. Fred Meyer assigned error to all of the trial court’s conclusions of law but challenged none of its findings of fact. Br. of Appellant at 1-2. Unchallenged findings are verities on appeal. State v. Stenson, 132 Wn.2d 668, 697, 940 P.2d 1239 (1997); State v. Hill, 123 Wn.2d 641, 644, 647, 870 P.2d 313 (1994). This court reviews de novo Fred Meyer’s challenges to the trial court’s conclusions of law. State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996). Because “[a] conclusion of law is a conclusion of law wherever it appears,” any conclusion of law erroneously denominated a finding of fact will be subject to de novo review. Kane v. Klos, 50 Wn.2d 778, 788, 314 P.2d 672 (1957); see also Local Union 1296, Int’l Ass’n of Firefighters v. City of Kennewick, 86 Wn.2d 156, 161-62, 542 P.2d 1252 (1975).

Disability Discrimination. Under the antidiscrimination statute, “Kit is an unfair practice for any employer . . . [t]o discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability.” RCW 49.60.180(3) (emphasis added). This court has recognized that the antidiscrimination statute prohibits sexual harassment in employment, with such claims being “generally categorized as ‘quid pro quo harassment’ claims or ‘hostile work environment’ claims.” DeWater v. State, 130 Wn.2d 128, 134-35, 921 P.2d 1059 (1996) (quoting Payne v. Children’s Home Soc’y of Wash., Inc., 77 Wn. App. 507, 511 n.2, 892 P.2d 1102, review denied, 127 Wn.2d 1012 (1995)). Whether the antidiscrimination statute supports a disability-based hostile work environment claim is an issue of first impression in this state. In reviewing Robel’s claim below, Division Three of the Court of Appeals assumed arguendo that the antidiscrimination statute “encompassefd] a hostile environment claim based on a disability” but concluded that the findings of fact did not support such a claim. Robel, 103 Wn. App. at 86-87. We hold that the antidiscrimination statute supports a disability-based hostile work environment claim, and conclude that the trial court’s unchallenged findings of fact satisfied each element of the claim.

To determine whether the antidiscrimination statute supports a disability claim based on a hostile work environment, we may look to federal cases construing analogous federal statutes. Fahn v. Cowlitz County, 93 Wn.2d 368, 376, 610 P.2d 857, 621 P.2d 1293 (1980). A number of federal courts have considered whether the Americans with Disabilities Act of 1990 (the ADA, 42 U.S.C. § 12101) supports a disability claim based on the employer’s creation of a hostile work environment.² The ADA forbids discrimination that impacts a disabled person’s “terms, conditions, and privileges of employment,” a phrase likewise found in Title VII of the Civil Rights Act, which forbids discrimination based on an employee’s race, color, religion, sex, or national origin. 42 U.S.C. § 12112(a), § 2000e-2(a)(l). The United States Supreme Court has interpreted the language in Title VII to prohibit harassment that is so “severe or pervasive” as to alter the conditions of employment and create a hostile work environment. Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399, 91 L. Ed. 2d 49 (1986). When asked to extend to ADA plaintiffs this same protection afforded under Title VII, most federal courts have recognized a hostile work environment claim under the ADA and have applied the Title VII standards to those claims.³

