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Court of Appeals Division II
State of Washington

Opinion Information Sheet

			

    IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

                                       DIVISION  II

LEANNA SHIPP,                                                    No. 40647-1-II
              Plaintiff/Appellant,

       v.

MASON GENERAL HOSPITAL
FOUNDATION, a Washington
Corporation, doing business under
Unified Business Identifier #601-336-014,
and TREASURES THRIFT STORE, a
commercial business venture wholly
operated under the MASON GENERAL
HOSPITAL FOUNDATION,                                       UNPUBLISHED OPINION

              Defendants/Respondents.

       Worswick, J.  --  Leanna Shipp worked for the Mason General Hospital Foundation (the 

Foundation) as the manager of its thrift shop until the Foundation terminated her claiming she had 

gossiped and disobeyed instructions.  Shipp sued the Foundation alleging outrage and retaliation,

but the trial court granted summary judgment in favor of the Foundation.  Shipp appeals, arguing 

that disputed facts show (1) that the manner of her termination was outrageous and (2) the 

Foundation terminated her in retaliation for filing a workers' compensation claim.  Because Shipp 

did not allege facts egregious enough to establish outrage, we affirm summary judgment dismissal 

of the outrage claim.  However, because Shipp produced evidence raising a question of material 

fact on the reason for her termination, we reverse and remand for further proceedings on the 

retaliation claim. 

40647-1-II

                                            FACTS1

       The Foundation is a Washington non-profit corporation that operates Treasures Thrift 

Stores (Treasures) as a fund raising activity.  The Foundation employed Leanna Shipp as the full-

time manager of Treasures from January 2001 until it terminated her on January 21, 2004.2 In 

addition to her managerial duties at Treasures, Shipp's position required her to perform "constant 

and repetitive lifting, sorting, arranging, repairing, cleaning, and other hands-on work." Clerk's 

Papers (CP) at 70.  In performing these manual duties, Shipp noticed increasing difficulty with her 

hands and wrist pain, which she reported to her supervisors on at least three occasions between 

2001 and 2004.  Based on this increased pain, in December 2003, Shipp's doctor referred her to a 

specialist for a nerve conduction study.

       On January 16, 2004, Shipp met with her then-supervisor Sara Watkins and Foundation 

board members Beth Johnston3 and Leigh Bacharach.  During this meeting, Shipp learned that 

Beth was her new supervisor.  Shipp asserts that during this meeting, Beth told Shipp that she did 

not want Shipp to file "an L&I claim" because doing so would make her fellow employees pay for 

her medical costs and, thus, hurt Treasures.  CP at 73.  Shipp claims that Beth suggested Shipp 

1 Because Shipp appeals an order granting the Foundation's motion for summary judgment, we 
portray the facts in the light most favorable to her.  Jones v. State Dep't of Health, 170 Wn.2d 
338, 342 n.1, 242 P.3d 825 (2010).

2 Effective January 1, 2003, Mason General Hospital transferred oversight of Treasures to the 
Foundation.  For this reason, the Foundation cites Shipp's dates of employment as January 1, 
2003 to January 21, 2004.

3 Because this case involves two people with the same last name, Beth Johnston and Gail 
Johnston, we refer to each by their first name for clarity, intending no disrespect.

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blame her injury on a former employer so that Treasures would not be responsible for the entire 

cost of Shipp's treatment.  Beth also requested Shipp sign a release allowing Beth access to her 

medical records.  Finally, Beth directed Shipp to contact her immediately after Shipp's January 19 

doctor's appointment.  In response, Shipp said that she would follow her doctor's 

recommendation and, although she did not sign the medical release, Shipp did agree to contact 

Beth immediately after her doctor's appointment.  Also during this meeting, Beth "gave [Shipp] a 

positive evaluation" because the Treasures store "looked very good." CP at 74.

       On January 19, Shipp met with her doctor and learned that she had moderate to severe

carpal tunnel syndrome in both hands.  Shipp called Beth to report the nerve study results and also 

to inform Beth that Shipp and her doctor had completed the requisite paperwork for a workers'

compensation claim.4  Just two days later, on January 21, Beth terminated Shipp's employment at

Treasures.  Beth and Bacharach informed Shipp that she had to leave Treasures immediately,

escorted her through the store to Shipp's office in view of other employees, escorted her out the 

back door, and slammed the door while telling Shipp she could never return.  

