In Marin v. King County, 194 Wn.App. 795 (Wash.App. Div. 1 2016), review denied, 186 Wash.2d 1028, 385 P.3d 124 (Table) (Wash. 2016), Ignacio Marin appealed the trial-court’s dismissal of his lawsuit against his former employer, King County (County) that was based upon claims of disparate treatment, hostile work environment, and failure to accommodate disabilities. Because he failed to support several assignments with adequate argument, citations to the record, and legal authority, and the remaining assignments lacked merit, the appellate court affirmed.
SNAPSHOT: This is a case summary of Marin v. King County, 194 Wn.App. 795 (Wash.App. Div. 1 2016), review denied, 186 Wash.2d 1028, 385 P.3d 124 (Table) (Wash. 2016). It contains multiple sections. The following section is a snapshot of key data including case citation, description, categories, and impact on Legal Trees. (TIP: Look for the green button throughout this article for more helpful information)
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I. SNAPSHOT
case citation
Marin v. King County, 194 Wn.App. 795 (Wash.App. Div. 1 2016), reviewed denied, 186 Wash.2d 1028, 385 P.3d 124 (Table) (Wash. 2016).
Appellant: MARIN
Respondent: KING COUNTY
DESCRIPTION
“Ignacio Marin appeals the trial-court’s dismissal of his lawsuit against his former employer, King County (County) that was based upon claims of disparate treatment, hostile work environment, and failure to accommodate disabilities while he worked in the County’s Wastewater Treatment Division (WTD).” Marin, 194 Wn.App. at 801.
“The trial court dismissed Marin’s disparate treatment claim on summary judgment.” Id.
“After the close of evidence at trial, the court directed a verdict for the County on Marin’s claim of hostile work environment based on retaliation.” Id.
“The jury then rendered unanimous defense verdicts on the remainder of Marin’s hostile work environment claim and on his failure-to-accommodate claim.” Id.
“On appeal, Marin makes 18 assignments of error.” Id.
“Because he fails to support several assignments with adequate argument, citations to the record, and legal authority, and the remaining assignments lack merit, we affirm.” Id.
CATEGORIES
- Discovery Sanctions
- Evidence: Laying Foundation
- Jury Selection
- Standards of Review
- Washington State Privacy Act
- WLAD: Disparate Treatment
- WLAD: Failure to Accommodate
- WLDA: Hostile Work Environment Based on Retaliation
- WLAD: Retaliation
LEGAL TREEs
T.B.D.
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FACTS SECTION: The following section contains material facts and evidence that the Court considered in this case.
II. FACTS
Substantive Facts (44 Items):
The substantive facts for this case are as follows:
[1] Ignacio Marin immigrated to the United States from Peru in 1975.
[2] In 1982, he began working as an operator for WTD at the West Point Treatment Plant in Seattle.
[3] Marin suffers from anxiety, depression, and panic attacks.
[4] Operators at King County wastewater treatment plants work on crews of five or six people led by a shift supervisor.
[5] They have responsibility for various types of wastewater treatment equipment, some of it hazardous.
[6] They also respond to emergencies, ensure compliance with safety procedures, and clean the plant.
[7] Marin joined “D Crew” at West Point in 2007.
[8] His supervisor was James Sagnis, who at times appointed Mark Horton, the most experienced crew member, as a temporary supervisor.
[9] Marin had a turbulent relationship with Sagnis and Horton.
[a] In April 2009, Horton complained to Sagnis that Marin refused to follow a ” priority directive” that the plant manager had issued.
[b] The directive requested that all employees assist in quickly cleaning the plant’s preaeration tanks.
[c] Marin worked on the priority tasks for less than an hour and spent most of two days performing other, low-priority work.
[d] When Horton confronted Marin, Marin told him the preaeration work made him ill.
[e] Horton informed Sagnis that he suspected Marin was using sickness as an excuse to avoid doing the unpleasant priority tasks.
[f] Marin secretly recorded two conversations with Sagnis about these accusations.
[g] In May, Sagnis gave Marin a “documented oral reprimand.”
[10] Marin promptly filed a union grievance of the reprimand.
[11] The County later investigated the incident, concluded that the reprimand was based on a misunderstanding, and withdrew it.
[12] In June, Marin complained to WTD’s human resources department (HR), alleging a hostile work environment.
[13] The County hired an independent investigator, Karen Sutherland, to investigate these complaints.
[14] She found no evidence to support Marin’s accusations.
[15] The same month, following his conflict with Sagnis, Marin requested, and the County granted, a transfer to Jim Alenduff’s “C Crew” at the South Plant in Renton.
[16] This assignment was initially temporary.
[17] Meanwhile, that October, Sagnis told an HR staff member that Marin had “shit all over the crew” and “it would not be pleasant” if he returned.
[18] The County gave Sagnis a written reprimand for threatening retaliation against Marin.
[19] Like other West Point operators, Marin considered South Plant a desirable assignment because of its more convenient location.
[20] Because of the size of South Plant and its differences from West Point, however, Marin needed training to be proficient in the new plant.
[21] At his crew’s request, Alenduff restricted Marin’s work duties while his assignment was temporary.
[22] He later explained that Marin repeatedly made errors on C Crew that put crew members in “jeopardy.”
[23] In response, Marin complained to HR that he was not receiving meaningful assignments, the crew did not want him working in their areas, and they were aggressive toward him when he made mistakes.
[24] Marin alleged that members of C Crew harassed, discriminated against, and retaliated against him.
[25] The County again hired Sutherland to investigate, but this time Marin did not cooperate.
[26] Sutherland again found no evidence of discrimination.
[27] As Marin’s reassignment to South Plant had been temporary, the County offered to return him to West Point.
[28] But after the conflicts on C Crew and after meeting “B Crew” supervisor Cheryl Read, Marin decided to remain at South Plant and move to B Crew. He began on that crew in late October 2009.
[29] Meanwhile, through his attorney, Marin anonymously reported to the County that Alenduff had shown obscene computer images to coworkers, including a female custodian.
[30] Alenduff was eventually forced to resign.
[31] In early 2010, Marin asked the County to make his transfer to Read’s crew permanent to accommodate his posttraumatic stress disorder (PTSD). The County agreed in April 2010.
[32] While on B Crew, Marin repeatedly told HR and disability services he was happy with his new supervisor and crew and did not need more accommodations.
[33] In December 2010, however, Marin did not follow the correct procedure to “lock out” and “tag out” a sewage pump.
[34] Marin approached Read and told her about the incident on the same day.
[35] Read saw it as a basic error for someone with Marin’s experience.
[36] Marin perceived Read to be yelling at him and became anxious.
[37] He told her he had to visit his doctor and left early.
[38] Read did not see Marin again until January 1, 2011.
[39] That week, she and Marin walked through the procedure he should have followed, and she gave him a “Teach/Lead/Coach” memo, or TLC. A TLC is not discipline, though management may base future discipline on a TLC.
[40] Marin took medical leave on January 5.
[41] The County asked for medical information and tried to engage him in its process.
[42] Marin sent notes from two doctors saying that work had aggravated his ” acute situational stress” and PTSD.
[43] The County requested more information. Marin did not provide it.
[44] Instead, he gave notice he would retire in May 2011.
Marin v. King County, 194 Wn.App. 795, 801-04 (Wash.App. Div. 1 2016), review denied, 186 Wash.2d 1028, 385 P.3d 124 (Table) (Wash. 2016) (footnotes omitted).
Procedural Facts (19 Items)
The procedural facts for this are as follows:
[1] Marin sued the County in July 2011.
[2] He alleged six causes of action: disparate treatment, hostile work environment, and failure to accommodate disabilities under the Washington Law Against Discrimination (WLAD), wrongful discharge, and both intentional and negligent infliction of emotional distress.