The antidiscrimination statute, which applies with equal force to sex-based and disability-based employment discrimination, is analogous to Title VII and the ADA. Setting forth the elements that a plaintiff must prove “[t]o establish a work environment sexual harassment case” under the antidiscrimination statute, this court noted that, although federal cases interpreting Title VII were “not binding on this court,” they were “instructive” and “support [ive].” Glasgow v. Georgia-Pac. Corp., 103 Wn.2d 401, 406 & n.2, 693 P.2d 708 (1985). In Glasgow, we determined that a sexual harassment plaintiff must prove (1) that “[t]he harassment was unwelcome,” (2) that it “was because of sex,” (3) that it “affected the terms or conditions of employment,” and (4) that it was “imputed to the employer.” Id. at 406-07; see also Fisher v. Tacoma Sch. Dist. No. 10, 53 Wn. App. 591, 769 P.2d 318 (applying Glasgow factors to race based discrimination), review denied, 112 Wn.2d 1027 (1989). Just as the federal cases extended the Title VII hostile work environment claim (and its standards of proof) to the ADA, we may extend the reasoning in Glasgow to disability claims and conclude that, under the antidiscrimi-nation statute, a plaintiff in a disability-based hostile work environment case must prove (1) that he or she was disabled within the meaning of the antidiscrimination statute, (2) that the harassment was unwelcome, (3) that it was because of the disability, (4) that it affected the terms or conditions of employment, and (5) that it was imputable to the employer. The finder of fact must determine whether the plaintiff has met his or her burden as to each of these elements. See 6A Washington Pattern Jury Instructions: Civil 330.23, at 240 (1997) (WPI).

The question thus before us is whether the trial court’s findings of fact establish all five elements of Robel’s disability based hostile work environment claim. The only applicable findings are those pertaining to employee conduct occurring after Robel’s workplace injury on July 14, 1996. The first element, that Robel’s injury was a disability under RCW 49.60.180(3), was not contested. To satisfy the second element, proof that the conduct was “unwelcome,” the plaintiff must show that he or she “did not solicit or incite it” and viewed it as “undesirable or offensive.” Glasgow, 103 Wn.2d at 406; cf. 6A WPI 330.23, at 240 (requiring jury to find that plaintiff proved “[t]hat this language or conduct was unwelcome in the sense that the plaintiff regarded the conduct as undesirable and offensive, and did not solicit or incite it”). This element is fully met in the findings. No findings suggested that Robel solicited or incited the remarks made about her workplace injury. That she viewed it as undesirable and offensive was at least implicit in her reporting the conduct to Banka, but the trial court explicitly found that “[t]he harassment of Robel in the work setting was unwelcomed” and “offensive.” CP at 1335-36 (findings of fact 41, 44).

The third element, that the harassment occurred “because of” the workplace injury, “requires that the [disability] of the plaintiff-employee be the motivating factor for the unlawful discrimination.” Glasgow, 103 Wn.2d at 406. This element thus requires a nexus between the specific harassing conduct and the particular injury or disability. Satisfying the element that the conduct “occurred because of [the plaintiff’s disability],” the trial court found that “[t]he verbal and non-verbal harassment of Robel in the work setting subsequent to July 14, 1996, was directly or proximately related to her disability and/or Fred Meyer’s perception of Robel as disabled.” CP at 1334 (finding of fact 31) (emphasis added). For us to conclude that this unchallenged finding failed to satisfy the third factor, we would have to make the very fine-grained distinction that the finding’s description of the harassment as “directly or proximately related to” the disability did not mean that the harassment was “because of” the disability. We decline to split that hair. Because this clear factual finding was not challenged on appeal, we are not at liberty to substitute our judgment for that of the trial court.

Of the fourth element, whether the conduct affected the terms and conditions of employment, the Glasgow court explained that “[t]he harassment must be sufficiently pervasive so as to alter the conditions of employment and create an abusive working environment.” 103 Wn.2d at 406. As indicated in the pattern jury instruction, based on RCW 49.60.180(3) and Glasgow, a satisfactory finding on this element should indicate “[t]hat the conduct or language complained of was so offensive or pervasive that it could reasonably be expected to alter the conditions of plaintiff’s employment.” 6A WPI 330.23, at 240. The trial court found that “Fred Meyer created a hostile and abusive work environment” and that the environment “was offensive to Robel.” CP at 1335-36 (findings of fact 43-44). Another finding states that “Fred Meyer discriminated against Robel in the terms or conditions of employment when it participated in and/or failed to bring to an end. . . the verbal and non-verbal harassment of Robel in the work setting.” CP at 1336 (finding of fact 48). Describing the employer’s conduct as “offensive” enough to affect Robel’s “terms or conditions of employment” and “create G a hostile and abusive work environment,” these findings echo the critical language from Glasgow and the pattern jury instruction. We cannot pretend that the trial court failed to make the necessary findings on this element of the disability-based hostile work environment claim. Because no error was assigned to these findings, we accept them as verities and forgo any reweighing of the evidence supporting them.⁴