       Beth memorialized Treasures's reasons for terminating Shipp in a January 21 disciplinary 

action form. In this form, Beth stated that she terminated Shipp for gossiping about Treasures 

despite verbal warnings not to do so.  Specifically, Beth reported that she terminated Shipp (1) for 

dishonest responses to questions on January 16 about whether Shipp told fellow Treasures 

employee Jane Hoyos that Shipp would likely be fired, and (2) for Shipp violating a January 16 

4Solely for purposes of its motion for summary judgment below and for this appeal, the 
Foundation does not dispute that Shipp notified her supervisor on January 19 that she would be
filing a workers' compensation claim.

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40647-1-II

warning not to engage in gossip about Treasures when she spoke with Hoyos on the phone on 

January 20.  Shipp reported that during the January 20 conversation between Hoyos and Shipp, 

Shipp replied, "I'm still here," in response to Hoyos's observation that "she didn't get fired." CP 

at 76.  Shipp denies engaging in gossip.  Shipp also denies that Beth warned her not to gossip 

when they met on January 16.  Instead, Shipp asserts that she and Beth never discussed Shipp's 

gossiping.

       On January 19, 2007, Shipp sued the Foundation in Mason County for retaliatory 

termination and outrage.  Mason County Superior Court dismissed the case based on insufficient 

service of process; we reversed and remanded in an unpublished opinion.5  After remand, the 

Foundation moved for summary judgment.  Thereafter, Shipp and the Foundation each filed an 

affidavit of prejudice and the Foundation successfully moved to transfer the case to Thurston 

County.

       In opposition to the Foundation's motion for summary judgment on her retaliation claim, 

Shipp presented declarations of Gail Johnston and Dawn Pannell who averred that Beth gave 

inconsistent justifications for terminating Shipp.  Gail stated that Foundation board member Karen 

Hilburn told her that Beth said she terminated Shipp because Shipp was unable to perform her job 

duties.  Gail further stated that she overheard the January 20 phone call between Shipp and Hoyos

that Beth claimed was the conversation Shipp engaged in gossip about Treasures.  But Gail 

averred that Shipp did not engage in gossip with Hoyos during that conversation.  Dawn Pannell 

stated by declaration that she met with Beth regarding possible transfer of operating 

5 Shipp v. Mason General Hosp. Foundation, noted at 147 Wn. App. 1023 (2008).

                                               4 

40647-1-II

responsibilities for Treasures from the Foundation to the local Kiwanis Club.  Pannell further 

asserted that, "to the best of [her] recollection," Beth told her she terminated Shipp because 

Treasures was unprofitable, despite Pannell's knowledge that Treasures was "making money."  

CP at 68.

       In a self-prepared "employment timeline" appended to her declaration, Shipp wrote that in 

September 2003 -- four months before she notified Treasures of her intent to file a workers'

compensation claim -- she believed her job was in jeopardy.  CP at 82-83.  Specifically, Shipp 

wrote in her employment timeline that she met with Watkins and Beth twice in September 2003

regarding timekeeping, Shipp's job description, Watkins's and Beth's evaluation of Shipp's 

performance, and Shipp's own comments about that evaluation.  Further, Shipp wrote that Beth

stated that she would likely fire Shipp based on Shipp's comments, but that a final decision was

pending a follow-up meeting in December.  Shipp again met with Watkins and Beth on December 

17, and learned that the Foundation had not yet made a decision about Shipp's continued 

employment; rather, they would meet with Shipp again in January.  The Foundation's December 

18 board meeting minutes confirm that the board was in the process of evaluating all Treasures 

employees.