[3] At the County’s request, the court found that Marin’s recordings of his conversations with Sagnis violated the privacy act and excluded the recordings and Marin’s observations of the conversations.
[4] The court also sanctioned Marin’s counsel $5,000 for failing to disclose the recordings’ existence until after her firm deposed Sagnis.
[5] After discovery, the trial court dismissed on summary judgment four of Marin’s claims: disparate treatment under WLAD, wrongful discharge, and both types of emotional distress.
[6] Before trial, the court excluded evidence about allegations that occurred before the limitations period began in May 2008, with limited exceptions.
[7] The court also ruled that Marin could not offer evidence that any coworker retaliated against him without first laying the foundation that the coworker was aware of Marin’s discrimination complaint.
[8] The parties tried the case over 15 days in September 2014.
[9] During voir dire, juror 71 disclosed on his questionnaire and in response to further questions from Marin that he was a “[g]ood friend with a King County prosecutor.”
[10] The trial court declined to dismiss juror 71 at that point.
[11] During trial, the trial court struck a statement by Marin’s coworker Lloyd Holman that he heard from unidentified coworkers that Marin had complained against Alenduff.
[12] The court had conditioned that statement’s admission on Marin “t[ying] it up’ with evidence of the speakers” identities and the statements’ timing–evidence Marin did not provide.
[13] Later, the trial court allowed the County’s expert, Dr. McClung, to testify that Marin had ‘adjustment disorder with paranoid personality traits.'”
[14] But the court excluded any “comment on credibility” from McClung, such as testimony that Marin “is likely to perceive harassment.” Id.
[15] At the close of evidence, the court granted the County’s request for a directed verdict in part.
[16] It dismissed the retaliation component of Marin’s hostile work environment claim but allowed the jury to decide the rest of his hostile work environment claim and his accommodation claim.
[17] The jury then rendered unanimous verdicts for the County on those claims.
[18] The court awarded the County $14,378.37 in costs.
[19] Marin appeals.
Marin, 194 Wn.App. at 804-05 (alterations in original).
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GENERAL RULES SECTION: The following section contains general rules. Our website uses the term “general rules” to mean the Court’s statement of relevant laws in this case.
III. GENERAL RULES
The General Rules Section for this case includes the following topics:
1. Discovery Sanctions
2. Evidence
3. Jury Selection
4. Washington Law Against Discrimination (WLAD)
4(A) WLAD: Disparate Treatment
4(B) WLAD: Failure to Accommodate
4(C) WLAD: Hostile Work Environment
1. DISCOVERY SANCTIONS
The Court reviews “for abuse of discretion a trial court’s choice of sanctions for violation of a discovery order.” Marin, 194 Wn.App. at 805-06 (citing Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997)).
(A) THE PRIVACY ACT — RCW 9.73.030
“To determine whether a conversation is private under the privacy act, … [the court] consider[s][:]
(1) the subject matter of the communication,
(2) the location of the participants,
(3) the potential presence of third parties,
(4) the role of the interloper,
(5) whether the parties ‘manifest a subjective intention that it be private,’ and
(6) whether any subjective intention of privacy is reasonable.
Id. at 806 (citing State v. Mankin, 158 Wn.App. 111, 118, 241 P.3d 421 (2010) (quoting State v. Christensen, 153 Wn.2d 186, 193, 102 P.3d 789 (2004))) (paragraph formatting and emphasis added).
VIOLATION REQUIRES EXCLUSION: “A violation of the privacy act requires exclusion of all evidence of the contents of the illegally recorded conversations.” Id. (citing RCW 9.73.050; Schonauer v. DCR Entm’t, Inc., 79 Wn.App. 808, 819, 905 P.2d 392 (1995)).
(B) TRIAL COURT MAY CONSIDER HISTORY OF MISCONDUCT in determining sanctions
“A trial court may consider an attorney’s history of misconduct in determining appropriate sanctions.” Id. at 807 (citing In re Disciplinary Proceeding Against Cohen, 150 Wn.2d 744, 760 n.8, 761-62, 82 P.3d 224 (2004)).
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2. EVIDENCE
(a) COWORKER RETALIATION: LAYING THE FOUNDATION
An employment-discrimination plaintiff must first lay the foundation that the coworker was aware of plaintiff’s discrimination complaint “for their acts to be retaliatory under WLAD.” See Marin, 194 Wn.App. at 813-14 (citing Currier v. Northland Servs., Inc., 182 Wn.App. 733, 746-47, 332 P.3d 1006 (2014), review denied, 182 Wn.2d 1006 (2015)).
(B) RELEVANCY CONDITIONED ON FACT
“The trial court may condition admission of a party’s evidence on the party’s later introduction of facts necessary to make that evidence relevant.” Marin, 194 Wn.App. at 814 (citing ER 104(b)).
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3. JURY SELECTION
(A) TRIAL COURT HAS DISCRETION TO GRANT OR DENY FOR-CAUSE CHALLENGES
“The trial court has discretion to grant or deny a for-cause challenge.” Marin, 194 Wn.App. at 815 (citing State v. Wilson, 141 Wn.App. 597, 606, 171 P.3d 501 (2007)). “That discretion includes assuring that an impartial jury is selected with reasonable expedition.” Id. (citing State v. Brady, 116 Wn.App. 143, 147, 64 P.3d 1258 (2003)) (internal citation and quotation marks omitted).
(B) TRIAL COURT HAS discretion to adopt suitable process OR mode of proceeding WHEN NOT SPECIFIED BY STATUTE
“When ‘the course of proceeding is not specifically pointed out by statute,’ the trial court may adopt ‘any suitable process or mode of proceeding … which may appear most conformable to the spirit of the laws.'” Id. (citing RCW 2.28.150).
(C) A PARTY ACCEPTING JUROR WITHOUT EXERCISING AVAILABLE CHALLENGES CANNOT LATER CHALLENGE THAT JUROR’S INCLUSION
“[A] party accepting a juror without exercising its available challenges cannot later challenge that juror’s inclusion.” Id. (citing Dean v. Grp. Health Coop. of Puget Sound, 62 Wn.App. 829, 836, 816 P.2d 757 (1991)) (alteration in original) (internal quotation marks omitted).
(D) SHOWING JUROR MISCONDUCT
“Juror misconduct is a fact question within the trial court’s discretion.” Id. at 820 n.47 (citing Dean v. Grp. Health Coop. of Puget Sound, 62 Wn.App. 829, 837, 816 P.2d 757 (1991)). “To show misconduct, a party must prove
(1) that a juror failed to answer honestly a material question on voir dire and
(2) that a correct response would have provided a valid basis for a challenge for cause.
Id. (citing In re Det. of Broten, 130 Wn.App. 326, 337, 122 P.3d 942 (2005) (emphasis omitted) (quoting McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984))) (internal quotation marks omitted).
(E) WHEN JUROR MISCONDUCT PREVENTS LEARNING OF A JUROR’S BIAS, PARTY DOES NOT WAIVE RIGHT TO CHALLENGE BY FAILING TO QUESTION DURING VOIR DIRE
“But where a juror’s misconduct prevents a party from learning of the juror’s bias, the party does not waive its right to challenge him by failing to question him during voir dire.” Id. (citing Broten, 130 Wn.App. at 337, 122 P.3d 942 (2005)).