The fifth element, whether the postinjury conduct must be imputed to the employer, was explained in Glasgow as follows:

Where an owner, manager, partner or corporate officer personally participates in the harassment, this element is met by such proof. To hold an employer responsible for the discriminatory work environment created by a plaintiff’s supervisor(s) or co-worker(s), the employee must show that the employer (a) authorized, knew, or should have known of the harassment and (b) failed to take reasonably prompt and adequate corrective action.

103 Wn.2d at 407. Applying this passage, the jury must find either that (1) “an owner, manager, partner or corporate officer personally participate [d] in the harassment” or that (2) “the employer. . . authorized, knew, or should have known of the harassment and . . . failed to take reasonably prompt and adequate corrective action.” Id. (emphasis added); see also 6A WPI 330.23, at 240-41.

The trial court found that “Fred Meyer, through the acts of its managers, participated, authorized, knew and/or should have known of the verbal and non-verbal harassment of Robel in the work setting subsequent to July 14, 1996.” CP at 1335 (finding of fact 38) (emphasis added); see also CP at 1336 (finding of fact 46) (stating that “Fred Meyer’s management personnel improperly participated in and/or allowed the verbal and non-verbal harassment in the work setting”). The trial court clarified in its oral review of the findings that deli manager Potts and assistant deli manager Smith were management personnel for purposes of employer liability.⁵ The court also found that “Fred Meyer’s remedial action. . . was not of such a nature to have been reasonably calculated to end the harassment” and that “[i]ts investigations and termination of [one coworker] without farther management corrections were inadequate.” CP at 1335 (finding of fact 40). Moreover, the court specifically found that the postinjury harassment was “imputed to Fred Meyer.” Id. (finding of fact 39) (emphasis added). These uncontested findings of fact satisfy both options derived from Glasgow.

We therefore conclude that RCW 49.60.180(3) supports a disability-based hostile work environment claim and that the Court of Appeals erred when it ignored the trial court’s unchallenged findings of fact on the five essential elements of the claim. We reverse the Court of Appeals and reinstate the trial court’s judgment in Robel’s favor on this claim.

Retaliation for Filing Workers’ Compensation Claim. Washington’s Industrial Insurance Act provides that “[n]o employer may discharge or in any manner discriminate against any employee because such employee has filed or communicated to the employer an intent to file a claim for compensation or exercises any rights provided under this title.” RCW 51.48.025(1) (emphasis added). Robel asserts that, although Fred Meyer did not discharge her for filing her workers’ compensation claim, the company did “in [some] manner discriminate against” her “because” she filed her workers’ compensation claim. Id.; see City of Seattle v. Williams, 128 Wn.2d 341, 349, 908 P.2d 359 (1995) (courts “are duty-bound to give meaning to every word that the Legislature chose to include in a statute and to avoid rendering any language superfluous”). The trial court made the following unchallenged findings:

34. Fred Meyer has a policy that retaliation by supervisors against employees is precluded when complaints are raised by employees. Fred Meyer failed and/or refused to enforce this policy in response to the verbal and non-verbal harassment of Robel in the work setting.

35. Fred Meyer’s actions and/or inactions in regard to the verbal and non-verbal harassment of Robel in the work setting subsequent to July 14,1996, was an unlawful act of retaliation in response to her filing and/or pursuing an industrial insurance claim under RCW 51, et seq., a statutorily protected activity.

36. The verbal and non-verbal harassment of Robel in the work setting subsequent to July 14, 1996, constituted an unlawful and adverse employment action against her.

37. There exists a direct causal connection between Robel’s protected activity and the adverse employment action.

CP at 1334-35 (findings of fact 34-37) (emphasis added).

