Susan Talley, Appellant V. Seattle Public Schools, Respondent

Citations and pin cites are based on the Westlaw online version of the cited material.
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION ONE
SUSAN TALLEY, Individually, ) No. 80934-2-I
)
Appellant, )
)
v. ) UNPUBLISHED OPINION
)
SEATTLE PUBLIC SCHOOLS, )
)
Respondent. )
BOWMAN, J. — Susan Talley sued Seattle Public Schools (SPS), alleging
several forms of discrimination based on her race, age, and gender. She also
claimed negligent and intentional infliction of emotional distress. The trial court
dismissed Talley’s claims on summary judgment. Because Talley failed to
produce specific and material facts sufficient to support her allegations, we
affirm.
FACTS
Talley is an African-American woman over 40 years old. She has been
the administrative secretary at SPS’ Dunlap Elementary School since 2002.
According to Principal Winifred Todd and many of the Dunlap staff, Talley is a
“[h]ighly competent and efficient” administrative secretary who knows her job
well.

No. 80934-2-I/2
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In September 2015, Issa El Hayek joined Dunlap as the assistant principal
to Todd. El Hayek was new to SPS and school administration. On October 30,
2015, SPS’ Southeast Region Executive Director of Schools Kelly Aramaki
announced that El Hayek would become interim principal of Dunlap. Principal
Todd would temporarily serve as interim principal at neighboring Martin Luther
King Jr. Elementary School (MLK) while MLK’s principal was on administrative
leave.
El Hayek started as Dunlap’s interim principal on November 2, 2015. That
morning, he called for a meeting with Talley and office assistant Creigh Haty.
Talley and Haty said they “couldn’t meet” because they were busy checking in
students for the day and there was no one to “cover the phones.” El Hayek
insisted they meet, and eventually, Talley met with him while Haty covered the
office duties. Before the meeting, Talley e-mailed a colleague at another school,
saying, “OMG![1] Winifred [Todd] is gone and we have a little dictator here now
and he is about to get cussed out.”
According to Talley’s account of that first meeting, El Hayek informed her
that Aramaki had “directed” him to make some changes at Dunlap, including
keeping the front door unlocked in the morning and Talley greeting each person
as they arrive. Talley insisted the door remain locked for safety reasons. El
Hayek told Talley that failure to follow the directions could cause her to be
“snatched” from her job. After hearing these “directives,” Talley told El Hayek
1 “Oh my God,” “oh my gosh,” or “oh my goodness.”

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that she would no longer meet with him unless she had a union representative
with her. She declined to speak with him several times throughout the day.
Shortly after her meeting with El Hayek, Talley e-mailed Aramaki to report
that she felt “harassed, undermined and threatened by [El Hayek] and his
actions.” She also e-mailed Todd on November 2, complaining about El Hayek:
This is not going to work with Issa here. He undermines what is put
in place and is sneaky about what he is doing which should involve
the office staff not just him and his agenda. If he makes it through
today it will be by the skin of his teeth!!
The relationship between Talley and El Hayek continued to deteriorate. El
Hayek started questioning Dunlap staff about Talley. He asked instructional
assistant Christopher Glenn if he liked Talley. During meetings designed to get
to know the staff, El Hayek asked if they had any issues with Talley. He told
people that he received daily complaints about Talley and asked staff to report
their complaints.
Glenn saw El Hayek “be aggressive” and give Talley directions, saying,
“ ‘This is your job description and this is what I need you to do and there’s no ifs,
ands, or buts. This is how it’s going to be done.’ ” El Hayek told Glenn, “ ‘I’m the
principal. She needs to know her place.’ ” And, “ ‘I can’t work with Susan . . .
[b]ecause she doesn’t listen.’ ” El Hayek told substitute staff member Evelyn
Beeler that he “needed to control” Talley and that “if he was a woman it would be
easier.”
Talley said that El Hayek would become angry and stand over her with his
fists clenched. According to Talley, this happened “whenever I challenged him,
whenever he would ask something or ask me to do something and I challenged