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4. WASHINGTON LAW AGAINST DISCRIMINATION (WLAD)
SUMMARY JUDGMENT: The Court “review[s] a grant of summary judgment de novo, considering the same record as the trial court in the light most favorable to the nonmoving party.” Marin, 194 Wn.App. at 808 (citing Camicia v. Howard S. Wright Constr. Co., 179 Wn.2d 684, 693, 317 P.3d 987 (2014); Young v. Key Pharm., Inc., 112 Wn.2d 216, 226, 770 P.2d 182 (1989)). “Summary judgment is appropriate only when there is no genuine issue as to any material fact.” Id. (citing CR 56(c); Camicia, 179 Wn.2d at 693).
MOTIONS FOR DIRECTED VERDICTS: “We review a ruling on a motion for directed verdict under the same standard as the trial court, affirming the directed verdict when there is no substantial evidence or reasonable inference to sustain a verdict for the nonmoving party.” Id. (citing Guijosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 915, 32 P.3d 250 (2001)) (internal citation and quotation marks omitted).
THE MCDONNELL DOUGLAS BURDEN-SHIFTING FRAMEWORK (“McDonnell Douglas Framework”): The McDonnell Douglas Framework has three steps, as follows:
STEP 1 — THE PRIMA FACIE CASE: The plaintiff must make a prima face showing. See id at 808-09.
STEP 2 — THE LEGITIMATE NONDISCRIMINATORY REASON: If the plaintiff “makes this prima facie showing, the burden shifts to the … [defendant] to show legitimate, nondiscriminatory reasons for its adverse employment action.” Id. at 809 (citing Kirby v. City of Tacoma, 124 Wn.App. 454, 464, 98 P.3d 827 (2004)).
STEP 3 — PRETEXT: “If the … [defendant] produces …evidence [of legitimate nondiscriminatory reasons], the burden returns to … [the plaintiff] to show that the … [defendant’s] reasons are pretextual.” Id. “This means they (1) have no basis in fact, (2) were not really motivating factors for the decision, or (3) were not motivating factors in employment decisions for other employees in the same circumstances.” Id. (citing Kirby, 124 Wn.App. at 467).
(A) DISPARATE TREATMENT
(EDITOR’S NOTE: In this case, the Plaintiff asserted two disparate treatment claims, as follows: (1) disparate treatment based on protected status; and (2) disparate treatment by retaliation for protected activity. The Court’s formulation of the prima facie case for each claim follows, respectively:)
(1) Disparate Treatment Based on Protected Status: The Prima Facie Case
To establish a prima facie case of disparate treatment based on protected status, the plaintiff must show:
a) Plaintiff is a member of one or more protected classes;
b) Plaintiff suffered a tangible adverse employment action;
c) The action occurred under circumstances that raise a reasonable inference of unlawful discrimination; and
d) Plaintiff was doing satisfactory work.
See id. at 808-09.
THE “ADVERSE EMPLOYMENT ACTION” ELEMENT: Adverse employment actions “means ‘a significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.'” Id. at 808 (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)).
THE “REASONABLE INFERENCE OF UNLAWFUL DISCRIMINATION” ELEMENT (COMPARATORS OR SIMILARLY-SITUATED EMPLOYEES): (EDITOR’S NOTE: Employment discrimination plaintiffs often establish this element by using similarly situated nonprotected co-workers for comparison.) Such “[s]imilarly situated employees must have the same supervisor, be subject to the same standards, and have engaged in the same conduct.” Id. at 810 (citing Kirby, 124 Wn.App. at 475 n.16; see also Clark v. Runyon, 218 F.3d 915, 918 (8th Cir. 2000)).
ELEMENTS ARE NOT ABSOLUTE BY VARY BASED ON RELEVANT FACTS: “The elements of a prima facie case for disparate treatment based on protected status are not absolute but vary based on the relevant facts.” Id. at 808 (citing Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 362-63, 753 P.2d 517 (1988)).
(2) Disparate Treatment by Retaliation for Protected Activity
To establish a prima facie case of retaliation, the plaintiff must show:
a) that he engaged in statutorily protected activity;
b) that he suffered an adverse employment action; and
c) that his protected activity caused the … [defendant/employer] to take the adverse action against him.
See id. at 811 (citing RCW 49.60.210(1); Currier v. Northland Servs., Inc., 182 Wn.App. 733, 742, 332 P.3d 1006 (2014), review denied, 182 Wn.2d 1006 (2015)).
(B) FAILURE TO ACCOMMODATE
ELEMENT #1: MEDICAL CONDITION THAT SUBSTANTIALLY LIMITS ABILITY TO PERFORM THE JOB: “To bring a claim for failure to accommodate, … [the plaintiff must] show he had a medical condition that substantially limited his … ability to perform the job.” Id. at 816 (citing Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 145, 94 P.3d 930 (2004) (quoting Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 193, 23 P.3d 440 (2001)) (internal quotation marks omitted).
ELEMENT #2: QUALIFIED TO PERFORM THE ESSENTIAL FUNCTIONS OF THE JOB: “[The plaintiff] … also needed to show he was qualified to perform the essential functions of the job.” Id. at 816-17 (citing Davis v. Microsoft Corp., 149 Wn.2d 521, 532, 70 P.3d 126 (2003) (emphasis omitted) (quoting Hill, 144 Wn.2d at 193)) (internal quotation marks omitted).
REGARDING QUALIFIED EXPERT TESTIMONY: “Qualified expert testimony is admissible where it will assist the trier of fact to understand the evidence or to determine a fact in issue.” Id. at 817 (citing ER 702) (internal quotation marks omitted). “And if one party opens the door, the court may admit evidence on the same issue to rebut any false impression that might have resulted.” Id. (citing United States v. Sine, 493 F.3d 1021, 1037 (9th Cir. 2007) (quoting United States v. Whitworth, 856 F.2d 1268, 1285 (9th Cir. 1988)); State v. Fisher, 165 Wn.2d 727, 750, 202 P.3d 937 (2009)) (internal quotation marks omitted).
(C) HOSTILE WORK ENVIRONMENT BASED ON RETALIATION
RETALIATION BASED ON PROTECTED ACTIVITY: “To show retaliation based on protected activity, a plaintiff must provide evidence that the individuals he alleges retaliated against him knew of his protected activity.” Id. at 818 (citing Currier, 182 Wn.App. at 746-47).
THE CAUSAL-LINK REQUIREMENT: “The WLAD does not prohibit an employer’s actions without evidence of a causal link between the action and a plaintiff’s protected activity.” Id. (citing Alonso v. Qwest Commc’ns Co., 178 Wn.App. 734, 753-54, 315 P.3d 610 (2013)).
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ISSUES SECTION: The following section explains the court’s treatment of this case by separately presenting each issue followed by associated rules, analysis, and conclusion. The text color of each issue statement is always blue.
IV. ISSUES
This section for this case includes the following issues:
(CLICK on an issue or SCROLL to advance)
ISSUE #1: Did the trial court err in excluding the recorded conversations and imposing the resulting discovery sanctions?
ISSUE #2: Did the trial court properly dismiss Marin’s claim of disparate treatment based on protected status?
ISSUE #3: Did the trial court err in dismissing Marin’s disparate treatment claim by retaliation for protected activity?
ISSUE #4: 1) Did the trial court improperly restrict Marin to using direct and not circumstantial evidence? 2) Did the trial court abuse its discretion in striking coworker Holman’s testimony?
ISSUE #5: Did the trial abuse its discretion in handling the jury issues before it?
ISSUE #6: Did the trial court abuse its discretion in not excluding McClung’s testimony?
ISSUE #7: Did the trial court correctly direct a verdict for the County on Marin’s claim of hostile work environment based on retaliation?
ISSUE #1: Did the trial court err in excluding the recorded conversations and imposing the resulting discovery sanctions?
THE RULES: See supra § III(1) (General Rules: Discovery Sanctions).
