Roger Leishman, V. Kathryn Leathers

• Court: Court of Appeals of Washington
• Decided: January 26, 2026
• Docket: 87141-2
• Status: Unpublished

Opinion

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

ROGER LEISHMAN, No. 87141-2-I

Appellant,

v.

KATHRYN LEATHERS, NOAH PURCELL, JEFFREY RUPERT, NATHAN BAYS, JEFFREY GRANT, UNPUBLISHED OPINION TIP WONHOFF, OFFICE OF THE GOVERNOR, OFFICE OF THE ATTORNEY GENERAL, and DEPARTMENT OF ENTERPRISE SERVICES,

Respondents.

BOWMAN, A.C.J. — Roger Leishman sued Kathryn Leathers, Noah Purcell,

Jeffrey Rupert, Nathan Bays, Jeffrey Grant, Tip Wonhoff, the Office of the

Governor, the Office of the Attorney General (AGO), and the Department of

Enterprise services (collectively Defendants) for violating the Washington Law

Against Discrimination (WLAD), chapter 49.60 RCW; negligence; negligent

infliction of emotional distress (NIED); and outrage. Leishman alleged that the

Defendants triggered his posttraumatic stress disorder (PTSD) by not promptly

responding to his Public Records Act (PRA), chapter 42.56 RCW, requests and

by using “[g]aslighting lawyer tactics” while defending against his PRA lawsuit. No. 87141-2-I/2

The trial court dismissed Leishman’s claims under CR 12(b)(6), and he appeals.

We affirm.

FACTS

Leishman is an attorney licensed to practice in the state of Washington. In

July 2015, Leishman began working for the AGO as chief legal advisor to

Western Washington University. Shortly after starting the job, he began

exhibiting “serious Body-Focused Repetitive behaviors (including

trichotillomania), anxiety, bruxish, insomnia, impaired Executive Function, and

other physical and mental symptoms.” In November, Leishman’s physician

diagnosed him with “PTSD and serious codependency,” stemming from his

“traumatic experiences as a gay Mormon youth.”

In January 2016, Leishman asked for workplace accommodations from

the AGO. He requested “additional time to complete tasks when his Executive

Function is impaired by substantial stress or triggers, and protection from the

impact of interactions with individuals whose conduct has triggered significant

PTSD symptoms.” The AGO denied his accommodation request.

Leishman then filed a formal complaint with the AGO, alleging sexual

orientation discrimination. On March 7, 2016, the AGO placed him on “home

assignment” and hired Ogden Murphy Wallace (Ogden) to investigate. Based on

Leishman’s workplace performance and Odgen’s report that no evidence

supported his discrimination complaint, the AGO terminated Leishman’s

employment on June 1, 2016. See Leishman v. Ogden Murphy Wallace, PLLC,

196 Wn.2d 898, 901, 479 P.3d 688 (2021).

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Leishman then sued the AGO. Leishman, 196 Wn.2d at 901. The parties

settled, and Leishman released his claims against the state and its officers,

agents, employees, agencies, and departments. Id. at 901-02. In May 2017,

Leishman sued Ogden and its investigator. The trial court dismissed Leishman’s

lawsuit and our Supreme Court affirmed, holding that Washington’s anti-SLAPP1

statute barred his claims. Id. at 902, 911.

In July 2019 and again in February 2020, Leishman filed several ethics

complaints against the AGO attorneys who coordinated the investigation with

Ogden. See Leishman v. Reynolds, No. 57122-6-II, slip op. at 4-5 (Wash. Ct.

App. Dec. 26, 2023) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%

2057122-6-II%20Unpublished%20Opinion.pdf. The head of the Washington

State Executive Ethics Board, Kathryn Reynolds, refused to accept both sets of

complaints because they did not meet the requirements for filing. Id. at 5-6.

Leishman then petitioned for mandamus against Reynolds, seeking to compel

her to accept his complaints. Id. at 2. The court dismissed the petition, and

Division Two affirmed. Id. at 2, 14.

In April 2020, Leishman sued the AGO, various AGO agents and their

spouses, Reynolds and her spouse, the Office of Risk Management, Western

Washington University and its former president, and Ogden, listing 11 causes of

action. See Leishman v. Wash. Att’y Gen.’s Off., No. 2:20-CV-00861-RAJ, 2021

WL 1140262, at *2 (W.D. Wash. Mar. 25, 2021) (court order). Defendant Jeffery

Grant served as counsel for the state and as the primary point of contact with

1 Strategic lawsuit against public participation, RCW 4.24.510.

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Leishman. Ultimately, the case was removed to federal court, which dismissed

Leishman’s civil conspiracy and misrepresentation claims. Id. at *2, *10.