No. 80934-2-I/4
4
him about why or — or give him reasons why it can’t be done, that’s when he
would get mad.”
Talley complained to her SPS friends about El Hayek’s requests and
refused to open his e-mails because “I thought he wanted something from me.”
She told a Dunlap staff member, “Please don’t ask him anything. He doesn’t
know anything!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!”
Talley communicated her frustrations to Todd many times. In mid-
November, Todd responded to one of Talley’s e-mails, encouraging Talley to
make El Hayek “crazy”:
You just keep working the plan. Send me the e[-]mails and I’ll write
the response. You breathe, write in your notebook and talk with
other people to make him crazy! You do know that . . . when you
don’t have anything to say to him it drives him crazy. He is
obsessed with you. I told you!
Todd also recommended that Talley stop writing the monthly newsletter to “[g]ive
him rope.” At one point, Talley e-mailed Todd that El Hayek “is about to crack!”
On January 7, 2016, Talley filed an SPS harassment, intimidation, and
bullying (HIB) complaint against El Hayek. She alleged that El Hayek made the
workplace “uncomfortable and unsafe” for her, citing several disagreements with
his policies and their interpersonal dynamic. She made no allegations of
discriminatory conduct in the complaint.
Soon after Talley filed the HIB complaint, El Hayek issued Talley two
letters of counseling, both dated January 13, 2016. One letter explained that its
purpose “is to inform you that you must follow my directions as a supervisor.”

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The letter states:
Because several of my instructions to you have been meet [sic]
with resistance or perplexity, I am putting my expectations down in
writing. In the future, any failure to follow my direction will result in
progressive discipline being imposed.
El Hayek then outlined his three expectations that Talley (1) receive his written
approval for nonemergency communications with families, (2) provide him with
advance notice of leave for a “personal emergency or personal illness,” and (3)
obtain his permission to use the school intercom for nonemergency purposes.
The second counseling letter accused Talley of using inappropriate language in
the office and provided “a formal reminder” of SPS policy that she could not use
profane language at school.
Talley wrote responses to the letters denying the allegations, accusing El
Hayek of using profanity, and complaining about his micromanagement. She
hoped he could “find a balance between giving directive, micromanaging and
undermining me in order for me to effectively complete my job responsibilities.”
On February 2, 2016, Talley filed a second HIB complaint against El
Hayek with SPS. Talley added allegations of discrimination based on race,
gender, and age.
Ten days later on February 12, an incident occurred at Dunlap involving El
Hayek and Talley’s husband Ben Lawton, a teacher at MLK. Because Talley
claimed she was afraid of El Hayek, Lawton sometimes walked Talley to her car
after school. On that day, Lawton and El Hayek exchanged words in the Dunlap
parking lot in front of several employees. El Hayek called SPS security and the
police to report that Lawton had threatened and harassed him. SPS immediately

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placed Talley and Lawton on paid administrative leave pending an investigation
into the allegations.
El Hayek petitioned for a restraining order against Lawton. At the hearing,
Dunlap instructional assistants Glenn and Joseph Phillips testified that El Hayek
was the aggressor and that Lawton never threatened El Hayek. Phillips, who
was “new” and “trying to graduate to become a teacher,” also testified that he felt
pressured by El Hayek to testify in El Hayek’s favor. But Phillips refused “to lie.”
Phillips said El Hayek gave him a “horrible” performance review for that school
year.2
SPS eventually determined that Talley and Lawton’s actions on February
12, 2016 did not warrant administrative leave or discipline. Lawton returned to
teaching at MLK. Talley agreed to remain on paid leave for the rest of the school
year and El Hayek withdrew his antiharassment action.3
An outside investigation into Talley’s HIB complaints concluded on May
12, 2016 that El Hayek neither harassed nor discriminated against Talley.
Instead, it determined that many of Talley’s complaints were “objectively
reasonable acts of a principal.” And the “hostile dynamic” between the two was
attributable to “personality conflicts, misunderstandings, and poor
communication.”
In September 2018, Talley filed a complaint against SPS, alleging hostile
work environment, disparate treatment, and disparate impact. She also alleged
2 El Hayek later removed the “poor” rating.
3 El Hayek was leaving Dunlap at the end of the school year when Todd returned as
principal. SPS also agreed to remove the two letters of counseling from Talley’s personnel file.