STANDARD OF REVIEW: “We review a trial court’s interpretation of statutes and court rules de novo.” Nevers v. Fireside, Inc., 133 Wn.2d 804, 809, 947 P.2d 721 (1997). Marin, 194 Wn.App. at 805 (citing Nevers v. Fireside, Inc., 133 Wn.2d 804, 809, 947 P.2d 721 (1997)). “We review for abuse of discretion a trial court’s choice of sanctions for violation of a discovery order.” Id. (citing Burnet v. Spokane Ambulance, 131 Wn.2d 484, 494, 933 P.2d 1036 (1997)).
MARIN CHALLENGES EXCLUSION OF EVIDENCE & SANCTIONS: In this case, “Marin challenges the trial court’s exclusion of evidence of his conversations with his D Crew supervisor, James Sagnis, and its imposition of sanctions against his counsel for delayed disclosure of recordings of those conversations. This court denied discretionary review of these rulings.” Id.
(A) NO: 1) THE TRIAL COURT DID NOT ERR IN EXCLUDING THE RECORDINGS AND OTHER EVIDENCE REGARDING THE MEETINGs; 2) THE TRIAL COURT acted within its discretion in sanctioning mann — any other errors were hamless; and 3) the trial court did not err is considering attorney mann’s history of misconduct.
(1) APPELLANT’S ARGUMENT #1
MARIN ARGUES THAT THE SAGNIS CONVERSATIONS WERE NOT PRIVATE: “Marin first contends that his conversations with Sagnis were not ‘private’ under RCW 9.73.030 [(“The Privacy Act”)].” Marin, 194 Wn.App. at 806 (hyperlink added).
a) COURT’S ANALYSIS
THE SAGNIS CONVERSATIONS WERE PRIVATE: “[W]e conclude that Marin’s conversations with his supervisor were ‘private’ under RCW 9.73.030.” Id. at 806. The Court analyzed as follows:
⇒ Here, Marin and Sagnis had lengthy conversations in an office at work that involved only the two of them.
⇒ No third party was present.
⇒ Marin does not meaningfully distinguish Smith v. Employment Security Department, [155 Wn.App. 24, 39, 226 P.3d 263 (2010),] where the court found conversations between public employees in an office to be private as a matter of law.
⇒ Nor does he cite to authority to support his argument that the conversations were “public in nature” because they were between two government employees who each later revealed parts of what was said.
⇒ We distinguish the cases Marin does cite on the basis that they involve documents rather than conversations. [(Footnote 9 omitted)].
⇒ A violation of the privacy act requires exclusion of “all evidence” of the contents of the illegally recorded conversations. RCW 9.73.050; Schonauer v. DCR Entm’t, Inc., 79 Wn.App. 808, 819, 905 P.2d 392 (1995).
Marin, 194 Wn.App. at 806 (footnotes decoded) (hyperlinks, paragraph formatting, and arrows added).
(2) APPELLANT’S ARGUMENT #2
MARIN ARGUES THAT THE TRIAL COURT ERRED IN SANCTIONING HIS ATTORNEY (MANN): In this case, “Marin challenges the trial court’s … imposition of sanctions against his counsel for delayed disclosure of recordings of … [conversations with his D Crew supervisor, James Sagnis].” See Marin, 194 Wn.App. at 805. Marin “argues that even if the trial court properly excluded the recordings, it erred in sanctioning his attorney, … Mann[.]” Id. at 807.
a) COURT’S ANALYSIS
THE TRIAL COURT ACTED WITHIN ITS DISCRETION IN SANCTIONING ATTORNEY MANN BASED ON HER CONDUCT: “The trial court acted within its discretion in sanctioning Mann based on … [her] conduct. The other facts Marin recites are irrelevant and obfuscatory.” Id. The Court evaluated Mann’s conduct, as follows:
⇒ [T]he record contradicts Marin’s assertion that his attorneys produced the recordings “seasonably.”
⇒ An attorney at Mann’s firm, … Rose, acknowledged that he knew of the recordings 10 days before the deposition and knew that they were responsive to the County’s discovery requests.
⇒ Rose then told Mann about the recordings. Rose deposed Sagnis, then waited 6 more days to produce the recordings.
⇒ While it sanctioned Mann $5,000, the trial court denied the County’s request to dismiss the case.
⇒ Marin contends, again without meaningful support, that this court should reverse the sanction because the trial court erroneously “applied CR 37 case law” to his counsel’s violation of CR 26(g).
⇒ Marin acknowledges, though, that the standard for sanctions under CR 37 is higher than under CR 26(g).
⇒ And, in any case, the trial court considered CR 37 standards only in declining to sanction Marin with dismissal.
⇒ Thus, the error that Marin asserts, if it occurred, was harmless.
Marin, 194 Wn.App. at 807 (hyperlinks, paragraph formatting, and arrows added).
(3) APPELLANT’S ARGUMENT #3
MARIN ARGUES THAT THE TRIAL COURT IMPROPERLY CONSIDERED MANN’S HISTORY OF SANCTIONS: “Finally, Marin contends that the trial court improperly considered Mann’s history of sanctions when deciding the appropriate sanction here.” Id.
a) COURT’S ANALYSIS
THE TRIAL COURT DID NOT ERR IN CONSIDERING MANN’S HISTORY OF SANCTIONS: “The trial court did not err in [considering attorney Mann’s history of misconduct in determining appropriate sanctions]” See id. (citing In re Disciplinary Proceeding Against Cohen, 150 Wn.2d 744, 760 n.8, 761-62, 82 P.3d 224 (2004)). The Court analyzed as follows:
⇒ Marin contends that the trial court improperly considered Mann’s history of sanctions when deciding the appropriate sanction here.
⇒ The trial court “deem[ed] th[e] violation to be serious, particularly in light of Ms. Mann’s history of sanctions in previous cases.”
⇒ This is not, as Marin contends, an improper use of character evidence to determine that Mann’s conduct was “willful.”
⇒ A trial court may consider an attorney’s history of misconduct in determining appropriate sanctions. In re Disciplinary Proceeding Against Cohen, 150 Wn.2d 744, 760 n.8, 761-62, 82 P.3d 224 (2004).
Marin, 194 Wn.App. at 807 (alterations in original) (footnotes decoded) (paragraph formatting and arrows added).
(b) COURT’S HOLDING → RESPONDENT
In this case, the Court held as follows:
» “[T]he trial court did not err in excluding the recordings and other evidence regarding the meetings.” Id. at 806-07.
» “The trial court acted within its discretion in sanctioning … [Marin’s attorney] based on … [attorney Mann’s] conduct. The other facts Marin recites are irrelevant and obfuscatory.” Id. at 807.
» “The trial court did not err in considering attorney Mann’s history of misconduct in determining appropriate sanctions.” Id. (internal citation omitted).
(c) AFFIRMED
In this case, “Because Marin failed to present evidence sufficient to create a genuine issue of material fact as to every element of a disparate treatment claim and because Marin’s numerous other arguments also lack merit, we affirm.” Id. at 820 (emphasis added).
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ISSUE #2: Did the trial court properly dismiss Marin’s claim of disparate treatment based on protected status?
SUMMARY JUDGMENT: “We review a grant of summary judgment de novo, considering the same record as the trial court in the light most favorable to the nonmoving party.” Marin, 194 Wn.App. at 808 (citing Camicia v. Howard S. Wright Constr. Co., 179 Wn.2d 684, 693, 317 P.3d 987 (2014); Young v. Key Pharm., Inc., 112 Wn.2d 216, 226, 770 P.2d 182 (1989)). “Summary judgment is appropriate only when there is no genuine issue as to any material fact.” Id. (citing CR 56(c); Camicia, 179 Wn.2d at 693).