Without commenting on these unchallenged findings, which respond directly to the antidiscrimination statute, the Court of Appeals determined that Robel would have to provide “ ‘either (a) proof of a policy or practice of the employer, known to the employee, by which the employer retaliates against employees who exercise their rights under the workers’ compensation law; or (b) [proof! that the employee sustains an on-the-job injury, and is directly threatened with retaliation if the employee claims benefits under the workers’ compensation law for the injury.’ ” Robel, 103 Wn. App. at 88 (quoting Johnson v. Safeway Stores, Inc., 67 Wn. App. 10, 13, 833 P.2d 388 (1992)).

The reliance on Johnson is insupportable. At issue there was the employer’s conduct in preventing an employee from filing a claim, a circumstance not presented here. In fact, no prior cases have applied the antidiscrimination statute to the present situation—that of an employer who has allegedly discriminated in some way, short of discharge, against an employee because she filed a workers’ compensation claim. By analogy with Wilmot v. Kaiser Aluminum & Chemical Corp., 118 Wn.2d 46, 68, 821 P.2d 18 (1991), which required proof of a causal connection between the filing of a claim and the allegedly retaliatory termination, Robel was required to prove that she had filed a claim, that Fred Meyer thereafter discriminated against her in some way,⁶ and that the claim and the discrimination were causally connected. Because the findings of fact satisfy these elements and were not challenged on appeal, we reverse the Court of Appeals on the retaliation claim and reinstate the trial court’s judgment in Robel’s favor.

Intentional Infliction of Emotional Distress. Robel’s complaint stated causes of action for both negligent and intentional emotional distress, basing those claims on the same averments. In the trial court’s oral review of its findings, it stated that, “[w]ith regard to the negligence and intentional infliction claim, [it] would recognize [that the] conduct rises to the level of being intentional, particularly as it relates to management of [sic] employee Smith and conduct that took place in the direct presence of management employee Potts.” Report of Proceedings (RP) at 553. The trial court entered judgment in Robel’s favor on both, claims, but the Court of Appeals reversed.

To prevail on a claim for outrage, a plaintiff must prove three elements: “(1) extreme and outrageous conduct, (2) intentional or reckless infliction of emotional distress, and (3) severe emotional distress on the part of the plaintiff.”⁷ The first element requires proof that the conduct was “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.’ ” Dicomes v. State, 113 Wn.2d 612, 630, 782 P.2d 1002 (1989) (quoting Grimsby v. Samson, 85 Wn.2d 52, 59, 530 P.2d 291 (1975)). Although the three elements are fact questions for the jury, this first element of the test goes to the jury only after the court “determine [s] if reasonable minds could differ on whether the conduct was sufficiently extreme to result in liability.” Id. Here, the trial court entered factual findings in Robel’s favor on the three elements, CP at 1336-37 (findings of fact 51, 52, 57, 59, 60), but the Court of Appeals reversed, determining as a matter of law that “reasonable minds could not differ on whether the conduct was so extreme as to result in liability.” Robel, 103 Wn. App. at 90.