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she suffered adverse employment consequences in retaliation for reporting El
Hayek’s race, age, and gender discrimination. Finally, Talley claimed both
negligent and intentional infliction of emotional distress.
SPS moved for summary judgment dismissal. The trial court found that
Talley “failed to establish specific and material facts to support each element of
her prima facie case” and “failed to offer any substantial evidence to establish the
existence of a genuine issue of material fact.” The court granted summary
judgment and dismissed Talley’s claims.
Talley appeals.
ANALYSIS
Talley argues the trial court erred in dismissing her claims on summary
judgment. We review orders on summary judgment de novo. Kim v. Lakeside
Adult Family Home, 185 Wn.2d 532, 547, 374 P.3d 121 (2016). Summary
judgment is appropriate when there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. Folsom v. Burger King,
135 Wn.2d 658, 663, 958 P.2d 301 (1998) (citing CR 56(c)). We consider the
evidence and reasonable inferences from it in the light most favorable to the
nonmoving party. Kim, 185 Wn.2d at 547.
To defeat summary judgment, the opposing party must set forth specific
facts showing a genuine issue of material fact and may not rely on allegations or
self-serving statements. Newton Ins. Agency & Brokerage, Inc. v. Caledonian
Ins. Grp., Inc., 114 Wn. App. 151, 157, 52 P.3d 30 (2002). If the nonmoving
party “fails to make a showing sufficient to establish the existence of an element

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essential to his case,” then the trial court should grant summary judgment.
Atherton Condo. Apt.-Owners Ass’n Bd. of Dirs. v. Blume Dev. Co., 115 Wn.2d
506, 516, 799 P.2d 250 (1990).
Discrimination Claims
In her complaint, Talley raised several claims for discrimination based on
age, race, and gender under Washington’s Law Against Discrimination, chapter
49.60 RCW.4 She alleged SPS “unlawfully and tortiously engaged in [a] severe
and pervasive pattern of discriminatory practices” against her. Talley bears the
burden of establishing a prima facie case of discrimination and “may rely on
circumstantial, indirect, and inferential evidence to establish discriminatory
action.” Mikkelsen v. Pub. Util. Dist. No. 1 of Kittitas County, 189 Wn.2d 516,
526-27, 404 P.3d 464 (2017).
To overcome summary judgment on a discrimination claim, “a plaintiff
needs to show only that a reasonable jury could find that the plaintiff’s protected
trait was a substantial factor motivating the employer’s adverse actions.”
Scrivener v. Clark College, 181 Wn.2d 439, 445, 324 P.3d 541 (2014). To
accomplish this, the employee “must do more than express an opinion or make
conclusory statements. The employee has the burden of establishing specific
and material facts to support each element of his or her prima facie case.” Hiatt
v. Walker Chevrolet Co., 120 Wn.2d 57, 66, 837 P.2d 618 (1992).5 If the plaintiff
fails to meet this burden, the defendant is entitled to judgment as a matter of law.
4 “It 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,
sexual orientation, race, creed, color, [or] national origin.” RCW 49.60.180(3).
5 Footnote omitted.