THE RULES: See supra § III(4)(A)(1) (General Rules: Washington Law Against Discrimination (WLAD): Disparate Treatment: Disparate Treatment Based on Protected Status: The Prima Facie Case).
DISPARATE TREATMENT BASED ON TWO THEORIES: “Marin next challenges the trial court dismissal on summary judgment of his disparate treatment claim. He based that claim on two theories: discrimination against him as a member of a protected class and retaliation against him for protected activity.” Marin, 194 Wn.App. at 808 (footnote omitted).
(A) YES: the trial court properly dismissed marin’s claim of disparate treatment based on protected status.
THE PARTIES AGREE MARIN IS A MEMBER OF A PROTECTED CLASS: “The parties agree that Marin is a member of one or more protected classes.” Marin, 194 Wn.App. at 808.
(1) APPELLANT’S ARGUMENT #1
MARIN ARGUES THAT HE (a) PRESENTED EVIDENCE OF ADVERSE EMPLOYMENT ACTIONS; AND (b) RAISED A REASONABLE INFERENCE OF DISCRIMINATION: In this case, Marin argues he made the prima facie showing by presenting evidence of an adverse employment action and raising a reasonable inference of discrimination. See id. at 809-10. “He alleges a general pattern of harassment[.]” Id. at 809.
a) COURT’S ANALYSIS — Adverse Employment Action
MARIN FAILED TO MAKE A PRIMA FACIE SHOWING: HE FAILED TO PRESENT EVIDENCE OF ADVERSE EMPLOYMENT ACTION: “Marin failed to make the required prima facie showing.” Id. at 809. He failed to present evidence of an adverse employment action. See id. The Court analyzed as follows:
⇒ First, he did not present evidence of an adverse employment action. None of the actions he points to, many of which he misrepresents, amount to a tangible change in employment status. For instance[:]
• Marin describes as “unwarranted discipline” a letter recommending withdrawal of his reprimand from Horton.
• He mischaracterizes his TLC as containing “threats of discipline.”
• He refers to finding “frightening racial materials at his desk,” though the record shows he found the items in a part of the plant where he did not normally work and no one knew he would be.
• And he asserts without support he “was disciplined for going home sick by collective efforts” of numerous WTD employees.
⇒ He alleges a general pattern of harassment but does not support it with citations to the record adequate for this court to review. See RAP 10.3(a)(6); Hernandez v. Stender, 182 Wn.App. 52, 59, 358 P.3d 1169 (2014).
⇒ The record does not, in any case, support Marin’s assertions.
⇒ The TLC Marin received on B Crew was not an adverse employment action. It did not result in a discharge, demotion, or change his benefits or responsibilities. See Donahue v. Cent. Wash. Univ., 140 Wn.App. 17, 26, 163 P.3d 801 (2007) (holding that professor did not suffer adverse action where he “did not lose tenure, he was not demoted, and he did not receive a reduction in pay”).
⇒ And while Marin alleges that the County denied him training, he cites only to his expert’s report on county safety procedures. That report is not evidence of an adverse employment action.
⇒ Additionally, the report’s conclusions–that WTD’s safety procedures were deficient for all employees–contradict Marin’s assertion that his supervisors treated him differently.
Marin, 194 Wn.App. at 809-10 (footnotes decoded) (paragraph formatting, bullets, and arrows added).
b) COURT’S ANALYSIS — Reasonable Inference of Discrimination
MARIN FAILED TO MAKE A PRIMA FACIE SHOWING: HE FAILED TO RAISE A REASONABLE INFERENCE OF DISCRIMINATION: “Marin failed to make the required prima facie showing.” Id. at 809. “Marin failed to raise a reasonable inference of discrimination.” Id. at 810. The Court analyzed as follows:
⇒ He points to no evidence that the County took an adverse action against him because of his protected class.
⇒ Marin contends the County treated him differently than a nonprotected employee, Billy Burton, who also made a lockout error.
⇒ Even if Marin had shown Burton’s error to be analogous to his own, Burton is still not a valid comparator because he worked under a different supervisor. See Xuan Huynh v. U.S. Dep’t of Transp., 794 F.3d 952, 960 (8th Cir. 2015); Rodriguez-Cuervos v. Wal-Mart Stores, Inc., 181 F.3d 15, 21 (1st Cir. 1999) (both finding employees under different supervisors were not similarly situated).
⇒ And the record does not show that the County treated Marin differently than Burton, who also received a TLC–albeit an oral one–after his error.
⇒ A reasonable employee would not interpret Marin’s TLC as setting “impossible or terrifying unique performance standards” or threatening termination.
Marin, 194 Wn.App. at 810 (footnotes decoded) (paragraph formatting and arrows added).
(2) APPELLANT’S ARGUMENT #2
MARIN ARGUES HE SHOWED THAT THE COUNTY’S REASONS ARE PRETEXTUAL: Marin argues that he showed the county’s reasons are pretextual. See id. at 810.
a) COURT’S ANALYSIS
MARIN FAILED TO PRESENT EVIDENCE OF PRETEXT: “Even if Marin had made a prima facie showing of disparate treatment, he failed to show the County’s reasons are pretextual.” Id. at 810. “No reasonable juror could find from the evidence presented that the County’s asserted reasons were pretexts for discrimination.” Id. at 810-11. The Court analyzed as follows:
⇒ Marin does not dispute that the County showed legitimate reasons for each action.
⇒ In arguing those reasons are pretextual, Marin lists treatment both during and before his time on D Crew.
⇒ But he does not support that list with specific citations to the record or explain how it shows pretext. Marin instead cites to swathes of the record up to 120 pages wide. These include[:]
• a declaration by a former coworker, Norm Cook, alleging he and Marin received disparate assignments from 2000-2003 due to their race.
• Those events were outside the limitations period, and the trial court explicitly excluded evidence regarding that period from trial.
Marin, 194 Wn.App. at 810-11 (footnotes decoded) (paragraph formatting, bullets, and arrows added).
(b) COURT’S HOLDING → RESPONDENT
In this case, the Court held as follows:
NO PRIMA FACIE CASE: “Marin failed to make the required prima facie showing. First, he did not present evidence of an adverse employment action.” Id. at 809. “Second, Marin failed to raise a reasonable inference of discrimination.” Id. at 810.
NO SHOWING OF PRETEXT: “Even if Marin had made a prima facie showing of disparate treatment, he failed to show the County’s reasons are pretextual.” Id.
(c) AFFIRMED
“[T]he trial court properly dismissed Marin’s claim of disparate treatment based on protected status.” Id. at 811. “Because Marin failed to present evidence sufficient to create a genuine issue of material fact as to every element of a disparate treatment claim and because Marin’s numerous other arguments also lack merit, we affirm.” Id. at 820.
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ISSUE #3: Did the trial court err in dismissing Marin’s disparate treatment claim by retaliation for protected activity?
THE RULES: See supra § III(4)(A)(2) (General Rules: Washington Law Against Discrimination (WLAD): Disparate Treatment: Disparate Treatment by Retaliation for Protected Activity).
(A) NO: The trial court did not err in dismissing his disparate treatment claim on summary judgment.
(1) APPELLANT’S ARGUMENT #1 — Adverse Employment Action
MARIN ARGUES THAT, SIMILAR TO THE CASE IN BOYD, THE TREATMENT HE RECEIVED, TAKEN TOGETHER, AMOUNTED TO ADVERSE EMPLOYMENT ACTION: In this case, “Marin cites Division Two’s recent decision in Boyd v. State[, 187 Wn.App. 1, 13-14, 349 P.3d 864 (2015),] to contend that the treatment he received, taken together, amounted to an adverse employment action.” Marin, 194 Wn.App. at 811. (footnote decoded). “In that case[:]
→ Boyd showed that his employer, a state hospital, suspended him for two weeks without pay, gave him a written reprimand and sent it to his supervisor along with a list of threatening comments he allegedly made, removed him from his ward and patient interaction, and reported him to the Department of Health and the police.
