In Boyd v. State, 187 Wn.App. 1, 349 P.3d 864 (Div. 2 2015), “Western State Hospital (WSH) appeals the jury verdict and judgment against it in … Boyd’s employment retaliation case.” Id. at 5.
SNAPSHOT: This is a case summary of Boyd v. State, 187 Wn.App. 1, 349 P.3d 864 (Div. 2 2015). 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
Boyd v. State, 187 Wn.App. 1, 349 P.3d 864 (Div. 2 2015).
Appellant: WESTERN STATE HOSPITAL
Respondent: BOYD
BRIEF DESCRIPTION
“Western State Hospital (WSH) appeals the jury verdict and judgment against it in … Boyd’s employment retaliation case.” Boyd, 187 Wn. App. at 5.
“It argues that the trial court erred when it denied WSH’s CR 50 motion because some of the actions Boyd relied on were not adverse employment actions and there was no causal connection between Boyd’s actions and the WSH’s adverse employment actions.” Id. at 5-6.
“WSH also argues that the trial court erred by allowing Boyd to base liability on the ‘cat’s paw,’ or subordinate bias, theory.” Id. at 6 (footnote omitted).
“We hold that Boyd presented substantial evidence of adverse employment actions and a causal connection to support a verdict in his favor.” Id.
“The trial court correctly allowed Boyd to rely on the cat’s paw theory where he presented evidence that a supervisor’s animus was a substantial factor in WSH’s decision to discipline him.” Id.
“We affirm and award Boyd attorney fees on appeal.” Id.
CATEGORIES
1. Attorney Fees
2. Cat’s Paw Theory
3. CR 50 Motion
4. Jury Instructions
5. McDonnell Douglas Framework (Unlawful Retaliation)
6. Verdict Forms
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 (29 Total):
The substantive facts for this case are as follows:
[1] Boyd is a registered nurse at WSH.
[2] … Maddox was a supervisor in the ward adjacent to Boyd’s ward.
[3] She would cover Boyd’s ward when his ward supervisor was absent.
[4] Initially, Maddox treated Boyd affectionately.
[a] She brought him T-shirts from her vacations.
[b] She would corner Boyd in the nurse’s office and sit extremely close to him or position herself in a suggestive manner.
[c] Maddox referred to Boyd as “[h]er pen#s.”
[d] Maddox also made suggestive comments to Boyd while he installed heaters at her house.
[5] In April 2009, Boyd confronted Maddox and told her to leave him alone.
[6] Maddox responded by telling Boyd that if he told anyone about the harassment, she would “make sure that [he] can’t work in any of the 50 states.”
[7] After the confrontation, Maddox stopped acting affectionate toward Boyd and became hostile.
[8] Boyd did not immediately inform WSH of Maddox’s behavior.
[9] On December 26, 2009, Boyd delayed assessing a patient.
[a] … Bagsic, Boyd’s coworker, requested a patient assessment from Boyd at about 1:00 a.m.
[b] Boyd did not arrive immediately, and Bagsic called again.
[c] Boyd answered the phone and impersonated another employee.
[d] Bagsic asked where Boyd was, and Boyd left at that point to assess the patient.
[e] Bagsic gave the patient the requested medicine at 2:20 a.m.
[10] Staff reported the incident to Maddox, who reported it to her supervisor.
[11] The supervisor directed … Cook-Gomez, Boyd’s ward supervisor, to investigate the incident.
[12] Both Cook-Gomez and Maddox collected witness statements and conducted interviews regarding the incident.
[13] During the investigation, Cook-Gomez overheard Boyd make statements that she perceived as threatening.
[a] Boyd had been discussing assault rifles with coworkers and the best way to burn a woman’s body.
[b] He also demonstrated how to use a chef’s knife in an allegedly threatening manner.
[c] Another staff member told Cook-Gomez that Boyd said, “[T]hey may fire me[,] but they will sure as hell remember me.”
[14] WSH assigned Maddox to investigate Boyd’s alleged threats.
[15] On January 21, 2010, as a result of the ongoing investigation, WSH reassigned Boyd to another ward.
[16] He was not allowed patient interaction during his reassignment.
[17] WSH also reported Boyd’s conduct to both the Department of Health and the police.
[18] During an e-mail exchange on January 22, 2010, Maddox told Cook-Gomez “I don’t trust [Boyd] about anything as he is known to lie.”
[19] On January 26, 2010, Boyd told Maddox’s supervisor that Maddox’s presence at his disciplinary meeting made him uncomfortable.
[20] The supervisor e-mailed a human resources representative, who stated that Maddox could still attend the meeting and WSH would explain her presence as a training exercise.
[21] At the disciplinary meeting, the witness who overheard Boyd say, “[T]hey may fire me[,] but they will sure as hell remember me,” told Maddox that Boyd’s comment related to apple cider and she did not perceive it as threatening.
[a] Maddox discussed the witness’s “apple cider” explanation with human resources but did not include it in the report she provided to WSH’s management.
[b] Boyd asserted that his other comments were not meant as threats.
[c] Instead, he said they related to conversations about a television show, military training, and being careful with a knife while cooking.
[22] Cook-Gomez and Maddox reported their findings to the “Management Resource Team.”
[23] The Management Resource Team reviewed the investigations and decided to present both matters to the chief executive officer (CEO) and recommend that Boyd be disciplined.
[24] In October 2010, the CEO sent Boyd a “Notice of Intent to Discipline.”
[25] In December 2010, Boyd’s attorney sent a letter to WSH regarding his sexual harassment allegations against Maddox.
[26] At that time, WSH decided to have … Rivera reinvestigate all of the allegations against Boyd.
[a] First, Rivera limited his investigation of Boyd’s alleged threats to Boyd’s statement ” they may fire me[,] but they will sure as hell remember me.”
[b] After Rivera learned that the witness recanted her statement, Rivera closed his investigation without examining any of Boyd’s other allegedly threatening statements.
[c] Then, Rivera reinvestigated the allegations that Boyd had failed to assess a patient. In exploring this matter, Rivera relied, in part, on the statements and interviews prepared by Maddox as well as his own interviews with witnesses.
[d] Rivera initially had difficulty scheduling an interview with Boyd.
[e] WSH ultimately decided to not reinterview Boyd.
[f] It relied on the interview conducted by Cook-Gomez and Maddox.
[g] Based on Rivera’s findings, WSH concluded that the original investigation was fair.
[27] On January 5, 2012, Boyd received a letter from WSH’s CEO suspending him for two weeks without pay for failing to assess a patient and for impersonating a coworker.
[28] On January 30, 2012, WSH’s CEO issued Boyd a written reprimand for making threatening comments.
[a] The reprimand relied on Maddox’s report.
[b] The reprimand listed Boyd’s alleged comments, including statements about the damage a chef’s knife could cause, how to burn a woman’s body so it would be unidentifiable, the use of sniper rifles and AK-47s, and how WSH may fire him but it will remember him.
[c] WSH forwarded the reprimand to Boyd’s new supervisor.
[29] Although other employees participated in the conversations about guns and burning bodies, only Boyd was disciplined.
Boyd v. State, 187 Wash.App. 1, 6-9, 349 P.3d 864 (Div. 2 2015) (paragraph formatting added) (footnotes and citations omitted) (all alterations in original except for fact numbering and lettering).
Procedural Facts (9 Total)
The procedural facts for this are as follows:
[1] On March 19, 2012, Boyd filed a complaint against WSH under the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW, alleging sexual harassment and retaliation.
[2] WSH moved for summary judgment.
[a] It argued that both the sexual harassment and the retaliation claims should be dismissed.
[3] The trial court granted WSH’s motion for summary judgment regarding the sexual harassment claim but denied the motion regarding the retaliation claim.
[4] The case proceeded to jury trial, and at the close of Boyd’s case, WSH moved for judgment as a matter of law under CR 50.
[a] It argued that four of the bases for adverse employment actions–the investigation of Boyd’s threatening comments, his written reprimand, and the two transfers to different wards–were not actionable.
[b] It also argued that Boyd failed to show a causal link between the protected activity and any adverse employment actions.
[c] Finally, it argued that it had nonretaliatory reasons for investigating Boyd.
[d] The trial court denied WSH’s CR 50 motion.
[5] The trial court gave the following ” adverse employment action” instruction over WSH’s objection:
An adverse employment action is defined as an employment action or decision that constitutes an adverse change in the circumstances of employment. An employment action is adverse if it is harmful to the point that it would dissuade a reasonable employee from making complaints of sexual harassment or retaliation. An adverse employment action must involve a change in employment conditions that is more than an inconvenience or alteration of job responsibilities.
[6] The trial court gave the following cat’s paw instruction over WSH’s objection:
If a supervisor performs an act motivated by retaliatory animus that is intended by the supervisor to cause an adverse, employment action, and if that act is relied on by the employer and is a substantial factor in the ultimate employment action, then the employer is liable for retaliation.
[7] The trial court rejected WSH’s 17-question proposed special verdict form, which listed several different alleged adverse employment actions.
[a] Instead, the trial court used a special verdict form that asked whether “the defendant retaliate[d] against the plaintiff” and, if so, what is the total amount of damages.
[8] The jury found that WSH had retaliated against Boyd and awarded him $173,000.
[9] WSH appeals.
Boyd, 187 Wash.App. at 9-11 (paragraph formatting added) (citations omitted) (all alterations in original except for fact numbering and lettering).
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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. Attorney Fees
2. Cat’s Paw Theory
3. CR 50 Motions
4. Jury Instructions
5. McDonnell Douglas Framework — Unlawful Retaliation
(A) Step 1 — The Prima Facie Case
(B) Step 2 — The Legitimate Nondiscriminatory Reason
(C) Step 3 — Pretext
6. Verdict Forms
1. ATTORNEY FEES
In this case, Boyd requested Division Two award attorney fees under both RAP 18.1 and RCW 49.60.030. “RCW 49.60.030(2) states,
Any 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.
Boyd, 187 Wn.App. at 21 (hyperlink added).
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2. CAT’S PAW THEORY
The “Cat’s Paw” theory of liability is also known as “Subordinate Bias.” See id at 20. “Under the cat’s paw theory, the animus of a non-decision-maker who has a singular influence may be imputed to the decision-maker.” Id. at 21 n.1 (citing Staub v. Proctor Hosp., 562 U.S. 411, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011)).
(A) THE RULE
“[I]f a supervisor performs an act motivated by … animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action, then the employer is liable.” Id. at 20 (citing Staub v. Proctor Hospital, 562 U.S. 411, 131 S.Ct. 1186, 1194, 179 L.Ed.2d 144 (2011) (footnote omitted)) (alteration in original) (internal quotation marks omitted) (emphasis added).
(B) PROXIMATE CAUSE
“Under Washington law, in order for the act to be a proximate cause, it must be a substantial factor.” Id. (citing City of Vancouver v. Pub. Emp’t Relations Comm’n, 180 Wn.App. 333, 356, 325 P.3d 213 (2014) (“a complainant seeking to use the subordinate bias theory of liability must show that the subordinate’s animus was a substantial factor in the decision”)) (internal quotation marks omitted) (emphasis added).
(C) ORIGINS OF CAT’S PAW THEORY
“The term ‘cat’s paw’ originated in the fable, ‘The Monkey and the Cat,’ by Jean de La Fontaine[:]
As told in the fable, the monkey wanted some chestnuts that were roasting in a fire. Unwilling to burn himself in the fire, the monkey convinced the cat to retrieve the chestnuts for him. As the cat carefully scooped the chestnuts from the fire with his paw, the monkey gobbled them up. By the time the serving wench caught the two thieves, no chestnuts were left for the unhappy cat.
Id. at 21 n.1 (citing Julie M. Covel, The Supreme Court Writes A Fractured Fable of the Cat’s Paw Theory in Staub v. Proctor Hospital [Staub v. Proctor Hospital, 562 U.S. 411, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011)], 51 Washburn L.J. 159, 159 (2011) (footnotes omitted)) (citation alteration in original).
THE CAT & THE MONKEY: “In the workplace, the cat represents an unbiased decision-maker who disciplines an employee unknowingly due to a supervisor’s bias, represented by the monkey.” Id. (citing Edward G. Phillips, Staub v. Proctor Hospital: The Cat’s Paw Theory Gets Its Claws Sharpened, 47 Tenn. B.J. June, 2011, at 21).
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3. CR 50 MOTIONS
(A) STANDARD OF REVIEW
The Court of Appeals of Washington “review[s] a trial court’s denial of a CR 50 motion for judgment as a matter of law de novo, engaging in the same inquiry as the trial court.” Boyd, 187 Wn.App. at 11 (citing Schmidt v. Coogan, 162 Wn.2d 488, 491, 173 P.3d 273 (2007)).
(B) WHEN PROPER
“Judgment as a matter of law is proper only when, viewing the evidence in the light most favorable to the nonmoving party, substantial evidence cannot support a verdict for the nonmoving party.” Id. (citing Schmidt, 162 Wn.2d at 491, 493).
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4. JURY INSTRUCTIONS
(A) STANDARD OF REVIEW
The Court of Appeals of Washington “review[s] alleged errors of law in jury instructions de novo.” Boyd, 187 Wn.App. at 11 (citing Blaney v. Int’l Ass’n of Machinists & Aerospace Workers, Dist.No. 160, 151 Wn.2d 203, 210, 87 P.3d 757 (2004)).
(B) WHEN PROPER
“Jury instructions are proper when they permit the parties to argue their theories of the case, do not mislead the jury, and properly inform the jury of applicable law.” Id. (citing Hue v. Farmboy Spray Co., 127 Wn.2d 67, 92, 896 P.2d 682 (1995)).
(C) USING FEDERAL CASE LAW FOR GUIDANCE
Within the context of jury instructions, “Washington courts look to federal case law interpreting Title VII to guide interpretations of the WLAD.” See Boyd, 187 Wn.App. at 15 (citations omitted).
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5. MCDONNELL-DOUGLAS FRAMEWORK — UNLAWFUL RETALIATION
(A) STEP 1 — THE PRIMA FACIE CASE
“To establish a prima facie case of retaliation for a protected activity under the WLAD, … an employee must show that (1) he engaged in a statutorily protected activity, (2) the employer took an adverse employment action against the employee, and (3) there is a causal connection between the employee’s activity and the employer’s adverse action.” Boyd, 187 Wn.App. at 11-12 (citing Estevez v. Faculty Club of Univ. of Wash., 129 Wn.App. 774, 797, 120 P.3d 579 (2005); Scrivener v. Clark Coll., 181 Wn.2d 439, 446, 334 P.3d 541 (2014)) (footnote omitted).
(1) Element #2 — Adverse Employment Actions
a) More Than Inconvenience or Alteration of Job Responsibilities
“An adverse employment action involves a change in employment that is more than an inconvenience or alteration of one’s job responsibilities.” Boyd, 187 Wn.App. at 13 (citing Alonso v. Qwest Commc’ns Co., 178 Wn.App. 734, 746, 315 P.3d 610 (2013)).
b) Includes Demotion, Adverse Transfer, or Hostile Work Environment
An adverse employment action “includes a demotion or adverse transfer, or a hostile work environment.” Id. (citing Kirby v. City of Tacoma, 124 Wn.App. 454, 465, 98 P.3d 827 (2004) (quoting Robel v. Roundup Corp., 148 Wn.2d 35, 74 n.24, 59 P.3d 611 (2002))).
c) Must Show Reasonable Employee Would Find Challenged Action Materially Adverse
“The employee must show that a reasonable employee would have found the challenged action materially adverse, meaning that it would have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.'” Id. (citing Burlington N. & Santa Fe Ry. v. White, 548 U.S. 53, 68, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006)) (internal quotation marks and citations omitted).
d) Materially Adverse Reassignment Should Be Judged From Perspective of Reasonable Person in Plaintiff’s Position
“Whether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and ‘should be judged from the perspective of a reasonable person in the plaintiff’s position.'” Id. (citing Tyner v. Dep’t of Soc. & Health Servs., 137 Wn.App. 545, 565, 154 P.3d 920 (2007)) (internal quotation marks and citations omitted).
e) Whether an Action Would Be Viewed As Adverse by a Reasonable Employee is Question of Fact for Jury
WA COURTS LOOK TO FEDERAL ANTIDISCRIMINATION LAW TO CONSTRUE WLAD: “Washington courts look to federal antidiscrimination law to construe the WLAD, and we are free to adopt th[e]se theories that further the purposes of our state statute.” Id. (citing Kumar v. Gate Gourmet, Inc., 180 Wn.2d 481, 491, 325 P.3d 193 (2014) (quoting Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 361-62, 753 P.2d 517 (1988))) (alteration in original) (internal quotation marks omitted).
FEDERAL PROVIDES THAT CONTEXT MATTERS IN ANALYZING ACTS OF RETLIATION: “Federal law provides that context matters in analyzing the significance of any given act of retaliation because an act that would be immaterial in some situations is material in others.” Id. (citing Burlington, 548 U.S. at 69) (internal citation and quotation marks).
WHETHER AN ACTION WOULD BE VIEWED AS ADVERSE BY REASONABLE EMPLOYEE IS QUESTION OF FACT FOR JURY: “Accordingly, whether a particular action would be viewed as adverse by a reasonable employee is a question of fact appropriate for a jury.” Id. at 13-14 (citations omitted).
(2) Element #3 — The Causal Connection
MUST SHOW RETALIATION WAS A “SUBSTANTIAL FACTOR” MOTIVATING ADVERSE EMPLOYMENT DECISION: “[A] plaintiff bringing suit under RCW 49.60.210 must prove causation by showing that retaliation was a substantial factor motivating the adverse employment decision.” Boyd, 187 Wn.App. at 17 (citing Allison v. Hous. Auth., 118 Wn.2d 79, 96, 821 P.2d 34 (1991)) (internal quotation marks omitted) (alteration in original) (hyperlink added).
INDEPENDENT INVESTIGATIONS DON’T NECESSARILY RELIEVE EMPLOYER OF LIABILITY FOR ADVERSE EMPLOYMENT ACTION: “[A]n independent investigation does not necessarily relieve the employer of liability for an adverse employment action.” Id. (citing Staub v. Proctor Hospital, 562 U.S. 411, 131 S.Ct. 1186, 1193, 179 L.Ed.2d 144 (2011)).
a) Employer Not Liable if its Investigation Results in Adverse Action for Reasons Unrelated to Supervisor’s Original Biased Action
“[I]f the employer’s investigation results in an adverse action for reasons unrelated to the supervisor’s original biased action … then the employer will not be liable.” Id. at 18 (citing Staub, 131 S.Ct. at 1193) (alteration in original).
b) Employer Will Effectively Delegate Investigation to Biased Supervisor if Investigation Relies on Facts Provided by Biased Supervisor
“But if the independent investigation relies on facts provided by the biased supervisor–as is necessary in any case of cat’s-paw liability–then the employer (either directly or through the ultimate decisionmaker) will have effectively delegated the factfinding portion of the investigation to the biased supervisor.” Id. (citing Staub, 131 S.Ct. at 1193) (internal quotation marks omitted).
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(B) STEP 2 — THE LEGITIMATE NONIDSCRIMINATORY REASON
“If the employee establishes a prima facie case, then the employer may rebut the claim by presenting evidence of a legitimate nondiscriminatory reason for the adverse action.” Boyd, 187 Wn.App. at 12 (citing Estevez, 129 Wn.App. at 797-98; Scrivener, 181 Wn.2d at 446).
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(C) STEP 3 — PRETEXT
“The burden then shifts back to the employee to show that the employer’s reason is pretext.” Boyd, 187 Wn.App. at 12 (citing Estevez, 129 Wn.App. at 798; Scrivener, 181 Wn.2d at 446). “Once the record contains reasonable but competing inferences of both discrimination and nondiscrimination, it is the jury’s task to choose between such inferences.” Id. (citations and internal quotation marks omitted).
(1) Juries Are Empaneled to Determine Credibility and Weigh Evidence
“Juries are empaneled to determine credibility of witnesses and to weigh evidence. [The Court of Appeals does] … not disturb those on appeal.” Id. at 21 (citing State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990)).
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6. VERDICT FORMS
(A) general verdict rendered in multitheory case
In Davis v. Microsoft Corp., 149 Wn.2d 521, 539, 70 P.3d 126 (2003), the “court stated that ‘where a general verdict is rendered in a multitheory case and one of the theories is later invalidated, remand must be granted if the defendant proposed a clarifying special verdict form.'” See Boyd, 187 Wn.App. at 16 (citation omitted)
(b) REVIEW– ABUSE OF DISCRETION
“[A] trial court’s refusal to submit a special verdict form based on the facts of that case is reviewed for abuse of discretion.” Id. (citation omitted).
“A trial court abuses its discretion when its discretionary decision is ‘manifestly unreasonable or based upon untenable grounds or reasons.'” Id. (citation omitted)
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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 when it failed to limit Boyd’s claimed adverse employment actions?
ISSUE #2: Did the trial court err when it denied WSH’s CR 50 motion on a lack of a causal connection?
ISSUE #3: Did the trial court err when it gave the cat’s paw instruction
ISSUE #4: Did Boyd meet his burden of showing that WSH’s reasons for disciplining him were pretext?
ISSUE #5: Is Boyd entitled to attorney fees on appeal?
ISSUE #1: Did the trial court err when it failed to limit Boyd’s claimed adverse employment actions?
(A) NO: THE TRIAL COURT DID NOT ERR when it failed to limit Boyd’s claimed adverse employment actions.
WSH ARGUMENTS: WSH “asserts that the trial court erred when it denied WSH’s CR 50 motion, arguing that [1.] some of the retaliatory actions Boyd alleged were not adverse employment actions, [2.] gave an adverse employment action jury instruction that was contrary to law, and [3.] failed to give WSH’s proposed verdict form.” Boyd, 187 Wn.App. at 12.
(1) ADVERSE EMPLOYMENT ACTIONS: The trial court correctly declined to determine as a matter of law that WSH’s actions were not adverse employment actions.
In this case, “WSH argues that the trial court erred when it denied WSH’s CR 50 motion to dismiss because Boyd failed to prove that WSH took an adverse employment action against him.” Id. The Court disagreed. See id.
a) COURT’S ANALYSIS
THE RULES: See § III(5) (General Rules: McDonnell-Douglas Framework)
“The trial court correctly declined to determine as a matter of law that WSH’s actions were not adverse employment actions.” Boyd, 187 Wn.App. at 13. “Here, viewing the evidence in the light most favorable to Boyd, there is substantial evidence WSH engaged in adverse employment actions.” Id. at 14 (citation omitted).
