IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
BRIAN LONG, No. 70529-6-1 Appellant, DIVISION ONE
BRUSCO TUG & BARGE, INC., a <^2 Washington corporation; BO BRUSCO and his marital community, UNPUBLISHED OPINION en Respondents, FILED: August 11, 2014 — f/>r;' and :5° BRUSCO MARITIME CO., a re Washington corporation,
Defendant.
Becker, J. — Appellant Brian Long sued his employer, alleging retaliatory
termination. Long appeals from a defense verdict. We affirm the challenged
evidentiary rulings and conclude Long did not establish juror misconduct that
would demand a new trial.
The respondent is Long's former employer, Brusco Tug & Barge. Brusco
provides cargo barging and towing services at ports and at sea. Long began
working at Brusco in 1995 as a deckhand. In 2007, Long accepted a position as No. 70529-6-1/2
a ship assist captain with Brusco at the Port of Everett. In April 2009, Long was
promoted to port manager for Brusco's operations at the Port of Everett.
In September 2009, Long hired Anthony Morgan as a deckhand. Morgan
has a prosthetic leg. Long believed Morgan could handle the job, but chief
executive offer Bo Brusco complained about the hire. Morgan filed a disability
discrimination charge against Brusco with the Equal Employment Opportunity
Commission later that month.
At the end of December 2009, Brusco terminated Long from his
managerial position. Long's theory at trial was that Brusco terminated him in
retaliation for hiring Morgan and opposing what Long claimed was Brusco's
discrimination against Morgan. Brusco claimed that Long was terminated
because of his mismanagement of an incident involving the ship Sevilla on
December 21, 2009.
As port manager for Brusco, Long was responsible for ensuring all vessels
were properly manned. He was expected to act as a second ship assist captain
in the event that an incoming ship requested one. Long went on vacation on
December 21, 2009. The Sevilla was scheduled to come into the Port of Everett
that day at 4:30 p.m. with a single tug assist. Long testified that he had arranged
for John Juker, his second-in-command, to captain the tug that would assist the
Sevilla into port. He also testified that he had arranged for J.C. Anderson to be
available to captain a second tug if the Sevilla needed one. No. 70529-6-1/3
As it turned out, the Sevilla was delayed eight hours and did not arrive
until after midnight on December 22. A second tug assist was needed, but
Anderson was not available to captain the tug. David Brusco, Bo Brusco's son,
ended up acting as second captain to assist the Sev/7/a into port. Brusco was
unhappy that Long did not have a second tug assist lined up for the Sevilla.
On November 2, 2011, Long filed this suit alleging that Brusco unlawfully
retaliated against him for opposing what he reasonably believed to be Brusco's
discrimination against Morgan. Long argued the Sevilla incident was pretext.
Trial began April 22, 2013. The jury returned a defense verdict, 10-2. Long
appeals.
Exclusion of comparator evidence
Long contends the court abused its discretion in excluding evidence that
Brusco treated comparably situated employees less harshly.
To make a case for retaliatory termination, a former employee must show
retaliatory motive for the alleged adverse employment action. Johnson v. Dep't
of Social & Health Servs.. 80 Wn. App. 212, 227, 907 P.2d 1223 (1996).
Disparate treatment of similarly situated employees constitutes circumstantial
evidence supporting a finding of retaliation. Johnson, 80 Wn. App. at 227.
Individuals are similarly situated when they have similar jobs and display similar
conduct. Vasquez v. County of Los Angeles, 349 F.3d 634, 640-41 (9th Cir.
2003). But the employees need not be identically situated. Earl v. Nielsen Media
Research. Inc.. 658 F.3d 1108, 1114 (9th Cir. 2011). No. 70529-6-1/4
The trial court allowed comparator evidence as to Rich Nordstrom, Adam
Wellenbrock, and David Brusco. Nordstrom was a tug captain who was not fired,
though he failed to show up for many jobs and was once caught with alcohol on a
ship in violation of Coast Guard regulations, and unable to captain. Wellenbrock
was hired back after receiving several write-ups for, among other things, being
absent and insubordination. David Brusco was not fired, though he was late for a
ship assist while working as Brusco's port manager at the Port of Everett,
resulting in a delay.
Long contends the court erred by excluding evidence as to Craig Petit,
Nick Bernert, Joe Bromley, Corey Johnson, and Mark Guinn. Petit, a deckhand,
was not fired, though he allegedly missed a job in September 2010 after being
pulled over and questioned on suspicion of drunk driving. Bernert, an engineer,
was rehired despite having previously delayed a ship run for eight hours by
showing up late. Bromley, an ocean tugboat captain, was promoted to
supervisor despite pleading guilty to misdemeanor assault. Johnson, a
deckhand, missed a number of jobs but was not fired. Guinn, Brusco's manager
in another location, was not immediately fired although his involvement in the
discharge of dredged materials without a permit subjected Brusco to significant
civil and criminal liability for oil spillage. No. 70529-6-1/5
The trial court explained its rationale in a ruling made on April 22, 2013:
When we talk generally about deckhands or engineers, I think those are not analogous and would not be appropriate. When we talk about Mr. Guinn, the bay area manager, we're talking about the oil spill and he was, in fact, fired so it really doesn't seem at all analogous as well.
The next day, the court provided further explanation:
I have had a chance to take a look at the cases, and the cases do generally require that, for comparator evidence to be admissible, that there be a sufficient similarity in both ... the jobs in question and the purported misconduct in question, such that the inference can be drawn if there was something more at play than simply discipline for that particular conduct. ... it doesn't have to be an identical situation either in terms of the purported misconduct or the job. It's a relatively flexible standard. The question is whether or not the inference can be drawn.
The court thus decided to exclude Long's proposed comparators who were
involved in assaults, kidnappings, and oil spills, as well as those who were
deckhands or engineers, as being not sufficiently similar.
Long contends the trial court's approach to admitting comparator evidence
was too narrow. He argues that the excluded comparators caused or risked
significant ship delay or else engaged in criminal conduct, yet they were not
treated as harshly as he was.
A showing that the employer treated similarly situated employees more
favorably can be probative of pretext. However, employees in supervisory
positions "are generally deemed not to be similarly situated to lower level
employees." Vasquez, 349 F.3d at 641. A company that places some level of
managerial and supervisory authority in one individual may hold that individual to 5 No. 70529-6-1/6
a higher standard than those in whom less authority is vested. Treating
employees who were involved in assaults and alcohol abuse less harshly than a
manager who was unprepared for a tug assist does not give rise to a strong
inference of pretext.
We find no abuse of discretion in the trial court's rulings on comparator
evidence.
Impeachment with prior inconsistent statement
Long contends the trial court erred by refusing to let him impeach the
testimony of Anderson with a recording of a statement Long made to his
investigator.
A party may attack the credibility of a witness by impeachment with a prior
inconsistent statement. ER 613. The test for inconsistency is determined by the
whole impression or effect of the two statements, not by individual words or
phrases. The question is whether the two utterances are inconsistent—do they
appear to have been produced by inconsistent beliefs? State v. Dickenson, 48
Wn. App. 457, 467, 740 P.2d 312, review denied, 109Wn.2d 1001 (1987).
Brusco's version of the events surrounding the Sevilla was that Long had
not adequately prepared for the possibility that while he was on vacation, an
incoming ship would need a second tug assist. Long's version was that he had
arranged for Anderson to be available, and Anderson would have been available
if the Sevilla had arrived on schedule. According to Long, Juker did not tell him
the Sevilla was delayed, and thus, Long did not have the opportunity to make No. 70529-6-1/7
calls and find a substitute. On October 29, 2012, while preparing for trial, a
member of Long's attorney's office interviewed Anderson by phone and made a
recording of part of the call. In the call, Anderson confirmed that Long had called
him in late 2009 to see if he would be willing to cover a second tug job "if
something came up in Everett." Anderson also said that he had previously
spoken with someone at Brusco "about having permission to cover" a second tug
job.
Anderson was questioned on direct examination in the plaintiff's case on
April 24, 2013. When asked to confirm that Brusco employee Kevin Lehto or
Tom Campbell had called to ask if he could assist Long as relief captain,
Anderson answered that he never received a call from them. When asked about
his prior statement to the investigator, Anderson said he was busy driving a boat
at the time and did not pay much attention to the call. Long asked to impeach
Anderson by playing a recording of that interview. The court refused, and the
examination of Anderson proceeded. Anderson testified that he had once called
Lehto to ask generally about the possibility of working with Brusco, but he did not
pursue it because he was not interested at the time. Anderson remembered
getting a call from Long, but "I told him that I could not do the job for him, that I
wasn't interested in it, that I had other things." Presented with telephone call logs
showing that he and Long had spoken on the phone for seven minutes on
December 18, 2009, and two minutes on December 21, 2009, Anderson said he
could not remember what was discussed on those particular dates. No. 70529-6-1/8
Long contends the court abused its discretion. However, as the court
explained, the answers Anderson gave in the recorded interview were not
inconsistent with the answers he gave at trial. In the recorded interview,
Anderson remembered having a conversation with Lehto, Long, or Campbell
about getting authorized to cover a second tug job, but he did not say that Lehto
or Campbell initiated the call. He remembered getting a call from Long, but he
did not say he agreed to serve as a tug captain. The trial court properly
exercised its discretion to refuse impeachment.
Admissibility of the "Westwood notes" under ER 904
Long obtained a few pages of handwritten notes in production from
Westwood Shipping, the Sevilla's owner. The notes obviously concern the
Sevilla incident on December 21, 2009, but they are not self-explanatory. In a
joint statement of evidence proposed under ER 904, Long offered the notes into
evidence. ER 904, "Admissibility of Documents," provides that certain
documents proposed as exhibits after appropriate notice "shall be deemed
admissible" unless an objection is timely made. ER 904(b). Brusco timely
objected.
The court refused to admit the notes. Long argues the evidence was "per
se admissible" under ER 904.
During trial, Long filed a motion for a trial subpoena for a records
custodian from Westwood Shipping. Brusco complained that the records
custodian was unnecessary because authenticity of the documents was not in
8 No. 70529-6-1/9
dispute. Long noted that Brusco had also raised a hearsay objection and said
the subpoena would be withdrawn "if they will stipulate that they're business
records kept in the ordinary course of business." Brusco stipulated that the
documents were business records.
Later, during the testimony of Juker, Long offered the notes into evidence
as proof of the timeline of the Sevilla incident. He wanted to argue to the jury,
based on the notes, that Juker failed to let him know about the Sevilla's delay in
time for him to call Anderson or make alternative plans for a substitute.
According to Long, Brusco's stipulation removed any objection to the notes on
the basis of authenticity or hearsay. Brusco responded that the stipulation was
not to admissibility, and it only relieved Long of the responsibility of producing a
custodian to prove the notes were business records. "Even if those handwritten
notations were a business record for purposes of overcoming a hearsay issue, a
records custodian still would not be able to describe what was meant by those
notations."
Agreeing with Brusco, the trial court excluded the notes: "It takes an awful
lot of explanation to try to see what the significance of the document might be. I
think there's—I don't think a custodian could lay the foundation for it. It would
have taken a witness to explain it in order to get that interpretation before the
jury."
To support his argument that documents offered under ER 904 are "per se
admissible," Long cites Miller v. Arctic Alaska Fisheries Corp., 133 Wn.2d 250, No. 70529-6-1/10
259, 944 P.2d 1005 (1997). Miller explains that there is a presumption of
admissibility under ER 904. Where documents are timely offered in accordance
with the rule, the rule creates an expectation of admission in the absence of a
timely objection. Miller, 133 Wn.2d at 260. It is error to exclude documents on
the basis of an objection that is untimely.
What Long overlooks is that objections to relevancy of a document need
not be made until trial. ER 904(c)(2). At trial, Brusco objected to admission of
the handwritten notes on the ground that they were meaningless without a
witness who could explain them. While Brusco and the trial court did not
explicitly use the word "irrelevant" to explain why the notes should not be
admitted, lack of relevance was the problem. A meaningless document cannot
be relevant. Long's plan to have counsel explain the notes in argument to the
jury would not have been a fair or adequate substitute for some testimony
providing a foundation for interpreting the meaning of the notes.
The trial court appropriately exercised its discretion to exclude the
Westwood notes.
Motion for a new trial
After the defense verdict, Long moved for a new trial, alleging juror
misconduct. Long obtained affidavits from jurors indicating that during
deliberations one of the jurors made extensive comments based on his naval
experience. The comments were to the effect that there was no way any
maritime organization would have allowed a person with a prosthetic leg to work
10 No. 70529-6-1/11
as a deckhand and the juror was aware of the law and no law would permit it
because of the safety risk. Long contends the trial court erred by denying his
motion.
Appellate courts will generally not examine how the jury collectively or as
individuals goes about reaching its verdict. Richards v. Overlake Hosp. Med.
Ctr., 59 Wn. App. 266, 270, 796 P.2d 737 (1990), review denied, 116 Wn.2d
1014 (1991). An exception to this rule exists where a juror injects novel evidence
into the deliberations. Verdicts are upheld unless (1) the affidavits of the jurors
allege facts showing misconduct and (2) those facts support a determination that
the misconduct affected the verdict. Richards, 59 Wn. App. at 271. Juror
affidavits may be considered only to the extent that they do not attest to matters
inhering in the verdict. Richards, 59 Wn. App. at 272. The individual or collective
thought process leading to a verdict inheres in that verdict and cannot be used to
impeach it. Richards, 59 Wn. App. at 272.
A trial court has discretion to grant or deny a new trial for juror misconduct,
which will not be overturned absent an abuse of discretion. Richards, 59 Wn.
App. at 271. A trial court abuses its discretion when its decision is manifestly
unreasonable, exercised on untenable grounds, or for untenable reasons.
Richards, 59 Wn. App. at 271. "'A strong, affirmative showing of misconduct is
necessary in order to overcome the policy favoring stable and certain verdicts
and the secret, frank and free discussion of the evidence by the jury.'"
11 No. 70529-6-1/12
Breckenridge v. Valley Gen. Hosp., 150 Wn.2d 197, 203, 75 P.3d 944 (2003),
quoting State v. Balisok, 123Wn.2d 114, 117-18, 866 P.2d 631 (1994).
Long cites six cases to support his argument that the juror committed
misconduct. The first case is Adkins v. Aluminum Co. of America, 110 Wn.2d
128, 138, 750 P.2d 1257 (1988). In Adkins, jurors in a personal injury case
looked up "negligence" and "proximate cause" in Black's Law Dictionary. The
Supreme Court affirmed the trial court's decision to grant the motion for a new
trial because Black's Law Dictionary definitions were extrinsic information not
admitted into evidence at trial and the trial court did not abuse its discretion when
it found that the extrinsic evidence affected the verdict. Adkins, 110 Wn.2d at
137.
The second case is Bouton-Perkins Lumber Co. v. Huston, 81 Wash. 678,
143 P. 146 (1914). In Bouton-Perkins, jurors consulted a pamphlet purporting to
contain relevant Washington law during deliberation. The trial court denied a
motion for new trial. The Supreme Court reversed and remanded with
instructions to grant the motion for new trial because the pamphlet was extrinsic
This case is not like Adkins or Bouton-Perkins. The juror did not bring in
any written material like a dictionary or a legal pamphlet. Although he spoke
from notes, there is no evidence that he compiled the notes by consulting
extrinsic evidence.
12 No. 70529-6-1/13
The third case is State v. Clausing, 147 Wn.2d 620, 56 P.3d 550 (2002).
In Clausing, the Supreme Court reversed a criminal conviction after finding that
an expert improperly testified on law, usurping the role of the trial judge. This
case is not on point as it deals with trial court error in controlling the testimony of
a witness, not an allegation that a juror brought in extrinsic evidence of law. As
Adkins demonstrates, it is clear that a juror commits misconduct by bringing in
extrinsic evidence of law. The question remains: did the juror in this case bring
in extrinsic evidence of law? Clausing does not help to answer that question.
The fourth case is Fritsch v. J.J. Newberry's, Inc., 43 Wn. App. 904, 720
P.2d 845, review denied, 107 Wn.2d 1006 (1986). In Fritsch, a juror in a
personal injury case told the other jurors that after he injured his foot and was
unable to jog for a month, an attorney told him a reasonable sum for his pain and
suffering was $1,000. The Supreme Court found juror misconduct because the
juror injected evidence from outside the record and it affected a material issue in
the case. Fritsch, 43 Wn. App. at 907.
The fifth case is Halverson v. Anderson, 82 Wn.2d 746, 513 P.2d 827
(1973). In Halverson, a teenager sued for personal injuries suffered in an auto
accident. Only the question of damages was submitted to the jury. There was
no evidence that the boy's earning capacity had been impaired, but the jury
heard that he had an ambition to be a pilot and was studying to be a surveyor.
During deliberations, one juror told the others that pilots generally make $2,000
per month and retire at age 40 and civil surveyors earn $1,500 per month. The
13 No. 70529-6-1/14
trial court granted a defense motion for new trial. The Supreme Court agreed
that the juror had committed misconduct by bringing in extrinsic evidence and
held that the trial court did not err in concluding that it influenced the jury's
decision to award substantial damages.
The sixth case is Loeffelholz v. CLEAN., 119 Wn. App. 665, 82 P.3d
1199, review denied, 152 Wn.2d 1023 (2004). In Loeffelholz, a sheriff's deputy
and county sued a variety of defendants, including a citizen's group, for
defamation and malicious prosecution. The jury found for the plaintiff deputy as
to the defamation claim and awarded $240,000 ($60,000 per defendant). Juror
affidavits showed that the basis for the damage award was one juror's statement
that "'he could figure out how much public servants earned and estimated Mr.
Loeffelholz's average salary at $30,000.'" Loeffelholz, 119 Wn. App. at 679. The
trial court granted a new trial as to damages. This court affirmed the ruling,
relying on Halverson. The jury had not been instructed to consider loss of
earning capacity, and the salary and retirement information placed by the juror
before his fellow jurors "was wholly outside the evidence and not subject to
scrutiny by either party." Loeffelholz, 119 Wn. App. at 683.
In Fritsch, Halverson, and Loeffelholz, evidence was deemed extrinsic
because it was outside the scope of what had been discussed in court. In each
case, a juror urged other jurors to consider assertions of fact that the disfavored
party had no opportunity to rebut. That is not the case here. The juror's
discussion echoed Bo Brusco's testimony about the liability the company would
14 No. 70529-6-1/15
be exposed to as the result of hiring Morgan to work on a boat when he had not
passed a physical. The juror used his personal experience, not extrinsic
evidence, to evaluate information received in court about Brusco's treatment of
Morgan and Long's reaction to it.
This case is most like Richards, in which parents brought a medical
malpractice action against the doctors who delivered their baby. The parents
alleged the delivery team was negligent in the care of their newborn, resulting in
severe neurological deficits. The defendants claimed the newborn's deficits were
caused before the birth. During voir dire, a juror disclosed that she had medical
training and worked with developmentally disabled children as an occupational
therapist. The jury returned a 10-2 defense verdict. After the verdict, the
plaintiffs brought a motion for new trial based on affidavits that the juror opined
during deliberations that the mother's illness at 20 weeks could explain the
infant's condition. The motion was denied. This court affirmed, concluding that
the affidavits did not establish that the juror brought extrinsic evidence into
deliberations. The court discounted the Richards' allegation that "the information
imparted by juror Geisler was highly specialized and was uttered in the vein of
being an expert." Richards, 59 Wn. App. at 274. What was more significant was
that "on voir dire juror Geisler's background was fully disclosed and the Richards
did not remove her from the jury." Richards, 59 Wn. App. at 274.
Here, as in Richards, the juror's background was disclosed in voir dire. At
most, he stated in deliberations that he was unaware of any law that would
15 No. 70529-6-1/16
permit a person with a prosthetic leg to work as a deckhand. This was not a
positive statement about the law, and it did not conflict with instructions given to
the jury by the court. Even though the information the juror imparted may have
been highly specialized and uttered in the vein of being an expert, it was his own
thought process and it inhered in the verdict.
We conclude the trial court acted within its discretion by denying the
motion for a new trial.
Affirmed.
WE CONCUR:
Ul v-cOO.,