       The Foundation moved to strike Shipp's responses to its summary judgment motion, 

arguing that the responses were untimely, included declarations from persons not disclosed as 

witnesses, and contained extensive hearsay statements.  Also, Shipp moved to strike Beth's 

declaration as inadmissible hearsay.  The trial court heard arguments on the motions to strike and 

the motion for summary judgment the same day.  At this hearing, the trial court denied Shipp's 

                                               5 

40647-1-II

motion to strike.  However, the trial court did not specifically address the Foundation's hearsay

objections, nor did it address the Foundation's motion to strike.  Further, although the trial court 

granted summary judgment in favor of the Foundation on both of Shipp's claims, it stated that it 

was not granting summary judgment as a sanction for Shipp's noncompliance with discovery and 

witness disclosure deadlines.  Rather, the trial court found that lesser sanctions were available, 

including potentially striking witnesses if the case ever reached trial.

       Almost one month later, the trial court entered a written order granting summary 

judgment.  The trial court considered all evidence presented, including the declarations Shipp 

submitted.  Shipp timely appealed.

                                          ANALYSIS

                                     I.  Standard of Review

       We review orders for summary judgment de novo, performing the same inquiry as the trial 

court.  Aba Sheikh v. Choe, 156 Wn.2d 441, 447, 128 P.3d 574 (2006).  Summary judgment is

appropriate only if there are no genuine issues of material fact and the moving party is entitled to 

judgment as a matter of law.  CR 56(c).  The moving party bears the burden of showing there is

no issue of material fact.  Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989).  

We construe all facts and reasonable inferences in the light most favorable to the nonmoving 

party.  Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999).

                                II.  Admissibility of Declarations

       As an initial matter, the Foundation argues that the trial court erred in considering Shipp's 

responses to its summary judgment motion because they were untimely, included declarations by 

                                               6 

40647-1-II

undisclosed witnesses, and contained inadmissible hearsay.  We disagree.

       A trial court may consider only admissible evidence in ruling on summary judgment 

motions.  Allen v. Asbestos Corp., 138 Wn. App. 564, 570, 157 P.3d 406 (2007).  Evidence of 

contradictory out-of-court statements by a witness is admissible to impeach the credibility of that 

witness without raising a hearsay problem because the statements are not offered for their truth.  

Fraser v. Beutel, 56 Wn. App. 725, 738, 785 P.2d 470 (1990).  Because the statements contained 

in the declarations of Shipp and Pannell show that Beth gave inconsistent justifications for 

terminating Shipp, they were admissible for impeachment purposes.6 Thus, the evidence the trial 

court considered on summary judgment was appropriate.

       Because the trial court considered evidence that was admissible for impeachment purposes 

and because the Foundation may renew its objections on remand, it was not materially prejudiced.  

Thus, we disagree with the Foundation's evidentiary argument.

                                          III.  Outrage

       Shipp argues that she established a question of fact as to whether the Foundation engaged 

in outrageous conduct when Beth terminated her employment, terminated her medical benefits, 

escorted her through the store and out the back door in front of employees whom she previously 

supervised, banned her from ever returning to Treasures, and slammed the door.  Shipp also 

argues that Beth's inconsistent explanations to third parties on the cause of her termination were

6 Shipp also presented a declaration from Gail stating that Hilburn said Beth had said Treasures 
terminated Shipp because Shipp was unable to perform her job duties.  Even without considering 
Gail's declaration, which Shipp may have difficulty admitting on remand because of possible 
multiple hearsay, we find that the trial court considered sufficient admissible evidence in making 
its ruling. 

                                               7 

40647-1-II

outrageous.  Finally, Shipp argues that this conduct was not a "mere escort from the workplace"

termination case because Shipp's status as a "crippled" retail manager in need of medical 

treatment rendered the mode of her termination outrageous.  Reply Br. of Appellant at 6-7; 14.

The Foundation counters that, even if true, these facts do not approach the level required to 

establish the tort of outrage.  We agree with the Foundation.

       To prevail on a claim for outrage, a plaintiff must prove (1) extreme and outrageous 

conduct, (2) intentional or reckless infliction of emotional distress, and (3) resulting severe 

emotional distress on the part of the plaintiff.  Robel v. Roundup Corp., 148 Wn.2d 35, 51, 59 

P.3d 611 (2002) (quoting Reid v. Pierce County, 136 Wn.2d 195, 202, 961 P.2d 333 (1998)). 