While the standard for an outrage claim is admittedly very high (by which we mean that the conduct supporting the claim must be appallingly low), we disagree with the Court of Appeals on the threshold legal question and conclude that reasonable persons could deem the employer’s conduct, as set forth in the unchallenged findings, sufficiently outrageous to trigger liability. In some contexts, perhaps the language directed at Robel could be dismissed as merely “rough” and “insulting,” as the Court of Appeals characterized it, Robel, 103 Wn. App. at 90, but we believe that reasonable minds (such as the one exercised by the trial judge) could conclude that, in light of the severity and context of the conduct, it was “ ‘beyond, all possible bounds of decency, . . . atrocious, and utterly intolerable in a civilized community.’ ” Dicomes, 113 Wn.2d at 630 (quoting Grimsby, 85 Wn.2d at 59). This court has recognized that in an outrage claim “[t]he relationship between the parties is a significant factor in determining whether liability should be imposed.” Contreras v. Crown Zellerbach Corp., 88 Wn.2d 735, 741, 565 P.2d 1173 (1977). The Contreras court emphasized that “added impetus” is given to an outrage claim “[w]hen one in a position of authority, actual or apparent, over another has allegedly made racial slurs and jokes and comments.” Id.; see also White v. Monsanto Co., 585 So. 2d 1205, 1210 (La. 1991) (stating that “plaintiff’s status as an employee may entitle him to a greater degree of protection from insult and outrage by a supervisor with authority over him than if he were a stranger”). Robel was called in her workplace names so vulgar that they have acquired nicknames, such as “the C word,” for example. Joint Ex. 201, at 40; cf. Taylor v. Metzger, 152 N.J. 490, 706 A.2d 685, 695-96 (1998) (holding that, in light of “power dynamics of the workplace,” jury could reasonably find “extreme and outrageous” a sheriff’s utterance of a single racial slur about subordinate officer). Thus, on the threshold question of law, we conclude that reasonable minds could differ on whether the conduct was sufficiently extreme to warrant the imposition of liability on the employer. The claim was properly before the finder of fact, and the trial court’s unchallenged factual findings on the elements of intentional infliction of emotional distress are verities on appeal.

Fred Meyer argued to the Court of Appeals that, “[i]n Washington, an employer is generally not, as a matter of law, liable for an intentional tort committed by an employee.” Opening Br. of Appellant at 33 (citing Kuehn v. White, 24 Wn. App. 274, 278, 600 P.2d 679 (1979)). This point of view gravely distorts the law of vicarious liability in this state. Our case law makes clear that, once an employee’s underling tort is established, the employer will be held vicariously liable if “the employee was acting within the scope of his employment.” Dickinson v. Edwards, 105 Wn.2d 457, 469, 716 P.2d 814 (1986). An employer can defeat a claim of vicarious liability by showing that the employee’s conduct was (1) “intentional or criminal” and (2) “outside the scope of employment.” Niece v. Elmview Group Home, 131 Wn.2d 39, 56, 929 P.2d 420 (1997) (emphasis added), quoted with approval in Snyder v. Med. Serv. Corp. of E. Wash., 145 Wn.2d 233, 242-43, 35 P.3d 1158 (2001). Niece and, by extension, Snyder simply do not stand for the proposition that intentional or criminal conduct is per se outside the scope of employment.⁸

An employee’s conduct will be outside the scope of employment if it “is different in kind from that authorized, far beyond the authorized time or space limits, or too little actuated by a purpose to serve the master.” Restatement (Second) of Agency § 228(2) (1958); see also Restatement, supra, § 228(1). This is not to say that an employer will be vicariously liable only where it has specifically authorized an employee to act in an intentionally harmful or negligent manner; likewise, an employer may not insulate itself from vicarious liability merely by adopting a general policy proscribing bad behavior that would otherwise be actionable. The proper inquiry is whether the employee was fulfilling his or her job functions at the time he or she engaged in the injurious conduct. For example, in Kuehn, the employee, a truck driver, stepped outside the scope of his employment when, following an exchange of obscene gestures, he ran the plaintiff’s car off the road and, after both vehicles had stopped, assaulted the plaintiff with a pipe. The Kuehn court observed that, when a servant “steps aside from the master’s business in order to effect some purpose of his own, the master is not liable.” 24 Wn. App. at 277. Similarly, this court has also determined that, where an employee’s acts are directed toward personal sexual gratification, the employee’s conduct falls outside the scope of his or her employment. For example, in Thompson v. Everett Clinic, 71 Wn. App. 548, 860 P.2d 1054 (1993), the court held that the actions of a doctor who, for his own personal sexual gratification, had manually obtained sperm samples from his male patients during examination were not within the scope of the doctor’s employment.⁹

Here, Fred Meyer was vicariously liable for the offending conduct of its deli employees. First, unlike the employee in Kuehn, who left his post and effectively ceased to be an employee, the Fred Meyer deli workers tormented Robel on company property during working hours, as they interacted with co-workers and customers and performed the duties they were hired to perform. Nothing in the record suggests that the abusive employees left their job stations or neglected their assigned duties to launch the verbal attacks on Robel. Nor was the employees’ conduct in this case directed toward deriving personal sexual gratification, an exceptional circumstance that could have taken the conduct outside the scope of their employment.

In sum, we conclude that Fred Meyer is vicariously liable, that reasonable minds could find the complained-of conduct outrageous, and that the uncontested findings satisfied the three elements of outrage. Consequently, we reverse the Court of Appeals and reinstate the trial court’s judgment for Robel on her claim for intentional infliction of emotional distress. Robel’s success on this claim makes unnecessary our consideration of Robel’s companion claim for negligent infliction of emotional distress.

Defamation. A plaintiff bringing a defamation action must prove “four essential elements: falsity, an unprivileged communication, fault, and damages.” Mark v. Seattle Times, 96 Wn.2d 473, 486, 635 P.2d 1081 (1981), cert. denied, 457 U.S. 1124 (1982). Before the truth or falsity of an allegedly defamatory statement can be assessed, a plaintiff must prove that the words constituted a statement of fact, not an opinion. Because “expressions of opinion are protected under the First Amendment,” they “are not actionable.” Camer v. Seattle Post-Intelligencer, 45 Wn.App. 29, 39, 723 P.2d 1195 (1986) (citing Gertz v. Robert Welch, Inc., 418 U.S. 323, 339, 94 S. Ct. 2997, 41 L. Ed. 2d 789 (1974) (observing that “[u]nder the First Amendment there is no such thing as a false idea”)). Whether the allegedly defamatory words were intended as a statement of fact or an expression of opinion is a threshold question of law for the court. Id.

The trial court found that “[t]he defamatory communications by Fred Meyer’s employees included that Robel was a ‘bitch,’ a ‘cunt,’ a ‘fucking bitch,’ a ‘fucking cunt,’ a ‘snitch,’ a ‘squealer,’ and/or a ‘liar,’ and the comment that ‘only idiots demo.’ ” CP at 1337 (finding of fact 63). The Court of Appeals reasonably rejected as nonactionable opinions the vulgar names Robel’s co-workers called her. Robel, 103 Wn. App. at 92 (noting that “some statements . . . cannot reasonably be understood to be meant literally and seriously and are obviously mere vituperation and abuse” (quoting Restatement (Second) of Torts § 566 cmt. e (1977))). The Court of Appeals concluded that the remaining words—“snitch,” “squealer,” “liar,” and “idiot”—were arguably defamatory statements of fact but that Robel’s claim failed because the trial court had made no finding of damages arising from the defamation claim.

We conclude, however, that none of the allegedly defamatory words could carry defamatory meaning in this case. The vulgarisms, along with the word “idiot,” were plainly abusive words not intended to be taken literally as statements of fact. To determine whether the words “snitch,” “squealer,” and “liar” should likewise be viewed as nonactionable opinions, we consider the “totality of the circumstances” surrounding those statements: “To determine whether a statement is nonactionable, a court should consider at least (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.” Dunlap v. Wayne, 105 Wn.2d 529, 539, 716 P.2d 842 (1986) (regarding as a nonactionable opinion, not a statement of fact, opposing counsel’s statement to plaintiff’s employer that plaintiff had been soliciting a kickback).

Applying the Dunlap court’s three-factor test and its reasoning, we hold as a matter of law that, as with the vulgarisms and the word “idiot,” the words “snitch,” “squealer,” and “liar” likewise constituted nonactionable opinions. Regarding the first factor, medium and context, at issue here were oral statements made in circumstances and places that invited exaggeration and personal opinion. Those engaging in the name-calling were Robel’s co-workers and superiors—individuals who were potentially interested in discrediting her complaints to management about questionable food handling practices in the deli or who were personally interested in ostracizing Robel in the workplace.

The second Dunlap factor, the audience, likewise suggests that the remarks are to be regarded as nonactionable opinions. According to the trial court’s finding, “[t]he defamatory communications were published to Fred Meyer’s customers and/or Robel’s co-workers and/or Robel’s management personnel.”¹⁰ As an audience, Robel’s coworkers and managers were certainly “prepared for mis-characterization and exaggeration.” Dunlap, 105 Wn.2d at 541. They would have been aware of the animosity between Robel and other co-workers. Such words as “snitch,” “squealer,” and “liar” would have registered, if at all, as expressions of personal opinion, not as statements of fact. Likewise, customers hearing the comments would reasonably perceive that the speaker was an antagonistic or resentful co-worker.

Analysis of the third factor, whether the words implied undisclosed defamatory facts, yields the same result—an unsurprising result since the context and audience often ensure that any implicit facts will be perceived as “merely a characterization of those facts.” Ollman v. Evans, 750 F.2d 970, 985 (D.C. Cir. 1984). To the extent the words were published to deli workers, that audience would have known the facts ostensibly underlying the epithets “snitch,” “squealer,” and “liar”—that Robel had been recording in her journal what she believed were questionable practices in the deli and that she had voiced her complaints to management. Likewise, the remark made to customers—that Robel was “ ‘demoing’ pizzas” because she had “lied about her back”—implies no undisclosed defamatory facts; rather, the remark overtly explains why the resentful, unprofessional co-worker regarded Robel as a “liar.” CP at 1333 (finding of fact 23).

Because we conclude that all of the utterances identified in the finding were nonactionable opinions, we affirm the reversal of the trial court’s judgment on Robel’s defamation claim.

Robel’s Request for Attorney Fees on Appeal. In a supplemental brief filed with this court, Robel requested costs and a reasonable attorney fee. Because no fee request was made in her petition for review, the issue was not properly raised before this court. See RAP 13.7(b). We also note that Robel based the fee request made in the supplemental brief on RCW 51.52.130, a statute that she did not cite below as a basis for a fee award. While RAP 12.1(b) gives this court the latitude to consider an issue not properly raised, the rule pertains to issues that, in our view, “should be considered to properly decide a case.” Because Robel’s fee request is not such an issue, we deny the request.

CONCLUSION

On Robel’s claims of disability discrimination, retaliation for filing a workers’ compensation claim, and intentional infliction of emotional distress, we reverse the Court of Appeals and reinstate the trial court’s judgment in Robel’s favor. We affirm the reversal of the trial court’s judgment for Robel on her defamation claim and deny Robel’s request for attorney fees on appeal.

The Court of Appeals decision is affirmed in part and reversed in part.

Alexander, C.J., and Johnson, Ireland, and Chambers, JJ., concur.

1 Finding of Fact 28 (CP at 1333) does not indicate the date on which Robel contacted Banka, nor does Robel’s journal mention the contact.

2 The Court of Appeals cited seven cases wherein federal district courts held that the ADA encompassed hostile work environment claims. Robel, 103 Wn. App. at 86. Six of those cases are among the twenty-one collected in Brian L. Porto, Annotation, Actions Under Americans with Disabilities Act (42 U.S.C.A. §§ 12101 et seq.), to Remedy Alleged Harassment or Hostile Work Environment, 162 A.L.R. Fed. 603, 612-24 (2000). Of the twenty-one cases Porto summarizes, he categorizes only three as denying recognition of hostile work environment disability claims. See also Fox v. Gen. Motors Corp., 247 F.3d 169 (4th Cir. 2001); Flowers v. S. Reg’l Physician Servs., Inc., 247 F.3d 229 (5th Cir. 2001) (claims for hostile work environment cognizable under the ADA).

3 See supra n.2.

4 Apparently misconstruing the relevant findings of fact as conclusions of law, the Court of Appeals embarked on its own analysis of this fourth factor and concluded that the findings of fact did not establish that the disability-based harassment was sufficiently pervasive, severe, and persistent to affect the terms and conditions of Robel’s employment. Robel, 103 Wn. App. at 86-87.

5 In re Marriage of Booth, 114 Wn.2d 772, 777, 791 P.2d 519 (1990) (in absence of written finding, appellate court may look to oral opinion). Managers are those who have been given by the employer the authority and power to affect the hours, wages, and working conditions of the employer’s workers. The trial court referred to Smith as “a management representative of Fred Meyer” and likewise referred to deli manager Evelyn Potts as “management employee Potts.” Report of Proceedings (RP) at 550, 551, 553. Smith, as “assistant deli manager,” made the work assignments in the deli and joined Potts in interviewing Robel for transition into a 40-hour position. CP at 1330 (finding of fact 6); RP at 179; Joint Ex. 201, at 20. Fred Meyer failed to assign error to the trial court’s findings that management-level employees participated in the harassment.

6 The unchallenged findings of fact refer to “[t]he verbal and non-verbal harassment of Robel in the work setting subsequent to July 14,1996,” as well as “Fred Meyer’s actions and/or inactions in regard to [such] harassment.” CP at 1334-35 (Findings of Fact 35-36). Although we are not called upon to weigh the sufficiency of the evidence supporting these unchallenged findings, we do note that the record shows incidents spanning the period August 1, 1996, through September 13, 1996. See supra at pages 40-41.

7 Reid. v. Pierce County, 136 Wn.2d 195, 202, 961 P.2d 333 (1998) (citing Dicomes v. State, 113 Wn.2d 612, 630; Restatement (Second) of Torts § 46 (1965)). Robel’s complaint alleges intentional infliction of emotional distress; outrage encompasses causes of action based on reckless and intentional conduct.

8 In Niece, this court took pains to say that there may be other bases of employer liability for the criminal conduct of employees quite apart from vicarious liability:

Even where an employee is acting outside the scope of employment, the relationship between employer and employee gives rise to a limited duty, owed by an employer to foreseeable victims, to prevent the tasks, premises, or instrumentalities entrusted to an employee from endangering others. This duty gives rise to causes of action for negligent hiring, retention and supervision. Liability under these theories is analytically distinct and separate from vicarious liability. These causes of action are based on the theory that “such negligence on the part of the employer is a wrong to [the injured party], entirely independent of the liability of the employer under the doctrine of respondeat superior.” Scott v. Blanchet High Sch., 50 Wn.App. 37, 43, 747 P.2d 1124 (1987) (quoting 53 Am. Jur. 2d Master and Servant § 422 (1970)), review denied, 110 Wn.2d 1016 (1988).

Niece, 131 Wn.2d at 48 (alteration in original).

9 Indeed, prior to Snyder, Washington case law regarding intentional torts and ■vicarious liability was mostly confined to sexual misconduct; naturally, the courts have held that the sexual acts of employees are not within the scope of employment. See C.J.C. v. Corp. of Catholic Bishop of Yakima, 138 Wn.2d 699, 985 P.2d 262 (1999) (holding that diocese could not be held vicariously liable for sexual abuse by priests); Niece, 131 Wn.2d 39 (holding that group home was not vicariously liable for the rape of a disabled resident by an employee); Blenheim v. Dawson & Hall, Ltd., 35 Wn. App. 435, 667 P.2d 125 (1983) (holding that employer could not be held vicariously liable where employees acted for their own purposes by assaulting and raping a dancer at a company Christmas party).

10 CP at 1338 (finding of fact 64). The use of “and/or” in this finding, taken literally, would mean that the audience could have heen any one of the three or all three—customers, co-workers, managers. Because a previous finding provides that unnamed deli workers “told customers [Robel] had lied about her back and was being punished by Fred Meyer by ‘demoing’ pizzas,” we can conclude that the audience included unidentified “customers.” CP at 1333 (finding of fact 23).