IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DOMINIQUE KEIMBAYE, No. 85888-2-I Appellant, DIVISION ONE v. UNPUBLISHED OPINION PROVIDENCE REGIONAL MEDICAL CENTER EVERETT, a Washington Non-Profit Corporation, and CHRISTOPHER S. KORTENDICK, an individual,
Respondents.
HAZELRIGG, C.J. — Dominique Keimbaye, representing himself, appeals the
dismissal of his lawsuit against his former employer Providence Regional Medical
Center Everett, his supervisor Travis John, and his coworker Christopher
Kortendick, where he alleged several violations of the Washington Law Against
Discrimination (WLAD).1 The trial court dismissed Keimbaye’s claims for wrongful
discharge and retaliation on summary judgment. At the close of evidence, the
court granted Providence’s CR 50 motion for a directed verdict2 dismissing
Keimbaye’s remaining hostile work environment claims. Because the trial court
did not err, we affirm.
1 Ch. 49.60 RCW. 2 “Motions for directed verdict and motions for judgment notwithstanding the verdict were
renamed ‘motions for judgment as a matter of law’ effective September 17, 1993.” Delgado Guijosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 915, 32 P.3d 250 (2001) (quoting Litho Color, Inc., v. Pac. Emp’rs Ins. Co., 98 Wn. App. 286, 298 n.1, 991 P.2d 638 (1999)). However, because both parties use the term “directed verdict” throughout their briefing, we generally use that term for the interest of clarity. No. 85888-2-I/2
FACTS
On December 27, 2017, Providence hired Keimbaye as an anesthesia
technician at its regional medical center in Everett. The offer letter stated that
Keimbaye’s employment was subject to a collective bargaining agreement and
Providence could end his employment at any time during his probationary period.
The letter named Travis John as Keimbaye’s supervisor. As part of the onboarding
process, Keimbaye signed an “Acknowledgement of Commitment to the Code of
Conduct” which specified that compliance was “a condition for, but not a guarantee
of, continued employment.” Providence’s “Standards of Conduct,” in turn,
described “[r]egular and predictable attendance” as an “essential function” and
stated that “[a]ll caregivers are required to accurately record their time worked.”
In February 2018, Providence’s timekeeper and scheduler Chris Maddy
informed John that Keimbaye had been coming in late to work almost every day.
John verbally reminded Keimbaye that he was expected to arrive on time. Despite
John’s apparent assertion in an e-mail documenting the exchange that Keimbaye
“agree[d] to work on it,” he continued to be late to work. On April 3, John spoke
again with Keimbaye regarding his tardiness. In another e-mail memorializing the
conversation, John specified that Keimbaye needed to “put more effort into being
on time” in accordance with Providence’s absence and lateness policy. On June
11, Maddy informed John that Keimbaye’s timekeeping records appeared to show
“a pattern of manipulation and timecard fraud.”
On June 12, John placed Keimbaye on administrative leave pending an
investigation into his tardiness and timekeeping records. The investigation
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established that during his six-month probationary period, Keimbaye had 51
instances of reporting late for work and 74 occurrences of accumulating
unapproved overtime by working late without permission from management, a
practice Maddy characterized as “padding the timecard.” On June 22, Providence
terminated Keimbaye’s employment for “Misconduct/Policy Violation.”
However, while the investigation was pending, Keimbaye called
Providence’s human resources hotline on June 15 to report that anesthesia
technician Opal Lonon had been sexually harassing him since January 2018.
Keimbaye alleged that Lonon “hugged [him] tightly” and “coiled her legs around
[his] legs.” Keimbaye further alleged that the harassment persisted even though
he told Lonon the conduct was unwelcome and she “ha[d] gone around telling
other employees that [he] [was] taking advantage of the system to get more hours,
which [was] not true.”
Providence senior human resources consultant Marilyn Rice investigated
Keimbaye’s allegations and issued her report on June 25. Rice interviewed
Keimbaye, Lonon, and several other individuals that Keimbaye identified as
witnesses, including his supervisor John and his coworker Chris Kortendick. None
of the interviewees corroborated any part of Keimbaye’s allegations except Lonon,
who admitted that on one occasion in early January 2018 she hugged Keimbaye
with both arms and wrapped her leg around his. Lonon denied Keimbaye’s
remaining allegations. Rice found that Keimbaye lacked credibility as the
coworkers he identified as witnesses did not corroborate his claims, but that Lonon
was credible because she admitted to the January 2018 incident. Rice
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recommended that John, as supervisor, “take appropriate disciplinary action to
address Ms. Lonon’s inappropriate conduct.” On June 28, John took corrective
action in the form of a written warning memorializing Lonon’s policy violation and
notifying her that continued violations could result in discharge from employment.
John also sent Keimbaye an investigation closeout letter.
Almost three years later, on June 8, 2021, Keimbaye filed a complaint under
the WLAD against Providence, Kortendick, and John alleging “national origin
discrimination/harassment,” “sex discrimination/harassment,” and “retaliation.” In
the complaint, Keimbaye described himself as a Black male who immigrated from
the Republic of Chad and speaks fluent English with an accent. Keimbaye alleged
that John and Kortendick were Keimbaye’s “direct supervisors” and Lonon
frequently harassed him in their presence, but they laughed and refused to help.
He further alleged that John, Kortendick, and other employees treated him
“differently and negatively compared to non-African employees” and he was
terminated in retaliation for reporting harassment.