Conduct must go "beyond all possible bounds of decency, and . . . be regarded as atrocious, and 

utterly intolerable in a civilized community" to satisfy the first element of outrage. Grimsby v. 

Samson, 85 Wn.2d 52, 59, 530 P.2d 291 (1975) (quoting Restatement (Second) of Torts, § 46 

cmt. d).  Outrageous conduct is conduct which would cause an average member of the

community to exclaim "Outrageous!" upon hearing a recitation of the facts.  Reid, 136 Wn.2d 195

at 201-02.  Liability "'does not extend to mere insults, indignities, threats, annoyances, petty 

oppressions, or other trivialities.'"  Kloepfel v. Bokor, 149 Wn.2d 192, 196, 66 P.3d 630 (2003)

(quoting Grimsby, 85 Wn.2d at 59).  Members of society must be necessarily hardened to a 

certain degree of unkindness and lack of consideration.  Kloepfel, 149 Wn.2d at 196 (quoting 

Grimsby, 85 Wn.2d at 59).

       Although the elements of outrage are generally factual questions for the jury, in ruling on a 

motion for summary judgment, the trial court must make a threshold determination on whether 

                                               8 

40647-1-II

reasonable minds could differ on whether the conduct was sufficiently extreme and outrageous to 

result in liability.  Robel, 148 Wn.2d at 51.  In making this threshold determination, the 

relationship between the parties is a significant factor for the court.  Robel, 148 Wn.2d at 52.  

While terminating an employment relationship is not outrageous in itself, the manner in which a 

termination is effectuated may be outrageous.  Dicomes v. State, 113 Wn.2d 612, 630, 782 P.2d 

1002 (1989).

       Shipp relies on Corey v. Pierce County, 154 Wn. App. 752, 225 P.3d 367 (2010), to 

support her argument that the Foundation terminated her in an outrageous manner.  But her

reliance is misplaced because Corey involved much more egregious circumstances.  In Corey, the 

county prosecutor gave his third highest ranking deputy prosecutor mere moments to elect to

resign or else face termination.  154 Wn. App. at 757-58.  After Corey elected to resign, the

county prosecutor then publicly accused her of criminal activity and implied that she mishandled 

public funds even though he knew the allegations were meritless. Corey, 154 Wn. App. at 758-

764.  The court held that the public, false accusations against Corey went beyond "mere insults 

and indignities." Corey, 154 Wn. App. at 764.  Instead, because Corey was a veteran public 

servant and prosecutor, the court held that the prosecutor's false allegations of criminal activity 

were particularly loathsome and sufficient to support her outrage claim.  Corey, 154 Wn. App. at 

764.

       Here, after Shipp's termination, Beth made inconsistent statements to a community 

member and to a Foundation board member about the causes for Shipp's termination. Like 

Corey, Shipp's former supervisor made statements to third parties about the causes of her 

                                               9 

40647-1-II

termination.  But unlike Corey, Beth's statements were limited in scope because they were made 

only to Foundation board member Karen Hilburn and city commissioner Dawn Pannell, not to the 

local paper.  Also unlike Corey, Beth did not state that she terminated Shipp for criminal activity; 

rather, she stated that she terminated Shipp either because Shipp was unable to perform her job 

duties or because Treasures was suffering financially.  Because neither reason Beth shared for 

terminating Shipp was particularly loathsome, the statements, even taken as true, were not 

sufficient to support Shipp's outrage claim.

       Alternatively, Shipp argues that the manner in which Beth and Bacharach escorted her 

from Treasures was outrageous.  However, conduct that falls within the unprotected category of 

"insults, indignities, threats, annoyances, petty oppressions, or other trivialities" cannot support an 

outrage claim.  Strong v. Terrell, 147 Wn. App. 376, 386, 195 P.3d 977 (2008) (quoting 

Grimsby, 85 Wn.2d at 59).  In Strong, we held that a supervisor who subjected an employee to 

daily verbal abuse (including screaming and sarcastic criticism about her work), ridiculed her 

about her personal life, and denigrated her parenting abilities over a two-year period, had not 

engaged in conduct severe enough to establish an outrage claim.  147 Wn. App. at 386. Instead, 

the conduct about which Strong complained fell within the unprotected category of insults, 

indignities, and annoyances.  Strong, 147 Wn. App. at 386.