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Kirby v. City of Tacoma, 124 Wn. App. 454, 464, 98 P.3d 827 (2004). Summary
judgment “is seldom appropriate” in discrimination cases “because of the
difficulty of proving a discriminatory motivation.” Scrivener, 181 Wn.2d at 445.
A. Hostile Work Environment
Talley claims the trial court erred in dismissing her hostile work
environment claim because she presented sufficient evidence to show that she
was subject to a “toxic, unprofessional environment with respect to race, gender
and/or age harassment.” We disagree.
To establish a claim for hostile work environment, an employee must show
that “the harassment (1) was unwelcome, (2) was because of a protected
characteristic,[6] (3) affected the terms or conditions of employment, and (4) is
imputable to the employer.” Blackburn v. Dep’t of Soc. & Health Servs., 186
Wn.2d 250, 260, 375 P.3d 1076 (2016). The harassment must be pervasive
enough to “alter the conditions of employment and create an abusive working
environment.” Glasgow v. Ga.-Pac. Corp., 103 Wn.2d 401, 406, 693 P.2d 708
(1985). In assessing a claim for hostile work environment, we consider
the frequency and severity of the discriminatory conduct; whether it
is physically threatening or humiliating, or a mere offensive
utterance; and whether it unreasonably interferes with an
employee’s work performance. Casual, isolated or trivial
manifestations of a discriminatory environment do not affect the
terms or conditions of employment to a sufficiently significant
degree to violate the law.
Washington v. Boeing Co., 105 Wn. App. 1, 10, 19 P.3d 1041 (2000).7
6 The parties agree that Talley is a member of several protected classes.
7 Footnote omitted.

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Talley cites many examples of El Hayek’s conduct that she claims amount
to a hostile work environment. She says:
(1) El Hayek talked down to her, (2) used a rude and disrespectful
tone with her, (3) attacked her with false write[-]ups, (4) “required”
her to call him on his cellphone or e[-]mail him when she was
absent from work, (5) forbade her from using the school intercom
without getting prior approval from him, moved his desk to oversee
her every move, (6) El Hayek went around the building asking staff
if they had problems with plaintiff and if so to write them up, (7) he
went to other staff members and talked about Talley in a negative
way, (8) he tried to find anything to attack her job performance, (9)
threatened plaintiff that if she did not do what he has directed she
would face progressive discipline, (10) told Evelyn Beeler that if he
was a woman he could control plaintiff, (11) asked staff if they were
afraid of plaintiff, (12) asked plaintiff on more than one occasion to
“yell and cuss him out” if he does something she did not like and
(13) falsely accused plaintiff of cussing.
Assuming Talley’s allegations are true, she offers no evidence that any of
El Hayek’s actions or statements occurred because of her race, age, or gender.
Rather, she argues that El Hayek implied discriminatory motivation. For
example, Talley claims that El Hayek’s accusation about “cussing” was racially
motivated because “[w]hite people[8] in general think that’s what black women do
when they get upset.” “They get crazy and start yelling and screaming and
cussing.” But Talley has the burden to produce specific and material facts to
support her allegations. Her conclusory statements cannot establish a prima
facie case for hostile work environment.
8 While El Hayek is not Caucasian, Talley asserts that because he “grew up in a white
family,” he “thinks he’s white, he thinks he’s superior [to] a black” person.

No. 80934-2-I/11
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B. Disparate Treatment
Talley also argues she satisfied her burden under the summary judgment
standard to show that she experienced disparate treatment because of her race,
age, and gender. We disagree.
A prima facie case of disparate treatment requires a showing that the
plaintiff (1) is in a protected class, (2) suffered an adverse employment action, (3)
was doing satisfactory work, and (4) was treated differently from someone not in
the protected class. Kirby, 124 Wn. App. at 468. The adverse employment
action must be “tangible,” meaning “ ‘ a significant change in employment status,
such as hiring, firing, failing to promote, reassignment with significantly different
responsibilities, or a decision causing a significant change in benefits.’ ” Marin v.
King County, 194 Wn. App. 795, 808, 378 P.3d 203 (2016) (quoting Burlington
Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S. Ct. 2257, 141 L. Ed. 2d 633
(1998)). It must be “more than an ‘inconvenience or alteration of job
responsibilities.’ ” Kirby, 124 Wn. App. at 465 (quoting DeGuiseppe v. Vill. of
Bellwood, 68 F.3d 187, 192 (7th Cir. 1995)). And the adverse employment action
must occur “under circumstances that raise a reasonable inference of unlawful
discrimination.” Marin, 194 Wn. App. at 808. A hostile work environment may
amount to an adverse employment action. Harrell v. Dep’t of Soc. & Health
Servs., 170 Wn. App. 386, 398, 285 P.3d 159 (2012).
If an employee establishes a prima facie case of disparate treatment, the
burden shifts to the employer to show a legitimate, nondiscriminatory reason for
the adverse employment action. Marin, 194 Wn. App. at 808. The burden then