In October 2020, Leishman e-mailed PRA requests to the Office of the

Governor. See Leishman v. Reynolds, No. 58929-0-II, slip op. at 4 (Wash. Ct.

App. Dec. 23, 2025) (unpublished), https://www.courts.wa.gov/opinions/pdf/D2%

2058929-0-II%20Unpublished%20Opinion.pdf. But the Office of the Governor

did not receive the requests. Id. In November 2020, April 2021, and May 2021,

Leishman e-mailed Grant and the governor’s general counsel, Defendant

Kathryn Leathers, referencing those requests. Id. at 4-5. Leathers and Grant

denied receiving the e-mails. Id. Leishman claims he sent another e-mail to

Leathers in September 2021 and attached the October 2020 records requests.

Id. at 6. But the Governor’s office again said there was no attachment. Id. In

October 2021, Leishman successfully sent an e-mail with the attached records

requests, and the Governor’s Office responded to his requests. Id. at 6-7.

Leishman then sued the Office of the Governor, alleging violations of the

PRA. Leishman, No. 58929-0-II, slip op. at 7. Grant was still representing the

state, and the case proceeded to a bench trial. Id. at 6. At trial, Leathers

testified about the exchange of e-mails and that the Office of the Governor did

not receive Leishman’s requests for documents until October 2021. Id. The trial

court dismissed Leishman’s claims, concluding that the Governor’s Office did not

violate the PRA when it responded to Leishman’s requests in October 2021. Id.

at 10. Division Two of this court agreed. Id. at 21.

4 No. 87141-2-I/5

On April 16, 2024, Leishman sued the Defendants in King County

Superior Court, alleging violations of the WLAD, negligence, NEID, and outrage.2

Specifically, Leishman claimed that Grant “neglected communications from

Leishman,” “failed to follow through on commitments he made to Leishman,”

“blamed Leishman for Defendants’ neglect,” and “gave false and conflicting

explanations to Leishman, including false representations regarding delivery

failures by the [s]tate’s e[-]mail servers.” Leishman also alleged Grant made

“knowingly false” factual representations to the court about Leishman’s e-mails.

Leishman said he complained to Grant’s supervisors but they deemed his

complaints “frivolous” and refused to replace Grant, even though “[m]ultiple

tribunals have recognized that Defendant Grant’s conduct triggers Leishman’s

disability symptoms.”

The State moved to dismiss Leishman’s complaint under CR 12(b)(6). On

June 28, 2024, the trial court heard oral argument. It granted the State’s motion

and dismissed Leishman’s WLAD, negligence, NEID, and outrage claims with

prejudice.3 On August 19, 2024, the trial court entered final judgment under CR

54(b) in favor of the Defendants.

Leishman appeals.

2 Again, Leishman also alleged that the Office of the Governor violated the PRA.

The trial court transferred his PRA claim to Thurston County Superior Court. As a result, the PRA claims are not the subject of this appeal. 3 On August 6, 2024, Leishman amended his complaint to allege two claims

under Title II of the Americans with Disabilities Act of 1990, 42 U.S.C. section 12101, against only state agencies the Office of the Governor, the AGO, and the Department of Enterprise Services. The state removed the Title II claims to federal court. The court then dismissed the new claims. Leishman v. Off. of the Governor, No. 2:24-CV-01363- JNW, 2025 WL 2495063 (W.D. Wash. Aug. 29, 2025) (court order).

5 No. 87141-2-I/6

ANALYSIS

Leishman argues the trial court erred by dismissing his WLAD,

negligence, NEID, and outrage claims under CR 12(b)(6). The Defendants argue

that his claims fail as a matter of law. We agree with the Defendants.

We review a trial court’s decision to dismiss a case under CR 12(b)(6) de

novo. San Juan County v. No New Gas Tax, 160 Wn.2d 141, 164, 157 P.3d 831

(2007). We will dismiss a complaint under CR 12(b)(6) if it fails to state a claim

on which the court can grant relief, but we do so “ ‘sparingly and with care.’ ”

Tenore v. AT & T Wireless Servs., 136 Wn.2d 322, 329-30, 962 P.2d 104 (1998)

(quoting Hoffer v. State, 110 Wn.2d 415, 421, 755 P.2d 781 (1988)). Dismissal is

appropriate only if no set of facts consistent with the complaint would entitle the

plaintiff to relief. Jackson v. Quality Loan Serv. Corp. of Wash., 186 Wn. App.