       Here, the Foundation terminated Shipp, escorted her out of the store in front of her former 

subordinates, told her not to return, and slammed the door.  While arguably unpleasant, each of 

these actions is much more benign than those at issue in Strong.  Like Strong, the Foundation's 

conduct belongs in the category of indignities, annoyances, and petty oppressions and cannot 

                                               10 

40647-1-II

support Shipp's outrage claim.

       Because the conduct Shipp cited cannot even approach the threshold required to support 

an outrage claim, the trial court correctly dismissed the claim on summary judgment.  Thus, we 

affirm the summary dismissal of this claim.

                                               11 

40647-1-II

                                        IV.  Retaliation

       Shipp next argues that the Foundation violated the Industrial Insurance Act7 (IIA) and 

public policy when it terminated her just two days after Shipp notified Beth that she and her 

doctor completed the necessary paperwork for a workers' compensation claim.  The Foundation 

counters that there is no question of material fact because Shipp did not present admissible 

evidence to show that the Foundation's reason for her termination was pretextual.  Because Shipp 

and the Foundation offered competing reasonable justifications for Shipp's termination, the cause 

of her termination is a question of material fact and summary judgment was inappropriate.  We

reverse and remand on the retaliation claim.

       Claims of retaliatory discharge under the IIA are subject to a burden-shifting scheme.  

Wilmot v. Kaiser Aluminum & Chem. Co., 118 Wn.2d 46, 70, 821 P.2d 18 (1991).  If a plaintiff 

makes a prima facie showing, the burden shifts to the employer to produce evidence of a 

legitimate reason for terminating the employee.  Wilmot, 118 Wn.2d at 70.  If the employer 

satisfies this burden of production, the burden shifts back to the discharged employee to show that 

the employer's justification for terminating the employee was pretextual.  Wilmot, 118 Wn.2d at 

70.

       First, a plaintiff makes a prima facie case of retaliatory discharge for pursuing workers'

compensation benefits by showing

       (1) that . . . she exercised the statutory right to pursue workers' benefits under 
       RCW Title 51 or [that she] communicated [her intent to do so] to the employer . . 
       . or [that she] exercised any other right under RCW Title 51; 
       (2) that . . . she was discharged [from employment]; and 
       (3) [that her exercise of her legal rights under RCW Title 51 caused or motivated 

7 Title 51 RCW.

                                               12 

40647-1-II

       her termination].

Wilmot, 118 Wn.2d at 68-69 (emphasis added).  Because proof of an employer's retaliatory 

motive is difficult for a discharged employee to obtain, a plaintiff may establish a prima facie case 

by circumstantial evidence.  Wilmot, 118 Wn.2d at 69.  Further, an employee need not show that 

retaliation for exercising workers' compensation rights was the sole reason for termination; rather, 

a terminated employee need only show that exercise of IIA rights was a substantial factor behind 

the termination.  Wilmot, 118 Wn.2d at 71-72.  Thus, if the plaintiff exercises rights under RCW 

Title 51 and shows that the employer had knowledge of the claim and terminated the employee, 

the plaintiff benefits from a rebuttable presumption of retaliation.  Wilmot, 118 Wn.2d at 68-69.

       Further, a temporal nexus between an employee engaging in protected activity and the 

adverse employment decision suggests retaliation. See  Burchfiel v. Boeing Corp., 149 Wn. App. 

468, 205 P.3d 145 (2009).8 Here, Shipp established at least a question of material fact of a prima 

facie case of retaliatory discharge by presenting evidence that Beth terminated her two days after 

Shipp notified Beth that Shipp completed workers' compensation claim paperwork with her 

doctor.  Shipp provided additional evidence that the Foundation did not want her to file a 

workers' compensation claim.  Thus, Shipp created a rebuttable presumption of retaliation and 

shifted the burden to the Foundation to produce evidence of a legitimate, nonpretextual 

motivation for terminating her.

       Next, to rebut a prima facie case of retaliatory discharge, an employer must show that the 

workers' compensation claim had no impact on its decision to terminate the employee because it 

8 Burchfiel analyzes retaliatory discharge in the context of Washington's law against 
discrimination, but the retaliation analysis is the same here. 