⇒ “Boyd presented evidence that WSH suspended him for two weeks without pay, issued a written reprimand that contained a detailed list of his alleged threatening comments and disseminated it to his supervisor, removed Boyd from his ward and from patient interaction, and reported him to the Department of Health and the police.” Id.
⇒ “WSH argues that some of these actions were not adverse employment actions; rather, they were ‘legitimate business decisions’ that were disciplinary or investigatory in nature.” Id. (citation omitted). “We express no opinion as to whether these employment actions, taken individually, constituted adverse employment actions as a matter of law.” Id.
⇒ The trial court correctly declined to determine as a matter of law that WSH’s actions were not adverse employment actions. Id. at 13.
⇒ “[T]aken in context, a reasonable jury could find that these actions, taken together, were materially adverse.” Id. at 14.
(2) JURY INSTRUCTION: The trial court properly incorporated the Burlington language into its jury instruction and did not err.
WSH ARGUMENTS: “WSH further argues that the trial court’s adverse employment action jury instruction was contrary to law.” Id. “The trial court’s instruction stated:
An adverse employment action is defined as an employment action or decision that constitutes an adverse change in the circumstances of employment. An employment action is adverse if it is harmful to the point that it would dissuade a reasonable employee from making complaints of sexual harassment or retaliation. An adverse employment action must involve a change in employment conditions that is more than an inconvenience or alteration of job responsibilities.
Id. at 14-15 (citation omitted). “At trial, WSH objected to the instruction because the second sentence is derived from federal case law.” Id. at 15 (emphasis added).
a) COURT’S ANALYSIS
THE RULES: See § III(4) (General Rules: Jury Instructions).
⇒ “The trial court used language from the Supreme Court’s opinion in Burlington, 548 U.S. 53, a Title VII retaliation case, in the adverse employment action instruction.” Boyd, 187 Wn.App. at 15.
⇒ “The Burlington court held that ‘a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, ‘which in this context means it well might have dissuaded a reasonable worker from making or supporting a charge of discrimination.'” Id. (citation omitted).
⇒ “Washington courts look to federal case law interpreting Title VII to guide interpretations of the WLAD.” Id. (citation omitted).
⇒ “Therefore, the trial court properly incorporated the Burlington language into its instruction and did not err.” Id.
(3) VERDICT FORM: The trial court did not err when it failed to give WSH’s proposed verdict form.
WSH ARGUMENTS: “Next, WSH argues that the trial court erred when it used a simpler verdict form and not WSH’s 17-question proposed verdict form. This argument is based on WSH’s assertion that the trial court erred by failing to limit the alleged adverse employment actions presented to the jury.” Id. “WSH cites Davis v. Microsoft Corp., 149 Wn.2d 521, 539, 70 P.3d 126 (2003), to support its argument.” Id. at 16.
a) COURT’S ANALYSIS
THE RULES: See § III(6) (General Rules: Verdict Forms).
In this case, the Court addressed two issues concerning the verdict form: (i) the Davis case; and (ii) the standard of review.
(i) The Davis Case
⇒ As discussed above, the Court found “the trial court did not err when it allowed Boyd to present all of his alleged adverse employment actions to the jury. Therefore, Davis is inapposite and this argument fails.” Boyd, 187 Wn.App. at 16.
⇒ The Court then applied the standard of review finding “the trial court stated it was concerned the special verdict form had too many questions, that it’s broken down too much.” Id. (citation and internal quotation marks omitted).
⇒ “The trial court made it clear that in light of the facts of this case, WSH’s proposed jury form was not something that a jury could work with.” Id. (citation and internal quotation marks omitted).
⇒ “WSH’s proposed 17-question special verdict form is cumulative and confusing. Many of the questions overlap with the jury instructions provided and require the jurors to answer the questions out of order.” Id.
⇒ “Therefore, the trial court’s decision to not give WSH’s special verdict form was reasonable and exercised on tenable grounds. The trial court did not abuse its discretion.” Id.
(B) COURT’S CONCLUSION
“WSH argues that the trial court erred when it denied WSH’s CR 50 motion to dismiss because Boyd failed to prove that WSH took an adverse employment action against him. We disagree.” Id. at 12.
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ISSUE #2: Did the trial court err when it denied WSH’s CR 50 motion on a lack of a causal connection?
(A) NO: THE TRIAL COURT DID NOT ERR when it DENIED WSH’S CR 50 MOTION ON A LACK OF A CAUSAL CONNECTION.
WSH ARGUMENTS: “WSH next argues that the trial court erred when it denied WSH’s CR 50 motion because Boyd failed to provide evidence establishing a causal connection between his activity and WSH’s adverse employment actions.” Boyd, 187 Wn.App. at 16-17. “WSH asserts that there was no evidence that the decision-makers were aware of the sexual harassment claims until after WSH began the investigations against Boyd and there was no evidence that Maddox was involved with the decision to discipline Boyd.” Id. at 17.