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shifts back to the employee to show that the employer’s reasons for the adverse
action are pretextual, meaning they “(1) have no basis in fact; (2) were not really
motivating factors for the decision; or (3) were not motivating factors in
employment decisions for other employees in the same circumstances.” Kirby,
124 Wn. App. at 467.
Talley does not show that she suffered an adverse employment action. El
Hayek issued Talley two letters of counseling. Letters of counseling explain
something that an administrator believes the employee did incorrectly or could
have done better and to improve communication. Talley testified that the letters
themselves were not disciplinary or even “a formal reprimand,” and she admits
that she did not “receive any discipline” as a result of the letters.
It is true that SPS placed Talley on paid administrative leave after El
Hayek reported the incident in the parking lot with her husband. But Talley does
not provide meaningful legal analysis or cite authority supporting her contention
that paid administrative leave may be an adverse employment action.9 Nor, as
noted above, does Talley establish a hostile work environment that might
constitute an adverse employment action. Because Talley does not show a
“tangible” adverse employment action, she fails to establish a prima facie case of
disparate treatment. Marin, 194 Wn. App. at 808.
Even if Talley could establish an adverse employment action, the
evidence does not support “a reasonable inference of unlawful discrimination.”
Marin, 194 Wn. App. at 808. Talley acknowledges that other African-American
9 We decline to review inadequately briefed arguments. RAP 10.3(a)(6); Norcon
Builders, LLC v. GMP Homes VG, LLC, 161 Wn. App 474, 486, 254 P.3d 835 (2011).

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women over 40 years old who worked at Dunlap experienced much better
treatment from El Hayek. And even Talley attributes their favored treatment to
their ability to get along with El Hayek. Talley testified that “they all listened to
him” and “did what he wanted [them] to do”; the “people who decided to listen to
him or back him, everything was fine, they could do whatever they want in the
school.” The “people” to whom Talley referred consisted of a group of at least
five female employees, including three African-American women over 60 and 70
years old.
And unlike those who had a good working relationship with El Hayek,
Talley refused to cooperate with him and even sought to undermine him.
According to Talley, El Hayek
wanted to be the top person at the school. He didn’t want anyone
else to go to anyone but him. He wanted to be the leader.
He wanted to be the person who controls everyone below
them. He wanted to control me, and because he figured he
couldn’t, that’s when he started harassing and trying to intimidate
me.
Talley claims that El Hayek treated her poorly “[b]ecause as a black woman, I
can’t challenge him. A black woman isn’t supposed to challenge him. A woman
my age wasn’t supposed to know more than him. I shouldn’t have been able to
tell him how to do his job.” But the evidence does not support these conclusory
statements and they cannot defeat summary judgment. See Hiatt, 120 Wn.2d at
66. The court properly dismissed Talley’s disparate treatment claim on summary
judgment.

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C. Retaliation
Talley argues that SPS issued her two “reprimands” and placed her on
paid administrative leave as retaliation for filing HIB and discrimination
complaints with SPS. According to Talley, she “was a victim of extreme
retaliation or other adverse employment actions that simply cannot be otherwise
explained without the existence of retaliatory intent.”
An employer may not retaliate against an employee for filing a
discrimination claim against the employer. Milligan v. Thompson, 110 Wn. App.
628, 638, 42 P.3d 418 (2002). A prima facie case of retaliation requires Talley
show that (1) she engaged in statutorily protected activity, (2) SPS took an
adverse employment action against her, and (3) there is a causal link between
her activity and SPS’s adverse action. Francom v. Costco Wholesale Corp., 98
Wn. App. 845, 861-62, 991 P.2d 1182 (2000). Retaliation must be a “substantial
factor” behind the adverse employment action. Allison v. Hous. Auth. of Seattle,
118 Wn.2d 79, 95, 821 P.2d 34 (1991). If Talley establishes a prima facie case
for retaliation, the burden shifts to SPS to present evidence of a nonretaliatory
reason for the adverse employment action. Milligan, 110 Wn. App. at 638.
Talley must then counter with evidence that this reason is pretextual. Milligan,
110 Wn. App. at 638.
As discussed above, Talley has not established that the letters of
counseling and administrative leave amount to adverse employment actions.
None of these actions led to a change of employment status or discipline.
Moreover, even if we considered administrative leave an adverse employment