838, 843, 347 P.3d 487 (2015). We presume the facts in the complaint are true

and reject the motion to dismiss if “ ‘[a]ny hypothetical situation conceivably

raised by the complaint . . . is legally sufficient to support plaintiff’s claim.’ ” Id.4

(quoting Bravo v. Dolsen Cos., 125 Wn.2d 745, 750, 888 P.2d 147 (1995)).

1. WLAD

Leishman argues the trial court erred by dismissing his WLAD claim. We

disagree.

The WLAD prohibits discrimination based on disability in “any place of

public resort, accommodation, assemblage, or amusement.” RCW

49.60.030(1)(b), .215(1)(c). To show discrimination in a place of public

4 Internal quotation marks omitted.

6 No. 87141-2-I/7

accommodation, the plaintiff must establish that (1) the plaintiff is a member of a

protected class, (2) the defendant’s establishment is a place of public

accommodation, (3) the defendant discriminated against the plaintiff when it did

not treat the plaintiff in a manner comparable to the treatment it provides to

persons outside that class, and (4) the plaintiff’s protected status was a

substantial factor that caused the discrimination. Floetling v. Grp. Health Coop.,

192 Wn.2d 848, 853, 434 P.3d 39 (2019) (citing Fell v. Spokane Transit Auth.,

128 Wn.2d 618, 637, 911 P.2d 1319 (1996)).

In his complaint, Leishman alleged that the Office of the Governor failed to

ensure his “equal participation in the accommodations, programs, services, and

activities of the [s]tate” because it failed to take appropriate steps to ensure that

its communications with him about his PRA requests were “as effective as their

communications with others.” He further alleged the Office of the Governor failed

to “make reasonable modifications in their policies, practices, or procedures to

avoid discrimination on the basis of disability.” But Leishman misconstrues the

nature of a WLAD public accommodations claim.

Under the WLAD, a place of accommodation need not provide extra

services to persons with a disability if it does not deny full access to services

already provided. Commc’n Access Project v. Regal Cinemas, Inc., 173 Wn.

App. 174, 189, 293 P.3d 413 (2013). And Leishman does not allege facts

showing that the Office of the Governor denied him access to their services

based on his disability. Indeed, Division Two of our court determined that the

Office of the Governor timely and adequately responded to Leishman’s PRA

7 No. 87141-2-I/8

requests. Leishman, No. 58929-0-II, slip op. at 10, 21. As a result, his WLAD

claim fails.

The trial court did not err by dismissing Leishman’s WLAD claim.5

2. Negligence

Leishman argues the trial court erred by dismissing his negligence claim.

We disagree.

To establish negligence, a plaintiff must show (1) the existence of a duty,

(2) breach of that duty, (3) resulting injury, and (4) proximate cause. Ranger Ins.

Co. v. Pierce County, 164 Wn.2d 545, 552, 192 P.3d 886 (2008). When

assessing a negligence claim, “the threshold question is whether a defendant

owes a duty of care to the injured plaintiff.” Schooley v. Pinch’s Deli Mkt., Inc.,

134 Wn.2d 468, 474, 951 P.2d 749 (1998). The existence of a legal duty is a

question of law and depends on mixed considerations of logic, common sense,

justice, policy, and precedent. Christensen v. Royal Sch. Dist. No. 160, 156

Wn.2d 62, 67, 124 P.3d 283 (2005). In general, courts will find a duty where

reasonable people would recognize it and agree that it exists. Tallariti v. Kildare,

63 Wn. App. 453, 456, 820 P.2d 952 (1991).

Citing Mancini v. City of Tacoma, 196 Wn.2d 864, 879, 479 P.2d 656

(2021),6 Leishman argues that the Defendants had a duty to refrain from causing

“ ‘foreseeable harm in interactions’ ” with him. And the Defendants’ “gaslighting”

5 Because we conclude that Leishman fails to show discrimination, we need not

address the Defendants’ argument that the Office of the Governor is not a place of accommodation for the purpose of responding to PRA requests. 6 Quoting Beltran-Serrano v. City of Tacoma, 193 Wn.2d 537, 550, 442 P.3d 608

(2019).