(1) COURTS ANALYSIS
“The trial court did not err when it denied WSH’s CR 50 motion on a lack of a causal connection.” Id. at 19. In reaching this conclusion, the Court analyzed: (a) whether Boyd presented evidence that Maddox’s actions were a substantial factor in the investigations and resulting discipline; and (b) whether Rivera’s investigation broke the causal connection between her animus and the adverse employment actions.
a) Boyd presented evidence that Maddox’s actions were a SUBSTANTIAL FACTOR in the investigations and resulting discipline.
THE RULES: See § III(5) (General Rules: McDonnell-Douglas Framework).
In this case, the court held Boyd “presented evidence that Maddox’s actions were a substantial factor in the investigations and resulting discipline.” Boyd, 187 Wn.App. at 17.
⇒ “Although WSH is correct that it did not have notice of Boyd’s sexual harassment claim until after it had started the investigations into Boyd’s conduct, the adverse employment acts commenced after Maddox threatened Boyd to not report her harassment of him.” Id.
⇒ “Boyd presented evidence of Maddox’s animus.” Id. at 18.
⇒ “[Boyd] … testified that, after he told her to stop harassing him she became hostile and threatened to ‘make sure [he] can’t work in any of the 50 states.'” Id. (alteration in original) (citation omitted).
⇒ “Subsequently, Maddox involved herself in investigating the complaints against Boyd.” Id.
⇒ “Although Cook-Gomez was assigned to investigate Boyd’s failure to assess the patient, Maddox collected witness statements and conducted some of the interviews.” Id.
⇒ “WSH assigned Maddox to investigate Boyd’s threatening comments.” Id.
⇒ “Maddox wrote in an e-mail to Cook-Gomez that ‘[she didn’t] trust [Boyd] about anything as he is known to lie.'” Id. (alteration in original) (citation omitted).
⇒ “WSH relied on Maddox’s investigation and fact-finding in disciplining Boyd.” Id.
⇒ “Therefore, a jury could find that Maddox’s acts were a proximate cause of the adverse employment actions.” Id.
b) Rivera’s INVESTIGATION did not break the causal connection between her animus and the adverse employment actions.
THE RULES: See § III(5) (General Rules: McDonnell-Douglas Framework).
In this case, the Court concluded “Rivera’s investigation did not break the causal connection between her animus and the adverse employment actions.” Boyd, 187 Wn.App. at 17. In so doing, the Court considered the following facts:
⇒ “Rivera’s additional investigations are not supervening causes.” Id. at 18
⇒ “Rivera’s reinvestigation of Boyd’s failure to assess the patient relied on facts provided by the biased supervisor, Maddox.” Id.
⇒ “At the time of Rivera’s investigation, some witnesses could not clearly recall the events and instead relied on the statements collected by and interviews conducted by Maddox.” Id. at 18-19.
⇒ “And, Rivera did not reinvestigate Boyd’s threatening comments.” Id. at 19
⇒ “Although Maddox’s report included several different comments and the CEO’s reprimand mentioned the same comments, Rivera investigated only one of the alleged comments–‘they may fire me[,] but they will sure as hell remember me.'” Id. (alteration in original) (citation omitted).
⇒ “He stopped his investigation after learning that the witness who reported this statement had recanted.” Id.
(2) COURT’S CONCLUSION
“The trial court did not err when it denied WSH’s CR 50 motion on a lack of a causal connection.” Boyd, 187 Wn.App. at 19.
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ISSUE #3: Did the trial court err “when it gave the cat’s paw instruction”?
(A) NO: The trial court did not err WHEN IT GAVE THE CAT’S PAW INSTRUCTION.
WSH ARGUMENTS: “Next, WSH argues that the trial court erred when it gave the cat’s paw instruction.” Boyd, 187 Wn.App. at 19. The Court disagreed. See id.
(1) COURT’S ANALYSIS
RULES: See § III(2) (General Rules: Cat’s Paw Theory).
In this case, WSH “contends that [a)] Maddox did not act with discriminatory animus, [b)] Rivera’s investigation was a supervening cause of any animus, and [c)] the instruction was inconsistent with the jury instruction on retaliation.” Id.
a) Boyd presented evidence that Maddox acted out of animus.
“First, Boyd presented evidence that Maddox acted out of animus.” Id.
⇒ “Before the investigations began, she told Boyd that she would ‘make sure that [he] can’t work in any of the 50 states’ after he rejected her advances.” Id. (citation omitted).
⇒ “She also told Cook-Gomez, the other investigator, that she knew Boyd was a liar.” Id.
⇒ “Maddox then reported Boyd’s conduct to management and assisted with fact gathering for both investigations against Boyd.” Id.
⇒ “WSH relied on those facts in determining Boyd’s discipline.” Id.
b) Rivera’s investigation was not a supervening cause.
“Second, Rivera’s investigation was not a supervening cause.” Id.
⇒ Rivera’s “review of Cook-Gomez’s investigation relied on information Maddox prepared.” Id.
⇒ “And [Rivera] … did not complete a review of Maddox’s investigation.” Id.
⇒ “Instead, [Rivera] … stopped his review after determining that a witness to one of the alleged threats had recanted.” Id.
⇒ “Despite this lack of an independent investigation, WSH reprimanded Boyd for all of his alleged threatening comments.” Id.
c) The cat’s paw instruction was not inconsistent with the substantial factor requirement.
“Third, the cat’s paw instruction was not inconsistent with the substantial factor requirement.” Boyd, 187 Wn.App. at 20.
⇒ The cat’s paw instruction read, “If a supervisor performs an act motivated by retaliatory animus that is intended by the supervisor to cause an adverse employment action, and if that act is relied on by the employer and is a substantial factor in the ultimate employment action, then the employer is liable for retaliation.” Id. (emphasis added) (citation omitted).
⇒ “This instruction is consistent with the law on subordinate bias liability.” Id.
⇒ “Under Washington law, in order for the act to be a proximate cause, it must be a substantial factor.” Id. (citing City of Vancouver v. Pub. Emp’t Relations Comm’n, 180 Wn.App. 333, 356, 325 P.3d 213 (2014) (“a complainant seeking to use the subordinate bias theory of liability must show that the subordinate’s animus was a substantial factor in the decision”)) (internal quotation marks omitted).
⇒ “The trial court’s instruction properly informed the jury of the law.” Id.
⇒ “It required the plaintiff to prove that the supervisor’s animus was a substantial factor in the decision.” Id.
(2) COURT’S CONCLUSION
“The trial court did not err when it gave the cat’s paw instruction.” Id. at 20.
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ISSUE #4: Did Boyd meet his burden of showing that WSH’s reasons for disciplining him were pretext?
(A) YES: BOYD MET HIS BURDEN OF SHOWING THAT wsh’S REASONS FOR DISCIPLINING HIM WERE PRETEXT
“Finally, Boyd met his burden of showing that WSH’s reasons for disciplining him were pretext.” Boyd, 187 Wn.App. at 20 (citation omitted).
(1) COURT’S ANALYSIS
THE RULES: See § III(5) (General Rules: McDonnell-Douglas Framework). In this case, the Court worked through the McDonnell-Douglas Framework and found the following:
a) WSH presented nondiscriminatory reasons for disciplining Boyd
⇒ “WSH presented nondiscriminatory reasons for disciplining Boyd: he failed to timely assess a patient and he made inappropriate comments.” Boyd, 187 Wn.App. at 20.
b) Boyd presented evidence of pretext
⇒ “Boyd then presented evidence that the reasons were pretext. Maddox told Boyd she would retaliate, he was the only employee disciplined for inappropriate comments even though other employees were engaged in the conversations, and WSH disciplined him for making threatening statements even though it had notice of Maddox’s bias and failed to conduct a thorough independent investigation.” Id. at 20-21.
c) Case must go to jury
⇒ “Once the record contains reasonable but competing inferences of both discrimination and nondiscrimination, it is the jury’s task to choose between such inferences.” Id. at 21 (citations and internal quotation marks omitted).
(2) COURT’S CONCLUSION
“Juries are empaneled to determine credibility of witnesses and to weigh evidence. We do not disturb those on appeal.” Id. (citing State v. Camarillo, 115 Wn.2d 60, 71, 794 P.2d 850 (1990)). “Here, the jury chose to believe Boyd. We affirm.” Id.
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ISSUE #5: Is Boyd entitled to attorney fees on appeal?
(A) YES: We affirm and award Boyd attorney fees on appeal.
“Boyd requests attorney fees under RAP 18.1 and RCW 49.60.030.” Boyd, 187 Wn.App. at 21.
(1) COURT’S ANALYSIS
THE RULES: See supra § III(1) (General Rules: Attorney Fees).
⇒ “Because WSH’s appeal fails, we award Boyd attorney fees on appeal.” Boyd, 187 Wn.App. at 21 (citing Martini v. Boeing Co., 137 Wn.2d 357, 377, 971 P.2d 45 (1999)).
(2) COURT’S CONCLUSION
“We affirm and award Boyd attorney fees on appeal.” Id.
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