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action, Talley cannot prove a causal link between the filing of her complaints and
imposition of the paid administrative leave, which stemmed from the incident in
the parking lot. Talley admits that the newly appointed SPS assistant
superintendent who placed her on leave “had no idea” about her discrimination
and harassment complaints at the time.10 Talley fails to show a prima facie case
for retaliation.
Intentional Infliction of Emotional Distress
Talley claims intentional infliction of emotional distress because El
Hayek’s “campaign of harassment,” including “false write[-]ups, false allegations
against the subordinate employee’s husband, and the litany of Mr. El Hayek’s
actions against [her,] went well beyond the norm, beyond ‘the pale of human
decency.’ ” She contends that “falsifying a story of violence against the plaintiff
and her husband, getting her placed on administrative leave and then
intimidating witnesses to support [El Hayek’s] false claims is outrageous.”11
A claim for intentional infliction of emotional distress requires proof of “ ‘(1)
extreme and outrageous conduct, (2) intentional or reckless infliction of emotional
distress, and (3) actual result to plaintiff of severe emotional distress.’ ” Trujillo v.
Nw. Tr. Servs. Inc., 183 Wn.2d 820, 840, 355 P.3d 1100 (2015)12 (quoting Lyons
v. U.S. Bank Nat’l Ass’n, 181 Wn.2d 775, 792, 336 P.3d 1142 (2014)). Summary
judgment is appropriate only if no “ ‘reasonable minds could differ on whether the
10 The assistant superintendent’s first day was February 1, 2016, one day before Talley
filed her second HIB complaint against El Hayek that included discrimination allegations for the
first time.
11 “ ‘Outrage’ and ‘intentional infliction of emotional distress’ are synonyms for the same
tort.” Kloepfel v. Bokor, 149 Wn.2d 193 n.1, 195, 66 P.3d 630 (2003).
12 Internal quotation marks omitted.

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conduct has been sufficiently extreme and outrageous to result in liability.’ ”
Citoli v. City of Seattle, 115 Wn. App. 459, 495, 61 P.3d 1165 (2002) (quoting
Spurrell v. Bloch, 40 Wn. App. 854, 862, 701 P.2d 529 (1985)).
Conduct sufficient to incur liability for intentional infliction of emotional
distress must be so extreme and outrageous as to go beyond all possible bounds
of decency. Kloepfel, 149 Wn.2d at 196. Mere insults, indignities, and
annoyances do not rise to the level of outrageousness required for liability.
Kloepfel, 149 Wn.2d at 196. The standard for intentional inflection of emotional
distress is “very high (by which we mean that the conduct supporting the claim
must be appalling low).” Robel v. Roundup Corp., 148 Wn.2d 35, 51, 59 P.3d
611 (2002). But the relationship between the parties is important when
considering whether liability should be imposed. Robel, 148 Wn.2d at 52.
“ ‘[A]dded 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.’ ” Robel, 148 Wn.2d at 5213 (quoting Contreras v. Crown
Zellerbach Corp., 88 Wn.2d 735, 741, 565 P.2d 1173 (1977)).
In Robel, the plaintiff hurt her back at work. Robel, 148 Wn.2d at 40.
After filing a workers’ compensation claim, the plaintiff became the target of at
least one supervisor and fellow employees. Two coworkers laughed at the
plaintiff and “ ‘acted out a slip and fall,’ as ‘one of them yelled, “Oh, I hurt my
back, L & I, L& I!” ’ ”14 Robel, 148 Wn.2d at 40. They called the plaintiff a
13 Second alteration in original.
14 An injured worker files their claim for compensation with the Department of Labor and
Industries (L&I).