                                               13 

40647-1-II

would have inevitably terminated the employee.  Wilmot, 118 Wn.2d at 70-72.  The employer 

need not make this showing by a preponderance of the evidence because the employer's burden is

a burden of production not of persuasion.  Wilmot, 118 Wn.2d at 70.  If the employer produces 

evidence of a legitimate reason for terminating the employee, the burden shifts back to the plaintiff 

to show that the employer's reason is pretextual, i.e., not worthy of belief.  Wilmot, 118 Wn.2d at 

70.

       Here, the Foundation succeeded in rebutting the presumption of retaliation by producing 

evidence that it terminated Shipp for gossiping and not following instructions.  The Foundation 

also produced evidence that Shipp believed her job was in jeopardy since at least September 2003, 

that the Foundation's board was evaluating all Treasures employees, and that the Foundation's 

board members told Shipp in December 2003 that the board would decide whether it would 

continue Shipp's employment sometime in January.   This evidence rebutted the presumption of 

retaliation and shifted the burden back to Shipp to produce evidence of pretext.

       Lastly, an employee need only create a genuine issue of material fact that the termination 

was pretextual in order to survive an employer's summary judgment motion because the court 

considers all facts and inferences in the light most favorable to the employee.   Renz v. Spokane 

Eye Clinic, P.S., 114 Wn. App. 611, 619, 60 P.3d 106 (2002).  Moreover, an employee may 

show pretext by the same evidence used to make her prima facie case.  Milligan v. Thompson,

110 Wn. App. 628, 637, 42 P.3d 418 (2002).  If an employer gives multiple, inconsistent reasons 

for terminating an employee, there is an inference that none of the reasons given is the real reason.  

Renz, 114 Wn. App. at 624.  Evidence of an employer offering conflicting reasons for terminating 

                                               14 

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an employee creates competing inferences of the employer's actual motive for terminating the 

employee that cannot be resolved on summary judgment.  Renz, 114 Wn. App. at 624.   Where 

the parties have met all their burdens and competing reasonable inferences remain, then summary 

judgment is not appropriate and the jury must decide whether the termination was retaliatory.  

Renz, 114 Wn. App. at 622.

       Here, Shipp presented evidence that Beth told her she did not want her to file a workers'

compensation claim, that Shipp notified Beth on January 19 that she and her doctor had 

completed the paperwork for a workers' compensation claim, and that Beth terminated Shipp on 

January 21.  Shipp also presented evidence that Beth made at least two inconsistent statements 

about the reason she terminated Shipp.  The divergent reasons Beth gave for terminating Shipp 

were that Shipp gossiped with a co-worker despite warnings not to do so, and that Treasures was

unprofitable.  This evidence is sufficient to raise a genuine issue of material fact regarding the 

Foundation's motivation in terminating Shipp and summary judgment was inappropriate.  We

reverse and remand for further proceedings on the retaliation claim.9

                                   V.  Request for Sanctions

       The Foundation argues that it was materially prejudiced when the trial court declined to 

rule explicitly on its motion to strike.  The Foundation, without filing a cross-appeal, requests 

affirmative relief by asking us to remand and instruct the trial court to exercise its discretion to 

impose sanctions on Shipp for failing to timely disclose witnesses.  We disagree.

9 In holding that Shipp met her summary judgment burden on her retaliation claim, this court does 
not weigh the credibility of her evidence and makes no comment on it.  See Jones, 170 Wn.2d at 
354, n.7.

                                               15 

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       A respondent is not entitled to affirmative relief absent a cross-appeal.  RAP 2.4(a).  

Because the Foundation did not cross-appeal, we do not address the issues of  Shipp's

noncompliance with witness disclosure and discovery deadlines.

       Reverse and remand for further proceedings consistent with this opinion.

       A majority of the panel having determined that this opinion will not be printed in the 

Washington Appellate Reports, but will be filed for public record in accordance with RCW 

2.06.040, it is so ordered.

                                                                  Worswick, J.
We concur:

Van Deren, J.

Penoyar, C.J.

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