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behavior throughout his PRA lawsuit breached that duty. But the litigation

privilege protects participants in a judicial proceeding against civil liability for

statements made during litigation so long as the statements relate to the

litigation. Tavaglione v. Dehkhoda & Qadri, P.C., 34 Wn. App. 2d 515, 520, 568

P.3d 1158 (2025). And the privilege includes the statements of attorneys. Id. at

521. Here, the alleged communications identified by Leishman as giving rise to

his negligence claim occurred during and were related to the PRA litigation.

The trial court did not err by dismissing Leishman’s negligence claim.7

3. Outrage

Finally, Leishman alleges the trial court erred by dismissing his outrage

claim. Again, we disagree.

A claim for outrage, or intentional infliction of emotional distress,8 requires

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

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

emotional distress.’ ” Trujillo v. Nw. Tr. Servs., Inc., 183 Wn.2d 820, 840, 355

7 Leishman also claimed that the Defendants breached their duty to avoid

causing him foreseeable harm when they failed to timely respond to his PRA requests. But even assuming the Defendants owed Leishman a duty in that context, Division Two of our court determined that the Defendants complied with their PRA obligations in response to Leishman’s requests. Leishman, No. 58929-0-II, slip op. at 10, 21. So, Leishman fails to allege facts supporting a breach of that duty. And as much as Leishman alleges the court erred by dismissing his NEID claim, that assertion also rests on alleged negligent acts arising from conduct during litigation. So, Leishman’s NEID claim fails for the same reason as his negligence claim. 8 See Lyons v. U.S. Bank Nat’l Ass’n, 181 Wn.2d 775, 792, 336 P.3d 1142

(2014).

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P.3d 1100 (2015)9 (quoting Lyons v. U.S. Bank Nat’l Ass’n, 181 Wn.2d 775, 792,

336 P.3d 1142 (2014)). An outrage claim must allege conduct “ ‘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.10 (quoting Lyons, 181 Wn.2d at 792).

Leishman alleged in his complaint that the Defendants outrageously

“neglected [his] communications,” “failed to follow through on commitments,”

“blamed [him] for [their] neglect,” and gave “false representations regarding

delivery failures by the [s]tate’s e[-]mail servers” when he requested records

under the PRA. But, as discussed above, Division Two of our court has

determined that the Defendants properly responded to Leishman’s PRA

requests. Leishman, No. 58929-0-II, slip op. at 10, 21. So, Leishman fails to

show that their conduct was atrocious and utterly intolerable.

Leishman also alleged that the Defendants engaged in outrageous

conduct by making “knowingly false” factual representations to the court when

litigating his PRA case. But again, even assuming Leishman’s allegations are

true, those statements are covered by the litigation privilege as discussed above.

As a result, Leishman’s fails to allege facts sufficient to support his intentional

infliction of emotional distress claim.

The trial court did not err by dismissing Leishman’s outrage claim.

9 Internal quotation marks omitted.

10 Internal quotation marks omitted.

10 No. 87141-2-I/11

4. Attorney Fees

Leishman requests attorney fees on appeal under RCW 49.60.030(2) and

RAP 181.1. Under RAP 18.1(a), we may award attorney fees on appeal if

“applicable law grants to a party the right to recover reasonable attorney fees.”

And under RCW 49.60.030(2),

[a]ny person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction to enjoin further violations, or to recover the actual damages sustained by the person, or both, together with the cost of suit including reasonable attorneys’ fees or any other appropriate remedy authorized by this chapter.

Because Leishman is not the prevailing party, he is not entitled to attorney

fees.

5. Sanctions

The Defendants asks us to impose sanctions, including attorney fees,

under RAP 18.9(a) because Leishman’s appeal is frivolous.

Under RAP 18.9(a), we may order a party who files a frivolous appeal to

pay sanctions. An appeal is frivolous if it “presents no debatable issues upon

which reasonable minds might differ” and “is so devoid of merit that there is no

possibility of reversal.” Lutz Tile, Inc. v. Krech, 136 Wn. App. 899, 906, 151 P.3d

219 (2007). While Leishman’s suit lacks merit, we decline to say that it is

frivolous. We deny the Defendants’ request for sanctions.

In sum, because Leishman fails to plead facts sufficient to support his

claims, we affirm the trial court’s CR 12(b)(6) order dismissing those claims with

11 No. 87141-2-I/12

prejudice.11 And we deny both parties’ requests for fees.

WE CONCUR:

11 Because we conclude that Leishman’s claims fail as a matter of law, we

decline to address the Defendants’ arguments that Leishman’s claims are barred by issue or claim preclusion.