IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
RICHARD L. FERGUSON, individually, ) No. 79673-9-I
)
Appellant, )
)
v. ) DIVISION ONE
)
STATE OF WASHINGTON )
EMPLOYMENT SECURITY )
DEPARTMENT, a government entity, )
JOHN M. SELLS, individually, and in his ) UNPUBLISHED OPINION
Official Capacity as Assistant )
Commissioner State of Washington )
Employment Security Department, )
)
Respondent. )
)
ANDRUS, A.C.J. — After this court affirmed the Employment Security
Department’s denial of unemployment benefits to Richard L. Ferguson, 1 he filed a
tort suit against the Department and the commissioner who denied his claim
(collectively “Department”). 2 The trial court dismissed Ferguson’s suit on summary
judgment and rejected his CR 56(f) continuance request. Ferguson challenges
1
Ferguson v. Dep’t of Emp’t Sec., No. 75706-7-I, 2017 WL 4480784 (Wash. Ct. App. Oct. 9, 2017)
(unpublished), https://www.courts.wa.gov/opinions/pdf/757067.PDF.
2
This court previously affirmed dismissal of Ferguson’s tort suit against his former employer.
Ferguson v. Baker Law Firm, P.S., No. 78025-5-I, 2019 WL 3926173 (Wash. Ct. App. Aug. 19,
2019) (unpublished), https://www.courts.wa.gov/opinions/pdf/780255.pdf.
Citations and pin cites are based on the Westlaw online version of the cited material.
No. 79673-9-I/2
both rulings. Because he has established neither an abuse of discretion in denying
the continuance nor any genuine issues of material fact, we affirm.
FACTS
The facts are set forth in Ferguson v. Department of Employment Security,
No. 75706-7-I, 2017 WL 4480784 (Wash. Ct. App. Oct. 9, 2017) (unpublished),
https://www.courts.wa.gov/opinions/pdf/757067.PDF, and will be repeated only as
necessary.
In 2014 and 2015, Ferguson worked as a paralegal at the Baker Law Firm
in Marysville. As soon as Ferguson began working for the firm, other employees
raised concerns that he smelled like alcohol, showed a difficulty in following
conversations and concentrating, frequently missed filing deadlines, and arrived
late to the office. After futile attempts to help Ferguson improve his work, the firm
terminated his employment on March 13, 2015.
Ferguson filed a claim for unemployment benefits. This court affirmed the
Department’s denial of Ferguson’s claim, concluding substantial evidence
supported the Department’s conclusion that Ferguson had been terminated for
misconduct—specifically, at least in part, for consistently coming to work smelling
of alcohol.
On September 11, 2017, Ferguson sued the Department for negligence,
defamation, and intentional and negligent infliction of emotional distress. He
alleged the Department’s decision denying benefits, contained false and
inaccurate statements about him—specifically, that he repeatedly arrived at Baker
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Law Firm with alcohol on his breath and that he was terminated for repeatedly
reporting to work with alcohol on his breath.
For 15 months, Ferguson took no action in the suit. On December 14, 2018,
the Department moved for summary judgment, setting the hearing date for
February 6, 2019. It argued that Ferguson’s claims against the Department were
barred by the doctrine of quasi-judicial immunity and that this court had already
adjudicated his claims when it affirmed the Department’s denial of his
unemployment benefits.
Over a month later, on January 25, 2019, Ferguson moved to continue the
summary judgment hearing, arguing he had not had time to review and respond to
the motion. Ferguson maintained that because he was representing himself,
responding to the Department’s motion was an “enormous and overwhelming task,
which would normally require one or more associates, a partner, a brief bank,
paralegals, secretaries, and clerical staff.” He also asserted he had not conducted
discovery in the case, because he was overwhelmed by his suit against his former
employer, which was then before this court.
The trial court continued Ferguson’s continuance motion to coincide with
the Department’s underlying motion, orally denied his requested continuance, and
granted the Department’s motion for summary judgment, dismissing Ferguson’s
claims with prejudice. Ferguson appeals.
ANALYSIS
Ferguson argues the trial court abused its discretion by denying his motion
to continue the summary judgment hearing. We disagree.
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We review this decision for an abuse of discretion. Pitzer v. Union Bank of
Cal., 141 Wn.2d 539, 556, 9 P.3d 805 (2000). CR 56(f) allows a trial court to grant
a continuance if the party requesting the continuance provides an affidavit showing
a need for additional time to obtain affidavits, take depositions, or conduct other
discovery. Butler v. Joy, 116 Wn. App. 291, 299, 65 P.3d 671 (2003). The trial
court has the discretion to deny a continuance when (1) the requesting party does
not have a good reason for the delay in obtaining the evidence; (2) the requesting
party does not indicate what evidence would be established by further discovery;
or (3) the new evidence would not raise a genuine issue of fact. Coggle v. Snow,
56 Wn. App. 499, 507, 784 P.2d 554 (1990).
Ferguson’s primary reason for delay was the fact that he was representing
himself. But a “trial court must hold pro se parties to the same standards to which
it holds attorneys.” Edwards v. Le Duc, 157 Wn. App. 455, 460, 238 P.3d 1187
(2010); see also In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527
(1993) (“[T]he law does not distinguish between one who elects to conduct his or
her own legal affairs and one who seeks assistance of counsel—both are subject
to the same procedural and substantive laws.”) (internal quotation marks omitted)
(quoting In re Marriage of Wherley, 34 Wn. App. 344, 349, 661 P.2d 155 (1983))).
Furthermore, Ferguson had over a year in which to conduct discovery, during
which he did nothing to pursue his suit, and he did not indicate to the court what
evidence would be established by such discovery. Thus, the trial court did not
abuse its discretion in denying Ferguson’s request to continue the summary
judgment hearing.
