(dissenting in part) —The incidence of harassment and discrimination in the workplace is terrifying and real. Its occurrence is remediable at law. The remedy, however, must be applied against those truly culpable for the injury caused. Our case law precedent is clear that an employer is not responsible for resolving issues between employees in conflict—no matter how hurtful to the putative victim of the conflict. An employer becomes liable when he or she participates through an identifiable agent or takes no action in the face of repeated harassment which is attributable to a protected classification, and which is committed in the furtherance of the perpetrator’s employ*59ment. If these conditions are not present, the culprit at law must be the offending employee, “deep-pocket” considerations aside. Empathy for those for whom going to work becomes a nightmare is insufficient to hold otherwise noncomplicit employers liable for the harm done by rogue employees. With these considerations in mind, I turn to the case at bar.
Linda Robel began work at Fred Meyer11 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. I concur with the majority’s holding that a defamation claim is not actionable on these facts.
STANDARD OF REVIEW
The majority asserts that because Fred Meyer has failed to challenge the trial court’s findings of fact, we must accept *60them as verities on appeal. State v. Stenson, 132 Wn.2d 668, 697, 940 P.2d 1239 (1997). However, a conclusion of law is a conclusion of law wherever it appears, even if it is erroneously labeled a finding of fact. Kane v. Klos, 50 Wn.2d 778, 788, 314 P.2d 672 (1957); Local Union 1296, Int’l Ass’n of Firefighters v. City of Kennewick, 86 Wn.2d 156, 161-62, 542 P.2d 1252 (1975). Conclusions of law are reviewed de novo. State v. Johnson, 128 Wn.2d 431, 443, 909 P.2d 293 (1996). Furthermore, mixed questions of law and fact are subject to review despite a party’s failure to assign error to the finding. State v. Niedergang, 43 Wn. App. 656, 660-61, 719 P.2d 576 (1986).
We have stated that a “ £ “finding of fact is the assertion that a phenomenon has happened or is or will be happening independent of or anterior to any assertion as to its legal effect.” ’ ” Leschi Improvement Council v. State Highway Comm’n, 84 Wn.2d 271, 283, 525 P.2d 774, 804 P.2d 1 (1974) (quoting NLRB v. Marcus Trucking Co., 286 F.2d 583, 590-91 (2d Cir. 1961) (quoting Louis L. Jaffee, Judicial Review: Question of Law, 69 Harv. L. Rev. 239, 241 (1955))). See also State v. Williams, 96 Wn.2d 215, 221, 634 P.2d 868 (1981) (“Where findings necessarily imply one conclusion of law the question still remains whether the evidence justified that conclusion.”) (citing Cline v. Altose, 158 Wash. 119, 126, 290 P. 809 (1930)). In contrast, a conclusion of law is a “determination [that] is made by a process of legal reasoning from facts in evidence.” Niedergang, 43 Wn. App. at 658-59.
This court has had several opportunities to evaluate whether findings of fact were, in actuality, conclusions of law. In Ridgeview Properties v. Starbuck, 96 Wn.2d 716, 719, 638 P.2d 1231 (1982), we held that a trial court’s finding of fact that “[a] dual agency relationship was not established at any time during [the] transaction” was actually a conclusion of law. In Woodruff v. McClellan, 95 Wn.2d 394, 396, 622 P.2d 1268 (1980), we held that a trial court’s finding of fact that defendants properly rescinded the earnest money agreement was actually a conclusion of *61law because the term “rescission” carried a legal implication. See also Cline, 158 Wash, at 126 (in landlord-tenant action, finding of fact that actions of parties adequately established respondent’s right to a damage award was actually a conclusion of law because it necessarily implied that there was a constructive eviction); Niedergang, 43 Wn. App. at 660 (holding that trial court’s finding of fact that defendant’s automobile was parked outside curtilage of his house was at least mixed question of law and fact because “curtilage” could be determined only by examining facts of case); Moulden & Sons v. Osaka Landscaping & Nursery, Inc., 21 Wn. App. 194, 197, 584 P.2d 968 (1978) (holding trial court’s finding of fact that plaintiff had cured the breach was actually a conclusion of law).
Applying the above definitions, I agree with Fred Meyer that many of the trial court’s findings of fact are truly conclusions of law and are as such subject to review. I will address the erroneously labeled findings as they are relevant.
DISABILITY DISCRIMINATION
Although I agree with the majority that Washington’s antidiscrimination statute supports a disability-based hostile work environment claim, I disagree that the findings of fact in this case support such a claim.
Adopting the framework established in Glasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 406-07, 693 P.2d 708 (1985), the majority holds that a “plaintiff in a disability-based hostile work environment case must prove (1) that he or she was disabled within the meaning of the antidiscrimi-nation statute, (2) that the harassment was unwelcome, (3) that it was because of the disability, (4) that it affected the terms or conditions of employment, and (5) that it was imputable to the employer.” Majority at 45.
The uncontested findings of fact do not support the majority’s conclusion that Robel was harassed because of her disability. The trial court found that “[t]he verbal and *62non-verbal harassment of Robel in the work setting subsequent to July 14, 1996, was directly or proximately related to her disability and/or Fred Meyer’s perception of Robel as disabled.”12 The majority, however, was unwilling to draw a distinction between “ ‘directly or proximately related to’ ” and “ ‘because of’ ” the disability. Majority at 46. Under current Washington law, this distinction must be made.
In Glasgow, this court indicated that to satisfy the “because of’ prong, the prohibited classification must be the “motivating factor for the unlawful discrimination.” 103 Wn.2d at 406 (emphasis added). In the context of disability harassment, the question the court must ask is whether “the employee [would] have been singled out and caused to suffer the harassment if the employee had” not been disabled? Id. In Robel’s case, the answer is clearly yes.
Because the trial court’s findings of fact were not challenged, we must accept its finding that the harassment after Robel’s injury was “directly or proximately related to her disability.”13 However, this finding alone is insufficient to support the conclusion that the harassment was “because of’ Robel’s disability. The harassment suffered by Robel began long before she became disabled. As early as January 1996, Robel began to experience hostility from her coworkers. This hostility continued and worsened in the months that followed, and included a particularly nasty confrontation with Tiffany Ware. At that time, Robel was not disabled. After Robel suffered a lower back injury, requiring that she work only a light duty shift, only one incident referenced Robel’s disability. These facts clearly indicate that Robel would have been harassed even if she had remained able-bodied. Given the ongoing pattern of harassment and its genesis in significant personality differences, had Robel not suffered her back injury, it is unfortunate but likely that the adverse treatment would have endured in another form.
*63In John Doe v. Department of Transportation, 85 Wn. App. 143, 149, 931 P.2d 196 (1997), the Court of Appeals held that the plaintiff had failed to establish that his supervisor’s comments, although sexual in nature, were motivated by the plaintiff’s gender. The court found that the supervisor had instead singled out people “who appeared to be particularly offended by his conduct regardless of the victims’ sex.” Id.
In evaluating hostile work environment claims under the federal Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, several circuit courts have similarly held that isolated incidents of harassment were not motivated by plaintiffs’ disabilities, even though at least some of the harassing conduct may have been related to the plaintiffs’ disabilities. See Wallin v. Minn. Dep’t of Corr., 153 F.3d 681, 688 (8th Cir. 1998) (holding that plaintiff failed to establish that harassment was due to his disabilities even though three incidents were related to his disability); Cannice v. Norwest Bank Iowa N.A., 189 F.3d 723, 725-26 (8th Cir. 1999) (holding that plaintiff failed to establish that alleged harassment was “because of’ his disability even though two isolated incidents may have been connected to his mental condition; “[i]nsensitivity alone does not amount to harassment”).
Where federal courts have upheld disability discrimination claims based on a hostile work environment, the harassment did not begin until after the employee suffered the disability or the employer became aware of it. See, e.g., Fox v. Gen. Motors Corp., 247 F.3d 169, 172-73 (4th Cir. 2001) (plaintiff, who had worked for defendant for many years, did not suffer harassment until after he received light work load due to his back injury); Flowers v. S. Reg’l Physician Servs. Inc., 247 F.3d 229, 236 (5th Cir. 2001) (finding that plaintiff and her supervisor had been good friends prior to supervisor’s discovery that plaintiff was HIV (human immunodeficiency virus) positive and that harassing treatment of plaintiff did not begin until thereafter). Plainly, such was not the case for Robel.
*64Therefore, I would hold that Robel failed to establish that she was harassed because of her disability, an essential element of her disability discrimination claim.14
OUTRAGE
The tort of outrage requires the plaintiff to show: (1) extreme or outrageous conduct by the defendant, (2) that the conduct was intentional or reckless, and (3) that the plaintiff actually suffered severe emotional distress as a result. Dicomes v. State, 113 Wn.2d 612, 630, 782 P.2d 1002 (1989) (citing Rice v. Janovich, 109 Wn.2d 48, 61, 742 P.2d 1230 (1987)). The conduct at issue must be “ ‘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.’ ” Id. at 630 (emphasis omitted) (quoting Grimsby v. Samson, 85 Wn.2d 52, 59, 530 P.2d 291 (1975)).
Although whether the defendant’s conduct is sufficiently outrageous is a question of fact for the jury, before a claim of outrage can go to the jury, the court must first determine “if reasonable minds could differ on whether the conduct was sufficiently extreme to result in liability.” Id. at 630. In deciding this threshold question, the majority reversed the Court of Appeals concluding that on these facts “reasonable persons could deem the employer’s conduct. . . sufficiently outrageous to trigger liability.” Majority at 51. The majority applied this standard to the wrong set of facts, relying on the conduct of Robel’s co-workers. However, Robel’s action *65is against Fred Meyer, not her co-workers. Thus, the correct inquiry is whether Fred Meyer’s conduct in responding to the co-workers’ behavior was “sufficiently extreme [as] to result in liability?” I believe that it was not.
First, when the findings of fact are taken as a whole, Fred Meyer’s direct action and/or inaction was not sufficient to result in liability. Although the trial court found that “Fred Meyer through its action and/or inaction allowed and/or fostered the verbal and non-verbal harassment in the work setting,”15 it also found that when Robel chose to complain about the harassment or other problems in her department, Fred Meyer generally responded to her concerns. For example, when Robel first complained about the food handling problems in the deli to the store’s director, Steve Wissink, Wissink undertook an investigation and found that the problems were insubstantial. Similarly, when Tiffany Ware was awarded a 40-hour position in the deli, the United Food and Commercial Workers Union successfully challenged the action on behalf of Robel. After her injury, Robel, through her union representative again reported incidents of harassment to Wissink, who then met with the deli employees and informed them that harassment would not be tolerated. When Wissink was informed that the harassment had continued, he conducted another investigation and eventually fired Ware.
Fred Meyer’s responses certainly were not “ ‘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.’ ” Dicomes, 113 Wn.2d at 630 (emphasis omitted) (quoting Grimsby, 85 Wn.2d at 59). Fred Meyer’s actions were in no way as severe as those of Robel’s co-workers, which the majority admitted was a “close call” in terms of creating the requisite level of outrageousness. Majority at 51.
It is not for this court to second-guess what actions should have been taken. In examining the applicability of the tort *66of negligent infliction of emotional distress in the workplace, we have observed that “ ‘employers, not the courts, are in the best position to determine whether such disputes should be resolved by employee counseling, discipline, transfers, terminations or no action at all’ ” Snyder v. Med. Serv. Corp., 145 Wn.2d 233, 245, 35 P.3d 1158 (2001) (emphasis added) (quoting Bishop v. State, 77 Wn. App. 228, 234, 889 P.2d 959 (1995)). There seems to be no reason why the same latitude should not be given to employers in the context of the tort of outrage.
Second, in answering the threshold question of whether Fred Meyer’s conduct was “sufficiently extreme” as to result in liability, Robel’s co-workers’ actions should not be imputed to Fred Meyer. Although the trial court found that “[t]he verbal and non-verbal harassment of Robel in the work setting is imputed to Fred Meyer and causally related to her emotional distress,”16 this “finding of fact” is actually a conclusion of law and thus subject to review. Whether an action may be imputed to another party can be determined only by applying the relevant facts to the law. Cf. Niedergang, 43 Wn. App. at 658-59. Therefore, whether an act of an employee may be imputed to an employer is ultimately a question of whether the employer may be held vicariously liable for the acts of its employees acting outside the scope of their employment. We have already answered this question in the negative. Snyder, 145 Wn.2d at 242. See also Niece v. Elmview Group Home, 79 Wn. App. 660, 664, 904 P.2d 784 (1995) (“When an employee’s intentionally tortious or criminal acts are not in furtherance of the employer’s business, the employer is not liable as a matter of law . . . .” (emphasis added)), aff’d, 131 Wn.2d 39, 929 P.2d 420 (1997).
In Niece, we held that “current Washington law clearly rejects vicarious liability for intentional or criminal conduct outside the scope of employment.” Niece v. Elmview Group Home, 131 Wn.2d 39, 56, 929 P.2d 420 (1997). Again, in *67Snyder, we stated that “ ‘[w]hen an employee’s intentionally tortious or criminal acts are not in furtherance of the employer’s business, the employer is not liable as a matter of law, even if the employment situation provided the opportunity or means for the employee’s wrongful acts.’ ” 145 Wn.2d at 242 (emphasis added) (quoting Niece, 79 Wn. App. at 664). See also McGrail v. Dep’t of Labor & Indus., 190 Wash. 272, 277, 67 P.2d 851 (1937) (under traditional agency principles, principal may be liable for acts of its agents only if agent was “engaged in the performance of the duties required of him by his contract of employment or by the specific direction of his employer, or, as sometimes stated, whether he was engaged at the time in the furtherance of the employer’s interests”) (emphasis added).
In Snyder, the plaintiff claimed outrage based solely on the acts of her immediate supervisor, Hall. 145 Wn.2d at 242. Hall’s behavior toward the plaintiff and other employees was described as “authoritarian,” “belligerent,” and “harassing-type supervisor” and was severe enough as to cause some employees to quit. Id. at 236-37. Hall specifically threatened Snyder17 and, on one occasion, “poked” Snyder in the chest. Id. at 237. Snyder and Hall’s employer, Medical Service Corporation (MSC), did nothing to stop Hall’s offensive behavior even though MSC was aware of it. Id. at 236-37. Because MSC had a policy forbidding “its supervisors to use physical force or threats of physical force,” we concluded that Hall’s actions were outside the scope of her employment, and thus, MSC could not be vicariously liable for Hall’s actions. Id. at 243.
Here, the actions by Robel’s co-workers18 were clearly outside the scope of their employment. Like the employer in *68Snyder, Fred Meyer had a policy forbidding “harassment, threats, and intimidation involving one employee versus another.”19 Furthermore, it did not direct its employees to harass Robel.20 Although these comments and actions may have been offensive to Robel, they were not “in furtherance of” Fred Meyer’s business. In fact, unlike the actions by Hall in Snyder which tended to involve “work-related topics—pay and unpaid overtime work,” Snyder v. Medical Services Corp., 98 Wn. App. 315, 324, 988 P.2d 1023 (1999), the actions and comments by Robel’s co-workers were largely unrelated to the workplace.
Despite the majority’s assertion, merely because an employee is “on duty” does not mean that the employee was acting within the scope of his or her employment. See majority at 52-54. Washington courts have generally required more than the fact that an employee was “on duty” in order to hold his or her employer vicariously liable for the employee’s intentionally tortious acts. “When an employee’s intentionally tortious or criminal acts are not in furtherance of the employer’s business, the employer is not liable as a matter of law, even if the employment situation provided the opportunity or means for the employee’s wrongful acts.” Niece, 79 Wn. App. at 664 (emphasis added). See also 16 David K. Dewolf & Keller W. Allen, Washington Practice: Tort Law and Practice § 3.7, at 89 (2d ed. 2000) (“intentional torts of servants are not, generally as a matter of law, *69considered within the scope of employment or in furtherance of a master’s business”); Hein v. Chrysler Corp., 45 Wn.2d 586, 600, 277 P.2d 708 (1954) (“An employee who willfully and for his own purposes violates the property rights of another ... is not acting in the furtherance of his employer’s business.”).
Numerous Washington cases have refused to impose liability on an employer for the intentional torts committed by their employees even though the employee was “on duty” at the time of the tort. See, e.g., Hein, 45 Wn.2d at 598-600 (holding employer not vicariously liable for employees malicious inducement of a breach of contract even though employees used employer’s business to induce breach because employees not acting within scope of employment); Niece, 79 Wn. App. at 664 (group home employee not acting within scope of employment when he sexually assaulted a patient); Kuehn v. White, 24 Wn. App. 274, 277-79, 600 P.2d 679 (1979) (employer not liable for employee truck driver who assaulted another motorist in a roadside argument even though truck driver’s employment technically created the opportunity for the conflict). Under the majority’s reasoning, an employer would essentially be strictly liable for all intentionally tortious actions committed by an employee who was “on duty” regardless of whether the actions were in furtherance of the employer’s business. This position is clearly not supported by Washington law. See Niece, 131 Wn.2d at 54-56 (rejecting nondelegable theory of employer liability for intentional acts of its employers acting outside the scope of their employment).
Because we have declined to hold employers vicariously liable as a matter of law in exactly this type of situation, Robel’s co-workers’ actions cannot be imputed to Fred Meyer. The circumstances here are virtually indistinguishable from our recent decision in Snyder except insofar as the employee’s actions in that case were arguably more egregious and the employer’s actions less responsive. Yet, there was no liability for the employer in Snyder. The actions of Robel’s co-workers may not be used to determine *70that reasonable minds could differ as to whether Fred Meyer’s actions were sufficiently extreme as to warrant liability.
RETALIATION
Without justification, the majority extends the tort of wrongful discharge recognized in Thompson v. St. Regis Paper Co., 102 Wn.2d 219, 685 P.2d 1081 (1984) to encompass an act by an employer short of actual or constructive discharge. The majority merely substitutes the word “discrimination” for “discharge.” However, the majority fails to define any limitation to the tort or to provide any justification expanding the tort beyond acts of discharge. I would continue to limit successful wrongful discharge claims to those that can show actual or constructive discharge.
In Thompson, we emphasized that the wrongful discharge exception to the employment at will doctrine was narrow and required balancing the interest of the employer to be protected against frivolous lawsuits with the interest of the employee to be protected against employer actions that contravene a clear public policy. Id. at 223, 232-33. Wrongful discharge claims have generally been allowed in four circumstances: “ ‘(1) where employees are fired for refusing to commit an illegal act; (2) where employees are fired for performing a public duty or obligation, such as serving jury duty; (3) where employees are fired for exercising a legal right or privilege, such as filing workers’ compensation claims; and (4) where employees are fired in retaliation for reporting employer misconduct, i.e., whistleblowing.’ ” Warnek v. ABB Combustion Eng’g Servs., Inc., 137 Wn.2d 450, 461, 972 P.2d 453 (1999) (emphasis added) (quoting Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 936, 913 P.2d 377 (1996)).
Although RCW 51.48.025(1) states that “[n]o employer may discharge or in any manner discriminate against any employee because such employee has filed or communicated to the employer any intent to file a claim for compensation *71or exercises any rights provided under this title,” the statute does not provide a direct cause of action for an aggrieved employee.21 It does, however, provide the requisite public policy used by this court to establish an action for wrongful discharge in Wilmot v. Kaiser Aluminum & Chemical Corp., 118 Wn.2d 46, 821 P.2d 18 (1991). In Wilmot, we held that a plaintiff could make out a prima facie case for retaliatory discharge by showing “(1) that he or she exercised the statutory right to pursue workers’ benefits under RCW Title 51 or communicated to the employer an intent to do so or exercised any other right under RCW Title 51; (2) that he or she was discharged; and (3) that there is a causal connection between the exercise of the legal right and the discharge.” Id. at 68. In determining whether our common law tort of wrongful discharge is broad enough to cover adverse employer actions less than actual discharge, we must look at the purpose of the public policy issue, as well as the tort itself.
In White v. State, 131 Wn.2d 1, 18, 929 P.2d 396 (1997), we addressed for the first time whether an adverse employer action less than actual discharge is actionable where the action violates a clear mandate of public policy. There, we were asked to adopt a cause of action for wrongful transfer in violation of public policy where the transfer did not result in a loss of pay, rank, job classification, or benefits. Id. at 7, 18. In declining to adopt such an action, we stated that recognizing a cause of action for employer actions short of actual discharge would open “a floodgate to frivolous litigation and substantially interfer[e] with an employer’s discretion to make personnel decisions.” Id. at 19 (citing White v. State, 78 Wn. App. 824, 839-40, 898 P.2d 331 (1995)).
*72In Warnek, we addressed the related issue of whether wrongful discharge encompassed an action for wrongful refusal to rehire. 137 Wn.2d at 461-62. The plaintiffs in Warnek alleged that the defendant had refused to rehire them after they had been laid off because they had filed workers’ compensation claims in another state. Id. at 453. We held that prior Washington case law did not provide a cause of action for a former employee who had previously filed a workers’ compensation grievance. Id. at 458. We emphasized that the plaintiffs had failed to establish the requisite element that they be “fired” or “discharged.” Id. at 461.
Other jurisdictions have been similarly reluctant to expand the tort of wrongful discharge to include lesser disciplinary actions. See Ludwig v. C&A Wallcoverings, Inc., 960 F.2d 40, 42-43 (7th Cir. 1992) (rejecting tort of retaliatory demotion); Sanchez v. Philip Morris Inc., 992 F.2d 244, 249 (10th Cir. 1993) (refusing to adopt tort of wrongful failure to hire); LaFriniere v. Group W Cable, Inc., 670 F. Supp. 897, 898 (D. Mont. 1987) (finding no cause of action for wrongful demotion under Montana law); Zimmerman v. Buchheit of Sparta, Inc., 164 Ill. 2d 29, 645 N.E.2d 877, 206 Ill. Dec. 625 (1994) (refusing to extend tort of wrongful discharge to include demotions or discrimination for employee pursuing workers’ compensation claim); Mintz v. Bell Atl. Sys. Leasing Int'l, 183 Ariz. 550, 553, 905 P.2d 559 (1995) (rejecting tort of wrongful failure to promote in violation of public policy); Burris v. City of Phoenix, 179 Ariz. 35, 43, 875 P.2d 1340 (1993) (rejecting new tort of wrongful failure to hire); Williams v. Dub Ross Co., 1995 OK. Civ. App. 9, 895 P.2d 1344, 1347 (refusing to expand public policy doctrine to include wrongful failure to hire).22 In the few jurisdictions to extend the wrongful discharge action, the plaintiffs all suffered actual adverse employment actions. See Brigham *73v. Dillon Cos., 262 Kan. 12, 20, 935 P.2d 1054, 1059-60 (1997) (recognizing cause of action for retaliatory demotion); Powers v. Springfield City Sch., No. 98-CA-10, 1998 Ohio App. LEXIS 2827, 1998 WL 336782, at *5-6 (Ohio Ct. App. June 26, 1998) (recognizing cause of action for wrongful denial of promotion).23
In Zimmerman, the Illinois Supreme Court addressed the identical question presented in this case: whether the statutory prohibition on employers discriminating against an employee who files a workers’ compensation claim gives rise to a common law cause of action. 164 Ill. 2d at 31. Although the Illinois court had recognized a wrongful discharge action in such situations, it refused to adopt a cause of action for lesser disciplinary actions, holding that to do so would “replace the well-developed element of discharge with a new, ill-defined, and potentially all-encompassing concept of retaliatory conduct or discrimination.” Id. at 39.