→ The hospital argued that as a matter of law, some of these acts were not adverse.
→ The court disagreed, stating,
We express no opinion as to whether these employment actions, taken individually, constituted adverse employment actions as a matter of law. However, taken in context, a reasonable jury could find that these actions, taken together, were materially adverse.
Id. at 811-12 (footnotes omitted) (paragraph formatting and arrows added).
a) COURT’S ANALYSIS
MARIN FAILED TO SHOW HE SUFFERED AN ADVERSE EMPLOYMENT ACTION AND THUS DID NOT PRESENT PRIMA FACIE CASE: Marin “failed to present a prima facie case.” Id. at 811. “[H]e again failed to show that he suffered an adverse employment action.” Id. The Court analyzed as follows:
⇒ Marin’s reliance on Boyd is misplaced. That decision did not dispense with the requirement that a plaintiff must present sufficient evidence to survive summary judgment.
⇒ Marin ignores the differences between his evidence and that of the plaintiff’s in Boyd.
• In contrast to the hospital in Boyd, the County never suspended Marin without pay; it never reported him to the police or other authorities.
• Only in the context of these concededly adverse actions did Division Two find that a jury could conclude that the hospital’s other actions were adverse.
⇒ Here, Marin presented no such context for his claims.
Id. at 811-12 (footnotes omitted) (paragraph formatting, arrows, and bullets added).
(2) APPELLANT’S ARGUMENT #2 — Causation
MARIN ARGUES THAT, SIMILAR TO THE CASE IN BOYD, THERE IS A TRIABLE ISSUE AS TO CAUSATION BASED ON SAGNIS’S STATEMENTS TO HR SHOWING RETALIATORY ANIMUS: To establish causation, Marin “again compares his case to Boyd, where Division Two found a triable issue as to causation, …[ ][,]” Boyd, 187 Wn.App. at 212, and “points to Sagnis’s statements to an HR person showing retaliatory animus.” Marin, 194 Wn.App. at 812-13
a) COURT’S ANALYSIS (CAUSATION) — Protected Activity
MARIN FAILED TO SHOW HIS PROTECTED ACTIVITY CAUSED/WAS SUBSTANTIAL FACTOR IN COUNTY TAKING ADVERSE EMPLOYMENT ACTIONS: “Marin failed to show that his protected activity caused or was a ‘substantial factor’ in the County taking any of the alleged adverse employment actions.” Id. at 812. The Court analyzed as follows:
⇒ He again compares his case to Boyd, where Division Two found a triable issue as to causation, but we again distinguish that case. Boyd, 187 Wn.App. at 14.
• After Boyd told his supervisor to stop harassing him, “she became hostile and threatened to ‘make sure [he] can’t work in any of the 50 states.'” Boyd, 187 Wn.App. at 18 (alteration in original).
• She then “involved herself in investigating” a complaint that had been made against Boyd, collecting witness statements and interviews, and writing that Boyd “is known to lie.” Boyd, 187 Wn.App. at 18.
• Their employer relied on her statements to discipline Boyd. Boyd, 187 Wn.App. at 18.
⇒ Here, Marin points to Sagnis’s statements to an HR person showing “retaliatory animus.”
⇒ But unlike the supervisor in Boyd, Sagnis had no involvement with Marin after Marin made his complaint.
⇒ Sagnis made the statements months after Marin left his crew, and Marin acknowledges he did not know of the statements when he decided to remain at South Plant.
⇒ Because Marin cannot connect Sagnis’s animus with any alleged action against him, he cannot use it to show causation.
Marin, 194 Wn.App. at 812-13 (footnotes decoded) (internal quotation marks omitted) (paragraph formatting, bullets, and arrows added).
b) COURT’S ANALYSIS (CAUSATION) — Defendant’s Knowledge
MARIN FAILED TO SHOW THAT ANY OF DEFENDANT’S EMPLOYEES KNEW ABOUT HIS PROTECTED ACTIVITY: “Third, Marin failed to show that anyone at South Plant knew about his protected activity at West Point, precluding his claim that employees at South Plant retaliated for that activity.” Id. at 813. The Court analyzed as follows:
⇒ He identifies no evidence that supports his bare assertion that the entire ‘chain of command’ knew he complained against Sagnis. Id.
Marin, 194 Wn.App. at 813 (paragraph formatting and arrow added).
(3) APPELLANT’S ARGUMENT #3 — Pretext
MARIN ARGUES THAT THE TLC HE RECEIVED ON B CREW IS EVIDENCE OF PRETEXT: Here, Marin “again points to the TLC he received on B Crew[ ]” as evidence of pretext. Id. at 813.
a) COURT’S ANALYSIS
MARIN FAILED TO SHOW ANY EVIDENCE OF PRETEXT FOR RETALIATION: “[A]s with his disparate treatment claim, Marin failed to show any evidence of pretext for retaliation.” Id.at 813. The Court analyzed as follows:
⇒ [A]s discussed above, the record does not show that the TLC was an adverse employment action or “adverse compared to other use of ‘TLC’ notes to employees” in similar situations.
⇒ The TLC does not support Marin’s pretext argument.
Marin, 194 Wn.App. at 813 (paragraph formatting and arrows added).
(b) COURT’S HOLDING → RESPONDENT
In this case, the Court held “Marin failed to satisfy his burden to show an adverse employment action, causation, and pretext to support either his discrimination or retaliation theory.” Id. at 813.
“The trial court did not err in dismissing his disparate treatment claim on summary judgment.” Id.
(c) AFFIRMED
“Because Marin failed to present evidence sufficient to create a genuine issue of material fact as to every element of a disparate treatment claim and because Marin’s numerous other arguments also lack merit, we affirm.” Id. at 820.
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ISSUE #4: 1) Did the trial court improperly restrict Marin to using direct and not circumstantial evidence? 2) Did the trial court abuse its discretion in striking coworker Holman’s testimony?
THE RULES: See supra § III(2) (General Rules: Evidence).
THE TRIAL COURT RULING (FOUNDATION): In this case, “[t]he trial court ruled that Marin could not offer evidence that any coworker retaliated against him without first laying the foundation that the coworker was aware of Marin’s discrimination complaint. Marin’s coworkers needed this knowledge for their acts to be retaliatory under WLAD.” Marin, 194 Wn.App. at 813-14 (footnote and internal citation omitted).
(A) No: 1) The trial court’s order did NOT RESTRICT MARIN TO USING DIRECT AND NOT CIRCUMSTANTIAL EVIDENCE; 2) THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN conditioning holman’s testimony on marin’s later introduction of facts necessary to make it relevant.
(1) APPELLANT’S ARGUMENT #1
MARIN ARGUES THAT THE TRIAL COURT RESTRICTED HIM TO USING DIRECT AND NOT CIRCUMSTANTIAL EVIDENCE: Marin makes one challenge to the trial court’s ruling: “it restricted him to using direct and not circumstantial evidence that the alleged retaliator knew he had made a protected complaint.” Marin, 194 Wn.App. at 814.
a) COURT’S ANALYSIS
THE TRIAL-COURT ORDER DOES NOT IMPOSE THIS RESTRICTION: “The order does not impose this restriction” Id. The Court analyzed as follows:
⇒ But the trial court’s order did no such thing.
• The order required Marin to “lay[ ] an adequate foundation … showing that the accused coworker was aware that [Marin] had made a complaint about discrimination.”