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“ ‘bitch’ ” and a “ ‘cunt.’ ” Robel, 148 Wn.2d at 40. They also told customers that
the plaintiff was a liar. Several coworkers stared at her, gave her “ ‘dirty looks,’ ”
and whispered about her out loud. Robel, 148 Wn.2d at 40. After the plaintiff
received a two-week release from her doctor, a supervisor commented to other
employees, “ ‘ “Can you believe it, Linda’s gonna sit on her big ass and get
paid.” ’ ” Robel, 148 Wn.2d at 41. Our Supreme Court concluded that the
conduct in the plaintiff’s workplace was “so vulgar” that “reasonable minds could
find the complained-of conduct outrageous.” Robel, 148 Wn.2d at 52, 54-55.
By contrast, in Dicomes v. State, 113 Wn.2d 612, 630, 782 P.2d 1002
(1989), the plaintiff alleged her employer prepared a false report to embarrass,
humiliate, and terminate her from her job. She argued that her discharge
“constituted outrageous conduct because it allegedly showed her to be an
incompetent and disloyal employee.” Dicomes, 113 Wn.2d at 630. Our Supreme
Court concluded that “[a]t worst, plaintiff’s allegations amount to a showing of bad
faith. And even if they rose to the level of malice, . . . no claim of outrage could
be stated.” Dicomes, 113 Wn.2d at 631.
Unlike the plaintiff in Robel, Talley’s claimed insults, indignities, and
annoyances resulting from the strife between her and El Hayek were not so
vulgar as to rise to the level of outrageous behavior. See Kloepfel, 149 Wn.2d at
196. And as in Dicomes, Talley’s claim that El Hayek’s false allegations led to
her administrative leave—even if they rose to the level of malice—do not support
a claim of outrage.

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Negligent Infliction of Emotional Distress
Talley also claims negligent infliction of emotional distress because El
Hayek “expressed his discriminatory intent with knowledge that the harassment
and retaliation was impacting the plaintiff’s health and causing ill effects.”
Negligent infliction of emotional distress is a tort requiring evidence of
duty, breach, proximate cause, and injury. Bishop v. State, 77 Wn. App. 228,
233, 889 P.2d 959 (1995). A claim for negligent infliction of emotional distress
can arise in the employment setting. Chea v. Men’s Wearhouse, Inc., 85 Wn.
App. 405, 412, 932 P.2d 1216 (1997). But courts have noted that “[t]he
workplace is not stress free.” Snyder v. Med. Serv. Corp. of E. Wash., 98 Wn.
App. 315, 324, 988 P.2d 1023 (1999), aff’d, 145 Wn.2d 233, 35 P.3d 1158
(2001). As a result, “absent a statutory or public policy mandate, employers do
not owe employees a duty to use reasonable care to avoid the inadvertent
infliction of emotional distress when responding to workplace disputes.” Bishop,
77 Wn. App. at 234-35. So to establish a prima facie claim of negligent infliction
of emotional distress in the workplace, Talley must show
(1) that her employer’s negligent acts injured her, (2) the acts were
not a workplace dispute or employee discipline, (3) the injury is not
covered by the Industrial Insurance Act, [Title 51 RCW,] and (4) the
dominant feature of the negligence claim was the emotional injury.
Snyder, 98 Wn. App. at 323.
Here, Talley and El Hayek had a contentious and dysfunctional working
relationship. El Hayek wanted Talley to follow his directives as interim principal
and Talley questioned his actions and decisions. Indeed, the record shows that
from the very beginning of El Hayek’s first day as interim principal, Talley actively

No. 80934-2-I/19
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opposed El Hayek’s instructions and worked with Todd and other Dunlap staff to
undermine his authority. Talley has not shown that El Hayek’s alleged acts
amounted to more than a workplace dispute or efforts at employee management.
The trial court did not err in dismissing Talley’s negligent infliction of emotional
distress claim.
Because Talley fails to produce specific and material facts sufficient to
support her allegations of discrimination and emotional distress, we affirm the
trial court’s summary judgment dismissal of her claims.
WE CONCUR: