NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS JUN 4 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

THERESE LALUMIERE, No. 17-35935

Plaintiff-Appellant, D.C. No. 1:16-cv-03133-RMP

v.

MEMORANDUM*

WILLOW SPRINGS CARE, INC., a Washington corporation; et al.,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of Washington Rosanna Malouf Peterson, District Judge, Presiding

Submitted May 16, 2019** Seattle, Washington

Before: HAWKINS and W. FLETCHER, Circuit Judges, and SEEBORG,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Richard Seeborg, United States District Judge for the Northern District of California, sitting by designation. The district court granted summary judgment against appellant Therese

Lalumiere on her claims against her former employer and supervisors for

intentional infliction of emotional distress, retaliation, false imprisonment, and

violations of federal law regarding medical leave. We have jurisdiction pursuant to

28 U.S.C. § 1291, and our review is de novo. Vietnam Veterans of Am. v. Cent.

Intelligence Agency, 811 F.3d 1068, 1075 (9th Cir. 2016). We affirm.

No reasonable jury could find Lalumiere suffered actionable intentional

infliction of emotional distress (IIED). To establish IIED a plaintiff must prove:

“(1) extreme and outrageous conduct, (2) intentional or reckless infliction of

emotional distress, and (3) actual result to plaintiff of severe emotional distress.”

Kloepfel v Bokor, 66 P.3d 630, 632 (Wash. 2003). A claim of IIED or “outrage”

must be predicated on behavior “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. (internal quotation

marks and citations omitted). There is no cause of action for IIED for “mere

insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Id.

The evidence to which Lalumiere points shows ordinary workplace disputes

and conflict; it would not support a determination by a trier of fact that Lalumiere

was subjected to IIED, even assuming she is correct that some or all of the

allegations against her could have been rebutted. Similarly, the record regarding

2 17-35935 the supervisor-employee interactions lasting approximately fifteen minutes in the

workplace conference room on April 19, 2015 presents no material dispute of fact

that, if resolved in Lalumiere’s favor, would be sufficient to support a judgment

against appellees on the IIED claim.

Likewise, the district court correctly found no triable issue of fact to support

the false imprisonment claim. Lalumiere relies on Moore v. Pay’N Save Corp.,

581 P.2d 159, 163 (Wash. Ct. App. 1978), which states, “If the words and conduct

are such as to induce a reasonable apprehension of force and the means of coercion

are at hand, a person may be as effectually restrained and deprived of liberty as by

prison bars.” It may be that Lalumiere, as an employee, felt compelled to comply

with her supervisor’s instruction to go to the conference room, at the risk of

suffering negative employment consequences. Lalumiere points to no authority,

however, recognizing a “false imprisonment” claim predicated on an employee’s

decision to follow instructions to go to, or remain in, a particular location. While

Lalumiere expresses she subjectively felt fear, no reasonable trier of fact could

conclude appellees’ conduct induced a reasonable apprehension of force or that

Lalumiere was otherwise falsely imprisoned.

Lalumiere’s claims under the Federal Family Medical Leave Act (FMLA),

29 USC § 2615(a)(1), and the corresponding provisions of the Washington Family

Leave Act, WASH. REV. CODE § 49.78.300(1)(a), also present no triable issues of

3 17-35935 fact. Section 2615(a)(1) of the FMLA makes it unlawful for an employer to

“interfere with, restrain or deny” an employee’s exercise or attempted exercise of

any right under the act, but it “provides no relief unless the employee has been

prejudiced by the violation.” Ragsdale v. Wolverine World Wide, Inc., 535 U.S.

81, 89 (2002). The Washington Family Leave Act “must be construed to the extent

possible in a manner that is consistent with similar provisions, if any, of the

[FMLA], . . . and that gives consideration to the rules, precedents, and practices of

the federal department of labor relevant to the federal act.” WASH. REV. CODE §

49.78.410. The undisputed evidence that Lalumiere was granted paid leave within

approximately fifteen minutes or less of first requesting it, precludes any

conclusion by a reasonable trier of fact that appellees violated federal or state

medical leave law.

The district court also did not err in rejecting Lalumiere’s claim of negligent

hiring, which requires a plaintiff to prove (1) the employer knew or, in the exercise

of ordinary care, should have known of its employee’s unfitness; and (2) the

negligently hired employee proximately caused injuries to plaintiff. Carlsen v.

Wackenhut Corp., 868 P.2d 882, 886 (Wash. Ct. App. 1994). Lalumiere presents

no facts or law that would preclude appellees from employing a yet-to-be licensed

“administrator in training,” and has not shown she suffered any harm as a result of

that hiring.

4 17-35935 Finally, regardless of the precise statutory or common law basis of the

claims, no reasonable fact-finder could conclude Lalumiere suffered actionable

retaliation. The record is devoid of evidence that appellees had knowledge of

whistleblowing activity to which they responded with adverse employment action

against Lalumiere.

AFFIRMED.

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