⇒ The order does not impose this restriction. Nothing in the record shows that the trial court would exclude circumstantial evidence of a coworker’s knowledge.
Marin, 194 Wn.App. at 814. (footnote decoded) (alterations in original).
(2) PLAINTIFF’S ARGUMENT #2
MARIN ALSO ARGUES THE TRIAL COURT ERRED IN STRIKING COWORKER LLOYD HOLMAN’S TESTIMONY: “Marin also claims the trial court erred in striking coworker Lloyd Holman’s testimony that he heard statements from unidentified coworkers that Marin had complained against his C Crew supervisor, Alenduff.” Id. at 814.
a) COURT’S ANALYSIS
THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN FINDING SUCH EVIDENCE NECESSARY TO MAKE HOLMAN’S TESTIMONY RELEVANT: “The trial court did not abuse its discretion in finding such evidence necessary to make Holman’s testimony relevant.” Id. The Court analyzed as follows:
⇒ After eliciting Holman’s testimony, Marin offered no evidence that any alleged harasser had heard that he complained against Alenduff, let alone that they knew his complaint related to sexual harassment.
⇒ The trial court did not abuse its discretion in finding such evidence necessary to make Holman’s testimony relevant.
Id. (paragraph formatting and arrows added).
(b) COURT’S HOLDING
“The order does not impose this restriction. Nothing in the record shows that the trial court would exclude circumstantial evidence of a coworker’s knowledge.” Id.
Moreover, “[t]he trial court did not abuse its discretion in finding such evidence necessary to make Holman’s testimony relevant.” Id.
(c) AFFIRMED
“Because Marin’s … arguments … lack merit, we affirm.” Id. at 820.
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ISSUE #5: Did the trial abuse its discretion in handling the jury issues before it?
THE RULES: See supra § III(3) (General Rules: Jury Selection).
MARIN’S CLAIMS: “Marin … claims that the trial court failed to fully question and excuse juror 71, improperly reduced Marin’s voir dire time, and improperly subtracted from Marin’s trial time for a for-cause challenge.” Marin, 194 Wn.App. at 814.
(A) NO: THE TRIAL COURT DID NOT ABUSE ITS DISCRETION IN HANDLING THE JURY ISSUES BEFORE IT.
(1) APPELLANT’S ARGUMENT #1
MARIN ARGUES THE TRIAL COURT FAILED TO FULLY QUESTION AND EXCUSE JUROR 71: Marin argues that the trial court “failed to fully question and excuse juror 71[.]” Id. at 814.
a) COURT’S ANALYSIS
THE RECORD SHOWS THAT THE TRIAL COURT ENSURED MARIN HAD REASONABLE TIME TO DISCOVERY ANY PREJUDICES: “The record shows the trial court ensured Marin had ‘reasonable time to discover any prejudices.'” Id. at 815. The Court analyzed as follows:
⇒ Marin waived his for-cause challenge by not raising it during voir dire. See Dean v. Grp. Health Coop. of Puget Sound, 62 Wn.App. 829, 836, 816 P.2d 757 (1991).
⇒ The exception to the waiver rule does not apply because juror 71 did not prevent Marin from learning of his potential bias by misconduct.
• See In re Det. of Broten, 130 Wn.App. 326, 338, 122 P.3d 942 (2005).
• Juror misconduct is a fact question within the trial court’s discretion. Dean, 62 Wn.App. at 837.
• To show misconduct, “a party must prove (1) that a juror failed to answer honestly a material question on voir dire and (2) that a correct response would have provided a valid basis for a challenge for cause.” Broten, 130 Wn.App. at 337 (emphasis omitted) (quoting McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984)).
⇒ He disclosed on his questionnaire that he was “[g]ood friend[s] with a King County prosecutor.”
⇒ He responded to a pertinent general question about this topic during voir dire by raising his card.
⇒ Marin did not question him or attempt to strike him from the jury before the panel was sworn.
⇒ Marin did question him after the panel was sworn, and juror 71 indicated again that he was a friend of a woman in the county prosecutor’s office.
⇒ Marin did not ask juror 71 whether he thought that friendship would affect his ability to judge the case fairly.
Marin, 194 Wn.App. at 815-16. (footnotes decoded) (alterations in original) (internal quotation marks omitted) (paragraph formatting and arrows added).
(2) APPELLANT’S ARGUMENT #2
MARIN ARGUES THAT THE TRIAL COURT IMPROPERLY REDUCED HIS VOIR DIRE TIME: Marin argues that the trial court “improperly reduced Marin’s voir dire time[.]” Id. at 814.
a) COURT’S ANALYSIS
RECORD DOES NOT SUPPORT MARIN’S CONTENTION THAT TRIAL COURT REDUCED ALLOTTED VOIR DIRE TIME: “[T]he record does not support Marin’s contention that the trial court ‘reduced the allotted voir dire time.'” Id. at 816. The Court analyzed as follows:
⇒ Marin initially used his allotted 30 minutes.
⇒ And after juror 71 e-mailed the court, re-raising his issue, the trial court granted Marin additional time.
⇒ The court’s decision to count that additional time against Marin’s trial time was within its discretion to manage the courtroom and ensure impartial jury selection with reasonable expedition. State v. Brady, 116 Wn.App. 143, 146-47, 64 P.3d 1258 (2003).
Marin, 194 Wn.App. at 816. (footnotes decoded) (internal quotation marks omitted) (paragraph formatting and arrows added).
(3) APPELLANT’S ARGUMENT #3
MARIN ARGUES THAT THE TRIAL COURT IMPROPERLY SUBRACTED FROM HIS TRIAL TIME FOR A FOR-CAUSE CHALLENGE: Marin argues that the trial court “improperly subtracted from Marin’s trial time for a for-cause challenge[.]” Id. at 814.
a) COURT’S ANALYSIS
MARIN ESTABLISHES NO GROUNDS FOR CASUE FOR DISMISSING JUROR 71: “Marin established no grounds for cause for dismissing juror 71 at the end of trial.” Id. at 816
⇒ Marin does not address the elements of a for-cause challenge, and Marin’s questioning did not establish juror 71’s inability to judge the case fairly.
Id. (paragraph formatting and arrow added).
(b) COURT’S HOLDING → DEFENDANT
“[T]he trial court did not abuse its discretion in handling the jury issues before it.” Id. at 815.
(c) AFFIRMED
“Because Marin’s … arguments … lack merit, we affirm.” Id. at 820.
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ISSUE #6: Did the trial court abuse its discretion in not excluding McClung’s testimony?
THE RULES: See supra § III(3)(B) (General Rules: Washington Law Against Discrimination (WLAD): Failure to Accommodate).
TESTIMONY CONCERNING MARIN’S CREDIBILITY: “Here, the trial court excluded testimony about Marin’s credibility and instructed the jury to disregard any that came close.” Marin, 194 Wn.App. at 817 (footnote omitted).
(A) NO: mCCLUNG’S TESTIMONY WAS ADMISSIBLE BOTH ON THE MERITS AND TO REBUT MARIN’S WITNESSES.
In this case, “Marin also challenges the trial court’s admission of Dr. McClung’s testimony.” Marin, 194 Wn.App. at 816.
(1) APPELLANT’S ARGUMENT #1
MARIN ARGUES DR. MCCLUNG’S TESTIMONY IS IMPERMISSIBLE CHARACTER EVIDENCE UNDER ER 404: Marin challenges Dr. McClung’s testimony as impermissible character evidence under ER 404. See id. at 817 (footnote omitted).
a) COURT’S ANALYSIS — Testimony Related to Medical Conditions
MCCLUNG’S TESTIMONY WAS NOT IMPERMISSIBLE CHARACTER EVIDENCE UNDER ER 404; AND TRIAL COURT DID NOT ABUSE ITS DISCRETION IN NOT EXCLUDING IT UNDER ER 403: “McClung’s testimony was not impermissible character evidence under ER 404.” Id. at 817; footnote 54 decoded:
Cf. In re Meistrell, 47 Wn.App. 100, 109, 733 P.2d 1004 (1987) (holding that ER 404 does not exclude prior mental history as character evidence).