The basic premise behind the wrongful discharge claim as related to the workers’ compensation statute is to ensure that employees are able to utilize the benefits offered by that statute. When an employee successfully files for workers’ compensation and retains his or her position, this purpose is effectuated. However, when an employee is wrongfully discharged for filing or expressing an intent to file a workers’ compensation claim, the purpose is frustrated. Without the claim for retaliatory discharge, the employee would be placed in the position of choosing between his or her job and seeking the remedies afforded under the workers’ compensation statute. See Zimmerman, 164 Ill. 2d at 33. The same choice would not arise to an employee who faces a lesser disciplinary action. Extending the wrongful discharge cause of action to lesser disciplinary actions would allow an employee to obtain greater rights *74than the workers’ compensation statute otherwise allows. This would upset both the balance struck by the workers’ compensation statute and by the tort of wrongful discharge generally.
But even if I agreed that wrongful discharge should be extended to lesser employer actions, I cannot agree that the conduct here meets the majority’s test. Robel has simply not met her burden to prove that Fred Meyer discriminated against her in some way or that the discrimination was causally connected to her workers’ compensation claim. See majority at 50.
The findings of fact do not support the conclusion that Fred Meyer “discriminated” against Robel24 because she filed a workers’ compensation claim.25 After suffering a back injury at work, Robel successfully filed for workers’ compensation. There is no indication that Fred Meyer attempted to prevent her from filing this claim or that she was in any way denied benefits. The record also clearly shows that Fred Meyer accommodated her injury by giving her a light duty shift. In fact, only the “slip and fall” incident is even related to Robel’s filing of a workers’ compensation claim.26
Finally, to satisfy the third prong of the Wilmot test adopted by the majority, Robel must show that the discharge was motivated by the plaintiff’s protected activity. Wilmot, 118 Wn.2d at 68. Although tracking the language of the Wilmot test, the trial court’s finding that there was “a direct causal connection between Robel’s protected activity *75and the adverse employment action,”27 does not clearly establish that the workers’ compensation claim motivated the adverse actions of Robel’s co-workers. Taken as a whole, the record shows a pattern of negative treatment by Robel’s co-workers that began nearly six months before she filed her claim and involved many statements completely unrelated to her claim 28 Therefore, I disagree with the majority that Robel satisfied her burden to prove the second two elements of her retaliation claim.
CONCLUSION
Although Robel was treated horribly by her fellow Fred Meyer employees, the adverse treatment was attributable to personality conflicts among these employees and not to management action or inaction. Thus, I do not believe that such treatment gives rise to any sustainable claim against her employer under Washington law. I therefore respectfully dissent from the majority’s opinion to the contrary.
Smith, Madsen, and Sanders, JJ., concur with Bridge, J.
Motions for reconsideration denied March 24, 2003.
Roundup Corp. does business as Fred Meyer, Inc. For consistency, I will use the name “Fred Meyer” when referring to Roundup Corp.
Clerk’s Papers (CP) at 1334 (finding of fact 31).
CP at 1334 (finding of fact 31).
Because I find that the harassment suffered by Robel was not motivated by her disability, I see no need to address whether the harassment was properly imputed to Fred Meyer under the Glasgow framework. However, I believe the majority’s attempt to qualify Potts as a “manager” as the term is used in Glasgow is inappropriate. This court has never defined the term “manager” for the purpose of hostile work environment actions and I do not believe it is proper to make such broad assertions as to whom is covered by the term in this case, especially given the trial court’s failure to make a specific finding on the issue. See 6A Washington Pattern Jury Instructions: Civil 330.23 cmt. at 243 (1997) (“There is no Washington case which examines the term ‘manager’ for purposes of imputing liability to the employing entity.”); Henningsen v. Worldcom, Inc., 102 Wn. App. 828, 837-38, 9 P.3d 948 (2000).
CP at 1336 (finding of fact 47).
CP at 1332 (finding of fact 19).
After giving Snyder a raise, Hall told her that if she told anyone where she got the raise from, Hall would “literally hunt Ms. Snyder down and “Mil her.’ ” Snyder, 145 Wn.2d at 237. In addition, when Snyder told Hall that she would not work an unpaid Saturday, Hall accused Snyder of insubordination. Id.
Although the majority repeatedly emphasizes the titles of employees Potts and Smith (“deli manager” and “assistant deli manager” respectively), the law of agency does not differentiate between various levels of employees. See 16 David K. Dewolf & Keller W. Allen, Washington Practice: Tort Law and Practice §§ 3.2, 3.3, at 82-84 (2d ed. 2000) (quoting Restatement (Second) of Agency § 220(1) (1958) *68(“ ‘[a] servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control.’ ”)). Therefore, the fact that Smith participated in the abusive behavior or that Potts was aware of it is irrelevant as to whether liability should be imposed on Fred Meyer.
CP at 1336 (finding of fact 50).
The trial court found that “Fred Meyer, through the acts of its managers, participated, authorized, knew and/or should have known of the verbal and non-verbal harassment of Robel in the work setting subsequent to July 14, 1996.” CP at 1335 (finding of fact 38). However, this finding, when compared with other findings of the trial court, is insufficient to establish that Fred Meyer “directed” its employees to treat Robel badly. See, e.g., CP at 1334 (finding of fact 30) (“Subsequent to .. . July 14, 1996, Robel was subjected to verbal and non-verbal harassment in the work setting by co-employees and Fred Meyer’s management personnel, notwithstanding a directive to cease.”).
Under RCW 51.48.025(2), “[a]ny employee who believes that he or she has been discharged or otherwise discriminated against by an employer in violation of this section may file a complaint with the director alleging discrimination within ninety days of the date of the alleged violation.... (3) [i]f the director determines that this section has not been violated, the employee may institute the action on his or her own behalf.” There is no indication that Robel filed such a claim with the director in this case.
See also Michael D. Moberly & Carolann E. Doran, The Nose of the Camel: Extending the Public Policy Exception Beyond the Wrongful Discharge Context, 13 Lab. Law. 371, 372 (1997) (finding that although public policy exception to employment at will doctrine has been recognized in 39 states, “it rarely has been applied in cases involving employer actions other than discharge”).
Although California has recognized a cause of action for wrongful demotion, it did so by finding that the plaintiff had an implied contractual agreement with the employer not to demote without good cause. Scott v. Pac. Gas & Elec. Co., 11 Cal. 4th 454, 466, 904 P.2d 834, 46 Cal. Rptr. 2d 427 (1995).
As noted above, the majority does not define the term “discrimination” as used in this context. I would interpret this term to require an actual adverse employment action, such as a demotion or adverse transfer, or a hostile work environment that amounts to an adverse employment action.
Because the words “retaliation” and “unlawftd” in findings of fact 35 and 36 carry a legal implication, they are more accurately characterized as a legal conclusion. See cf. Woodruff, 95 Wn.2d at 396. Thus, these conclusions are subject to review.
CP at 1333 (Finding of Pact 23) (“On or about August 1, 1996, Robel was at the display table, and Ware and another deli worker laughed, acted out a slip and fall. Robel testified one of them yelled ‘Oh, I hurt my back, L&I, L&I.’ ”).
CP at 1335 (finding of fact 37).
See, e.g., CP at 1330-33, 1337-38 (findings of fact 7, 12, 15, 25, 63, 65).