On July 14 Robel sustained a workplace injury and filed a workers' compensation claim. In late July, she 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. On August 1, 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!'' [L&I is a reference to the Labor and Industries Dept. of the state of Washington]. They "audibly called her a 'bitch' and 'cunt.'' .
In journal entries for August 2, 3, 10, and 11,Robel wrote that the assistant deli manager, Smith, and others made fun of her, laughed, pointed, and gave her 'dirty looks.' On August 13, Smith and other deli workers would 'stare at {her}, whisper out loud, & laugh, pretend to hurt their backs & laugh.' Robel reported the incidents to her union representative, Banka, who met with the store director on August 16. After the brief meeting, Banka stopped by the deli and told Robel that the store director was convening a meeting of all deli employees on August 19.
At that meeting, the store director warned the employees that future harassment could result in termination. On August 22, deli workers 'laughed and audibly admonished each other not to harass Robel. 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, the assistant manager and other workers 'had a great time making fun of her, pretending to hurt their backs & yelling L&I."
On September 13, 1996, Robel secured a two-week work release from her doctor and gave it to the assistant manager, Smith. 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.'' Robel again contacted Banka, who in turn contacted the store director. On September 28, Wissink terminated one employee. Robel never returned to work at Fred Meyer.
A divided Washington Supreme Court, almost 18 months after hearing oral argument, held those facts sufficient to uphold her claim for all but defamation. Robel v. Roundup Corp. dba Fred Meyer, Inc.(Wash. 12/13/02). In order to do so, the majority said these facts were sufficient to both state a cause of action for disability harassment and to create a fact question as to whether the conduct was outrageous. The Court noted the latter fidning required that the conduct meet the high standard of the Restatement that it is 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." This is the same standard Texas courts require for intentional infliction of emotional distress.
What is most disturbing is how these same facts can be viewed in a different context, that will be all too familiar too employers. As the dissent noted, the real problem here was not the company, but personal animosities between employees:
Linda Robel began work at Fred Meyer in the deli department in December 1995. The following month, Robel and co-worker Tiffany Ware had a falling out over Ware's relationship with Robel's son. Unfortunately for Robel, Ware was a close friend of the deli's assistant manager, Amy Smith. The unhappy result of this situation was that the mutual animosity between Robel and Ware inevitably spilled over into the workplace, subjecting Robel to various verbal taunts and tricks by her co-workers. Robel was distressed by her co-workers' abusive behavior, but that behavior was clearly the result of a personality conflict, not action by or on behalf of her employers. Nor, as Robel claims, was the behavior caused by her back injury or her filing a workers' compensation claim--in fact, much of the offensive behavior predated both of these events. This clash, no matter how distasteful, is insufficient to support a claim for outrage or negligent infliction of emotional distress against Robel's employer. In fact, once the responsible agent of her employer became aware of the situation, action was taken. Ultimately, Robel's 'harasser' was fired. Therefore, I respectfully dissent from the majority's holdings as to disability discrimination, retaliation, and outrage.
In a statement all too many employers can identify with, the dissent cautioned that the truly culpable, in this case the co-employees, should bear the responsibility, not just the 'deep pockets' of the employer.'