DO NOT CITE

DO NOT CITE. SEE RAP 10.4(h).

Court of Appeals Division III
State of Washington

Opinion Information Sheet

Docket Number:	25909-9
Title of Case:	Dave Woody v. Darby Stapp, et al
File Date:	05/20/2008

SOURCE OF APPEAL
----------------

Appeal from Benton Superior Court
Docket No:	06-2-00755-4
Judgment or order under review
Date filed:	01/12/2007
Judge signing:	Honorable Craig J Matheson

JUDGES
------

Authored by	Stephen M. Brown
Concurring:	Teresa C. Kulik
	Philip James Thompson

COUNSEL OF RECORD
-----------------

Counsel for Appellant(s)
	Dave Woody (Appearing Pro Se)
	705 South 27th Ave.
	Yakima, WA, 98902
Counsel for Respondent(s)
	Jerome R. Aiken
	Attorney at Law
	Po Box 22680
	Yakima, WA, 98907-2680

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

DAVE WOODY, No. 25909-9-III

)

Appellant, )

) Division Three

v. )

)

DARBY STAPP and the marital )

community composed of DARBY AND )

JANE DOE STAPP, JENNIFER IRLAM, )

ELLEN PRENDERGAST and the marital )

community composed of ELLEN AND )

JOHN DOE PRENDERGAST, MICHAEL )

FALLON and the marital community )

composed of MICHAEL AND JANE ) UNPUBLISHED OPINION

DOE FALLON, )

)

Respondents. )

)

Brown, J. -- David M. Woody worked as an at-will employee for Pacific

Northwest National Laboratories/Battelle. His employment was terminated based on

investigative reports given by his co-workers, Darby Stapp, Jennifer Irlam (formerly

Zohn), Ellen Prendergast, and Michael Fallon, following an investigation prompted by

Mr. Woody's refusal to attend a work meeting in the presence of Ms. Irlam. Mr. Woody

No. 25909-9-III

Woody v. Stapp

sued the co-workers, alleging defamation, civil conspiracy, and tortious interference

with a business expectancy. He appeals the summary dismissal of his suit, contending

material fact issues remain and the co-workers' false statements exceeded the qualified

immunity accorded internal investigative reports. We disagree, and affirm.

FACTS

In July 2004, after two years with Battelle as an at-will employee, Mr. Woody

refused Mr. Stapp's request that he attend a work meeting with Ms. Irlam, explaining he

had been sexually harassed by her. Battelle's equal employment opportunity (EEO)

specialist investigated and interviewed Mr. Woody's co-workers.

Ms. Irlam denied harassing Mr. Woody and reported he told her that he had a

crush on her and was unhappily married. She reported Mr. Woody had given her a

romantic card after she filed for divorce and often put his arm around her and tried to

hug her. Ms. Irlam related an incident when Mr. Woody walked into her office, closed

the door, and then tried to kiss her and she resisted. The next day, he sent an e-mail

that said, "Should I close your door again today?" Clerk's Papers (CP) at 15. Ms. Irlam

responded, "Umm, No!" Id.

Mr. Stapp reported Ms. Irlam told him about the incident. Further, Mr. Woody

sent him several e-mails bragging about his abilities to romance Ms. Irlam.

Ms. Prendergast reported Mr. Woody bragged that he "nailed" Ms. Irlam and

commented on Ms. Irlam's working relationship with another co-worker, stating, "I would

No. 25909-9-III

Woody v. Stapp

do that if someone gave me a blowjob." CP at 82 (emphasis in original).

Mr. Fallon, an intern, reported to the investigator that Mr. Woody bragged about

having "unlawful carnal knowledge" of Ms. Irlam. CP at 83. He reported an incident

where Mr. Woody used a hammer in a threatening way toward another co-worker. Mr.

Fallon further reported Mr. Woody instructed him on his way to meet the investigator

that Mr. Fallon needed to "back your brother's play." CP at 83.

Battelle's EEO investigation determined Ms. Irlam's personal conversations with

Mr. Woody "were not unwelcome" and not sexually harassing. CP at 83. Battelle's

management, however, found:

[Mr. Woody] had engaged in a series of threatening, intimidating and

unprofessional behaviors. [Mr. Woody] was aggressive and threatening

to another co-worker. [Mr. Woody] had also engaged in inappropriate

verbal comments, insinuations and innuendos of a sexual nature about co-

workers. [Mr. Woody] was not forthright during the investigation and then

attempted to intimidate and influence others to support his version of

events and allegations.

CP at 83. Mr. Woody was terminated on August 9, 2004, for "engaging in hostile,

intimidating, and unprofessional behavior" violating Battelle's policies. CP at 84.

Mr. Woody sued the co-workers, alleging defamation, civil conspiracy to defame,

and tortious interference with his business expectancy. After summary dismissal of all

claims, Mr. Woody appealed.

ANALYSIS

The issue is whether the trial court erred in deciding no material facts remained

No. 25909-9-III

Woody v. Stapp

before summarily dismissing Mr. Woody's defamation, civil conspiracy, and tortious

interference with a business expectancy claims.

We review summary judgment grants de novo. Hubbard v. Spokane County,

146 Wn.2d 699, 706-07, 50 P.3d 602 (2002). Summary judgments require no

remaining issues of material fact for the moving party to receive judgment as a matter

of law. CR 56(c). All facts and reasonable inferences are construed in a light most

favorable to the non-moving party. Hubbard, 146 Wn.2d at 707. We may affirm the

trial court's grant of summary judgment if it is supported by any grounds in the record.

LaMon v. Butler, 112 Wn.2d 193, 200-01, 770 P.2d 1027 (1989). When reasonable

minds could reach but one conclusion, questions of fact may be determined as a matter

of law. Michelsen v. Boeing Co., 63 Wn. App. 917, 920, 826 P.2d 214 (1991).

1. Defamation. Surviving a defense summary judgment motion requires the

plaintiff to show disputed material facts concerning the defamation elements: "falsity,

an unprivileged communication, fault, and damages." Mohr v. Grant, 153 Wn.2d 812,

822, 108 P.3d 768 (2005).

Mr. Woody fails to prove falsity. Mr. Woody relies solely on his denial of what

he asserts the defendants have falsely said. However, reasonable minds could not

dispute that based on the e-mail correspondence and corroboration of statements

reflected in Battelle's EEO investigation, Mr. Woody acted inappropriately while

employed at Battelle. To defeat a defamation claim, "[a] defendant need only show that

No. 25909-9-III

Woody v. Stapp

the statement is substantially true or that the gist of the story, the portion that carries

the 'sting', is true." Mark v. Seattle Times, 96 Wn.2d 473, 494, 635 P.2d 1081 (1981).

Here, the record supports the proposition that the co-workers' criticized statements

were substantially true.

Moreover, we apply the qualified privilege given intra-corporate communications

for the statements given in Battelle's EEO investigation. Mr. Woody fails to show the

statements were not published in the ordinary course of employment or that they were

made with actual malice. Doe v. Gonzaga Univ., 143 Wn.2d 687, 702-03, 24 P.3d 390

(2001), rev'd on other grounds, 536 U.S. 273, 122 S. Ct. 845, 151 L. Ed. 2d 738 (2002).

When a qualified privilege applies, a plaintiff cannot establish a prima facie case of

defamation unless the plaintiff can show by clear and convincing evidence the

declarant had knowledge of the statement's falsity and he or she recklessly

disregarded this knowledge. Gilman v. MacDonald, 74 Wn. App. 733, 738, 875 P.2d

697 (1994) (citing Lillig v. Becton-Dickinson, 105 Wn.2d 653, 658, 717 P.2d 1371

(1986)). Further, as noted below in our tortious interference analysis, considering Mr.

Woody's at-will employment, he fails to establish either causation or damages.

Accordingly, the trial court properly dismissed Mr. Woody's defamation claim in

summary judgment.

2. Civil Conspiracy. Mr. Woody next claims the co-workers engaged in a civil

conspiracy. To establish a claim for civil conspiracy, Mr. Woody "must prove by clear,

No. 25909-9-III

Woody v. Stapp

cogent, and convincing evidence that (1) two or more people combined to accomplish

an unlawful purpose, or combined to accomplish a lawful purpose by unlawful means;

and (2) the conspirators entered into an agreement to accomplish the conspiracy." All

Star Gas, Inc. v. Bechard, 100 Wn. App. 732, 740, 998 P.2d 367 (2000). But, "'[m]ere

suspicion or commonality of interests is insufficient to prove a conspiracy.'" Id. (quoting

Wilson v. State, 84 Wn. App. 332, 350-51, 929 P. 2d 448 (1996).

Initially, Mr. Woody argues his burden of proof is lowered because when we

review a summary judgment order, we must construe all facts and reasonable

inferences in a light most favorable to the non-moving party. Hubbard, 146 Wn.2d at

707. However, when reviewing a civil case in which the standard of proof is clear,

cogent, and convincing evidence, this court "must view the evidence presented through

the prism of the substantive evidentiary burden." Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 254, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). Thus, we must determine

whether, viewing the evidence in the light most favorable to the nonmoving party, a

rational trier of fact could find that the nonmoving party supported his or her claim with

clear, cogent, and convincing evidence. In re Depend. of C.B., 61 Wn. App. 280, 285,

810 P.2d 518 (1991). To overcome a presumption on summary judgment, the

challenging party must offer evidence establishing a prima facie case supporting the

claim or defense. Cascade Brigade v. Econ. Dev. Bd., 61 Wn. App. 615, 622, 811 P.2d

697 (1991).

No. 25909-9-III

Woody v. Stapp

Here, Mr. Woody merely speculates that the co-workers combined to accomplish

an unlawful purpose or combined to accomplish a lawful purpose by unlawful means,

because at times he saw one or more of them together, sometimes behind closed doors

or overheard them mention his complaint. However, this speculation does not rise to

clear, cogent, and convincing evidence of a conspiracy. Therefore, summary dismissal

of the civil conspiracy claim was appropriate.

3. Tortious Interference. Mr. Woody's interference with a business expectancy

claim requires proof of five elements: (1) a business expectancy, (2) knowledge of the

relationship, (3) intentional interference which results in the termination of the

expectancy, (4) improper purpose or means, and (5) damage. Leingang v. Pierce

County Med. Bureau, Inc., 131 Wn.2d 133, 157, 930 P.2d 288 (1997).

No evidence shows Mr. Woody's former co-workers made any false statements

for the purpose of causing him to be terminated. Battelle's EEO investigation began

because Mr. Woody refused to attend a work meeting where Ms. Irlam would be

present on the grounds she had sexually harassed him. However, the investigation

determined the conversations between Mr. Woody and Ms. Irlam were personal and

"not unwelcome" and not sexually harassing. CP at 83. Thus, Ms. Irlam's statements

did not cause Mr. Woody's employment termination.

Mr. Woody was terminated for "engaging in hostile, intimidating, and

unprofessional behavior," violating Battelle's policies. CP at 84. Mr. Woody does not