Marin, 194 Wn.App. at 820 n.54. Moreover, since McClung’s testimony was highly probative as to Marin’s medical conditions, the trial court did not abuse its discretion in not excluding it under ER 403.” Id. at 817. The Court analyzed as follows:
⇒ Here, the trial court excluded testimony about Marin’s credibility and instructed the jury to disregard any that came close. [Footnote 53 decoded:
• The court instructed the jury to disregard testimony that “under stress Mr. Marin might have difficulties with an accurate perception of reality.”
• Instructions can cure errors in admitting testimony. State v. Perez-Valdez, 172 Wn.2d 808, 818-19, 265 P.3d 853 (2011).]
⇒ McClung’s testimony did not relate to Marin’s credibility but to his medical conditions, whether the County could reasonably accommodate them, and whether Marin could perform the essential functions of his job.
⇒ Marin’s accommodations claim put all of these matters at issue.
⇒ Consequently, McClung’s testimony was not impermissible character evidence under ER 404.
⇒ And since McClung’s testimony was highly probative as to Marin’s medical conditions, the trial court did not abuse its discretion in not excluding it under ER 403.
Marin, 194 Wn.App. at 817. (footnotes decoded; footnote 54 omitted) (internal quotation marks omitted) (paragraph formatting, arrows, and bullets added).
b) COURT’S ANALYSIS — Opening the Door to Testimony About Accuracy of Perceptions
MARIN OPENED THE DOOR TO TESTIMONY ABOUT THE ACCURACY OF HIS PERCEPTIONS: “Moreover, Marin opened the door to testimony about the accuracy of his perceptions.” Id. at 817. The Court analyzed as follows:
⇒ His physicians testified that they wrote to the County requesting accommodations for PTSD, endorsed his belief that his condition flared due to stress at work, and even opined on his character.
⇒ When cross-examining Dr. McClung, Marin repeatedly asked whether certain perceptions were “spot-on.”
⇒ Only then, on redirect, did the County clarify with McClung that Marin’s perceptions were not all “spot-on.”
Id. at 817-18 (paragraph formatting and arrows added).
(2) APPELLANT’S ARGUMENT #2
MARIN ARGUES THAT A PARANOID-TRAITS DIAGNOSIS IS NOT A RECOGNIZED DIAGNOSIS, MAKING ANY TESTIMONY ABOUT IT INADMISSIBLE. See id. at 818.
a) COURT’S ANALYSIS
MARIN WAIVED ANY OBJECTION UNDER ER 702 THAT A PARANOID-TRAITS DIAGNOSIS IS NOT A “RECOGNIZED” DIAGNOSIS: “Finally, Marin waived any objection under ER 702 that a paranoid-traits diagnosis is not a ‘recognized’ diagnosis, making any testimony about it inadmissible.” Id. at 818. The Court analyzed as follows:
⇒ Although he hints at this argument, Marin does not argue the elements of the test for admissibility under Frye v. United States or cite to authority.
⇒ Also, he did not object to McClung’s testimony on this basis at trial.
⇒ Thus, he did not preserve the issue for appeal.
Marin, 194 Wn.App. at 818. (footnotes omitted) (paragraph formatting and arrows added).
(b) COURT’S HOLDING → RESPONDENT
“McClung’s testimony was admissible both on the merits and to rebut Marin’s witnesses.” Id. at 818.
(c) AFFIRMED
“Because Marin’s … arguments … lack merit, we affirm.” Id. at 820.
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ISSUE #7: Did the trial court correctly direct a verdict for the County on Marin’s claim of hostile work environment based on retaliation?
THE RULES: See supra § III(4)(C) (General Rules: Washington Law Against Discrimination (WLAD): Hostile Work Environment Based on Retaliation).
STANDARD OF REVIEW: “We review a ruling on a motion for directed verdict under the same standard as the trial court, affirming the directed verdict when there is no substantial evidence or reasonable inference to sustain a verdict for the nonmoving party.” Marin, 194 Wn.App. at 818 (citing Guijosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 915, 32 P.3d 250 (2001) (quoting Sing v. John L. Scott, Inc., 134 Wn.2d 24, 29, 948 P.2d 816 (1997))).
THE TRIAL COURT DISMISSAL: “The trial court dismissed Marin’s claim of retaliation-based hostile work environment because it determined that Marin presented no evidence that anyone harassed him after knowing about his protected activity.” Id. at 818-19.
(A) YES: The trial court correctly directed a verdict for the county on marin’s claim of hostile work einvironment based on retaliation.
The Court held that the “trial court … correctly directed a verdict for the County on Marin’s claim of hostile work environment based on retaliation.” Id. at 819.
(1) APPELLANT’S ARGUMENT #1
MARIN ARGUES THAT THE TRIAL COURT ERRED BY DISMISSING HIS CLAIM OF HOSTILE WORK ENVIRONMENT BASED ON RETALIATION: In this case, “Marin contends the trial court erred by dismissing Marin’s claim of hostile work environment based on retaliation.” Marin, 194 Wn.App.at 818.
a) COURT’S ANALYSIS
THE RECORD SUPPORTS THE TRIAL COURT’S FINDING THAT MARIN PRESENTED NO EVIDENCE THAT ANYONE HARASSED HIM AFTER KNOWING ABOUT HIS PROTECTED ACTIVITY: “The trial court dismissed Marin’s claim of retaliation-based hostile work environment because it determined that Marin presented no evidence that anyone harassed him after knowing about his protected activity.” Id. at 818-19. “The record supports that finding.” Id. at 819. The Court analyzed as follows:
⇒ Marin did not work with Sagnis after complaining against him, so Sagnis’s later comments were not retaliatory.
⇒ No one at South Plant knew of Marin’s complaint against Sagnis or any other protected activity, so whatever conduct Marin experienced at South Plant could not have been retaliation for that complaint.
⇒ And after Marin then complained about Alenduff, the County respected his request to remain anonymous.
⇒ Marin presented no evidence of any conduct by a managing employee who was aware of Marin’s complaints that a reasonable juror could find to be harassment.
⇒ Instead, he alleges, “HR terrified [him] … that he would return to Sagnis’s” crew “and that he was ‘welcome to go back to West Point D Crew.'”
⇒ He bases these allegations on the County offering him a choice of remaining at South Plant or returning to West Point.
⇒ No reasonable juror could interpret those offers to accommodate Marin as harassment, so HR’s knowledge of Marin’s protected activity cannot be the basis of a retaliation claim.
⇒ Thus, contrary to Marin’s assertion that he provided “evidence of widespread notice of protected WLAD activity,” Marin’s evidence was not sufficient for any rational juror to find retaliatory animus.
⇒ Nowhere does he point to an individual who both knew of his protected activity and, afterward, took some action that could reasonably be construed as harassment.
Id. at 819 (alterations in original) (paragraph formatting and arrows added).
(b) COURT’S HOLDING → RESPONDENT
TRIAL COURT CORRECTLY DIRECTED VERDICT: In this case, the Court held that the “trial court … correctly directed a verdict for the County on Marin’s claim of hostile work environment based on retaliation.” Id. at 819.
(c) AFFIRMED
“Because Marin’s … arguments … lack merit, we affirm.” Id. at 820.
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