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Moreover, no amount of evidence gathered would establish a genuine issue
of material fact because Ferguson’s claims are resolvable as a matter of law.
Summary judgment is appropriate only when no genuine issue exists as to any
material fact and the moving party is entitled to judgment as a matter of law. CR
56(c). We review summary judgment orders de novo, engaging in the same inquiry
as the trial court. Garcia v. Dep’t of Soc. & Health Servs., 10 Wn. App. 2d 885,
909, 451 P.3d 1107 (2019). “We . . . consider[] the evidence and all reasonable
inferences from the evidence in the light most favorable to the nonmoving party.”
Keck v. Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015).
As it did below, the Department argues the doctrine of quasi-judicial
immunity bars Ferguson’s suit. We agree.
Judicial officers’ actions are “protected by immunity from civil action for
damages if [those actions] are intimately associated with the judicial process.”
Labrec v. Emp’t Sec. Dep’t, 52 Wn. App. 188, 191, 758 P.2d 501 (1988). Issuing
findings of fact qualifies as a protected action. Id. at 190. “The purpose of this
immunity is not to protect judges as individuals, but to ensure that judges can
administer justice without fear of personal consequences.” Taggart v. State, 118
Wn.2d 195, 203, 822 P.2d 243 (1992). “If disgruntled litigants could raise civil
claims against judges, then ‘judges would lose that independence without which
no judiciary can either be respectable or useful.’” Id. (internal quotation marks
omitted) (quoting Butz v. Economou, 438 U.S. 478, 509, 98 S. Ct. 2894, 57 L. Ed.
2d 895 (1978)). Furthermore, “when an adjudication within an administrative
agency shares enough of the characteristics of the judicial process, the agency is
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absolutely immune from suits for damages.” Labrec, 52 Wn. App. at 190; see also
Lutheran Day Care v. Snohomish County, 119 Wn.2d 91, 127, 829 P.2d 746
(1992) (absolute immunity of quasi-judicial officers extends to governmental
entities vicariously liable for the individual officers’ acts).
Labrec established that “the [Employment Security] Department and its
adjudicating officers are absolutely immune from liability when acting in a judicial
capacity.” 52 Wn. App. at 189, 192. Accordingly, the Department’s decision
denying Ferguson unemployment benefits is a judicial action absolutely immune
from civil suit. Ferguson’s suit is premised entirely on his contention that the
Department harmed him by issuing its decision denying unemployment benefits.
His allegations relate solely to the Department’s resolution of conflicting evidence
in an adjudicative proceeding. This is precisely the sort of case quasi-judicial
immunity is meant to protect against—to ensure that judicial officers, and by
extension agencies, can administer justice without fear of personal consequences.
Even if Ferguson’s claims were not barred by quasi-judicial immunity, his
claims are barred as a matter of law. Ferguson’s quarrel with the Department’s
decision to deny his claim for unemployment benefits stems from the finding of fact
that Ferguson had alcohol on his breath. But this court addressed this argument
when affirming the Department’s denial of benefits.
Ferguson next contends that the commissioner erred in
finding that he came to work with alcohol on his breath. He contends
that the evidence showed only that his body odor or perspiration
smelled of metabolized alcohol. But substantial evidence supports
the challenged finding. [One Baker employee] testified that “on
occasion, I suppose, that maybe it smelled like it was coming from
your breath,” [and another employee] testified that the smell “could
possibly” have come from Ferguson’s breath. Moreover, even if the
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findings were erroneous, it is insignificant. Ferguson was terminated
for coming to work smelling of alcohol. The source of the smell is
immaterial.
Ferguson, 2017 WL 4480784 at *4 (emphasis added). This ruling forecloses
Ferguson’s claims for defamation and intentional infliction of emotional distress.
To establish his defamation claim, Ferguson must show falsity, an
unprivileged communication, fault, and damages. Life Designs Ranch, Inc. v.
Sommer, 191 Wn. App. 320, 330, 364 P.3d 129 (2015). As a matter of law,
Ferguson cannot establish falsity where this court has previously ruled that the
challenged finding of fact was supported by substantial evidence.
Ferguson’s claim for intentional infliction of emotional distress similarly fails.
The first element of an intentional infliction of emotional distress claim is extreme
and outrageous conduct. Strong v. Terrell, 147 Wn. App. 376, 385, 195 P.3d 977
(2008). As a matter of law, Ferguson cannot establish extreme and outrageous
conduct where this court has previously ruled that the challenged finding of fact
was supported by substantial evidence.
Lastly, Ferguson’s claims for negligence and negligent infliction of
emotional distress also fail. To establish either, Ferguson must first show the
Department owed him a duty. Munich v. Skagit Emergency Commc’n Ctr., 175
Wn.2d 871, 877, 288 P.3d 328 (2012) (negligence); Kumar v. Gate Gourmet Inc.,
180 Wn.2d 481, 505, 325 P.3d 193 (2014) (negligent infliction of emotional
distress). Because Ferguson claims the Department—a governmental entity—
was negligent, he must show under the public duty doctrine that “the duty breached
was owed to him . . . in particular, and was not the breach of an obligation owed to
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the public in general, i.e., a duty owed to all is a duty owed to none.” Munich, 175
Wn.2d at 878. Ferguson alleged no facts sufficient to show the Department owed
him a particular duty. As a matter of law, with no showing of duty, Ferguson cannot
establish the Department was negligent.
Because the Department is immune from Ferguson’s civil action for
damages and because it was entitled to judgment as a matter of law, the court did
not abuse its discretion in denying Ferguson’s motion to continue the summary
judgment hearing nor did it err in granting the Department’s motion for summary
judgment.
Affirmed.
WE CONCUR:
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Richard L. Ferguson v. Employment Security Department
Combined Opinion