Keimbaye represented himself through all stages of this litigation. During
the course of discovery, the trial court found that Keimbaye’s pursuit of frivolous
motions may have warranted an award of fees and costs to Providence pursuant
to CR 37 and CR 11, but refrained from ordering sanctions “with the understanding
that [Keimbaye] will comply with the court’s orders in the future.” On February 3,
2022, the trial court denied Keimbaye’s motion to compel discovery, found that the
motion violated CR 11(a), and awarded Providence fees incurred in responding to
the motion contingent upon presentation of a cost bill. Keimbaye petitioned this
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court for discretionary review of the resulting cost bill order and a commissioner of
this court denied review.
In April, 2022, Providence moved for summary judgment on all of
Keimbaye’s claims. Keimbaye filed a cross motion for summary judgment, relying
on his own declaration and attachments thereto as well as the declaration and
deposition of Yulia Husted, an anesthesia technician student clinical intern who left
Providence in March 2018. In her declaration, Husted asserted that Keimbaye
was subject to racism and sexual harassment “almost daily” and he was
“maliciously and indifferently accused and discharged” from his job. During her
deposition, however, Husted clarified that she never witnessed John harassing or
mistreating Keimbaye.
On May 20, 2022, the trial court granted summary judgment dismissal of
Keimbaye’s claims for wrongful discharge and retaliation but denied summary
judgment as to his hostile work environment claims. The trial court dismissed
Keimbaye’s wrongful discharge claim because he did not present “any evidence
to establish a prima facie case that his termination from employment was
motivated in any way by his race, sex, or national origin.” Providence “presented
substantial unrebutted evidence that [Keimbaye] was terminated because of his
repeated violations of the employer’s policies regarding clocking in and clocking
out from work,” and Keimbaye “produced no evidence that the reasons given for
his termination were pretextual.” Regarding his retaliation claim, the trial court
ruled that Keimbaye “did not present any evidence to establish a prima facie case
that he was the subject of any adverse employment action because of any
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protected activity.” The court also dismissed John as a party, leaving only
Providence and Kortendick as named defendants. Providence and Keimbaye
each petitioned this court for discretionary review of the partial summary judgment
order, and a commissioner of this court denied review.
Trial on the hostile work environment claim commenced in September 2023.
Keimbaye moved to designate Husted’s deposition in lieu of her testimony on the
ground that she was unavailable to testify at trial. Keimbaye sought to admit
unauthenticated text messages as an offer of proof. Providence opposed the
motion, arguing that Keimbaye had failed to offer admissible evidence establishing
that Husted was unavailable. The trial court agreed with Providence and ruled that
Husted’s deposition could not be read to the jury. At the conclusion of Keimbaye’s
case in chief, Providence moved for judgment as a matter of law under CR 50(a).
On September 12, 2023, the trial court granted Providence’s motion and dismissed
Keimbaye’s remaining claims.
Keimbaye timely appealed.
ANALYSIS
I. Scope of Appellate Review
As a preliminary matter, we address standards governing the availability
and scope of our review. “The scope of a given appeal is determined by the notice
of appeal, the assignments of error, and the substantive argumentation of the
parties.” Clark County v. W. Wash. Growth Mgmt. Hr’gs Bd., 177 Wn.2d 136, 144,
298 P.3d 704 (2013). An appellant must provide “argument in support of the issues
presented for review, together with citations to legal authority and references to
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relevant parts of the record.” RAP 10.3(a)(6). “Strict adherence to [RAP 10.3] is
not merely a technical nicety.” In re Est. of Lint, 135 Wn.2d 518, 532, 957 P.2d
755 (1998). “The purpose of [RAP 10.3] is to enable the court and opposing
counsel efficiently and expeditiously to review the accuracy of the factual
statements made in the briefs and efficiently and expeditiously to review the
relevant legal authority.” Litho Color, Inc. v. Pac. Emp’rs Ins. Co., 98 Wn. App.
286, 305-06, 991 P.2d 638 (1999). We need not consider arguments that a party
does not support by references to the record, meaningful analysis, or citation to
pertinent authority. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809,
828 P.2d 549 (1992); see also Holland v. City of Tacoma, 90 Wn. App. 533, 538,
954 P.2d 290 (1998) (“Passing treatment of an issue or lack of reasoned argument
is insufficient to merit judicial consideration.”); West v. Thurston County, 168 Wn.
App. 162, 187, 275 P.3d 1200 (2012) (“[B]ald assertions lacking cited factual and
legal support” will not be addressed on appeal.).
Keimbaye presents 30 assignments of error on appeal challenging
numerous trial court rulings. But, his notice of appeal designated for review only
the September 12, 2023 order that granted Providence’s CR 50(a) motion to
dismiss his remaining claims as a matter of law. RAP 2.4(a) governs the scope of
our review, and it limits our review to the “decision designated in the notice of
appeal.” See also RAP 5.3(a)(3) (notice of appeal “must . . . designate the decision
or part of decision which the party wants reviewed”).
Neither party addresses whether the undesignated orders implicated by
Keimbaye’s assignments of error are reviewable. In general, a ruling not
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designated in the notice of appeal will not be reviewed unless it “prejudicially
affects the decision designated in the notice.” RAP 2.4(b)(1). An order
“prejudicially affects” the decision designated in the notice of appeal where the
designated decision “would not have happened but for” the undesignated order.
Right-Price Recreation, LLC v. Connells Prairie Cmty. Council, 146 Wn.2d 370,
379-80, 46 P.3d 789 (2002). Additionally, RAP 5.3(f) authorizes us to overlook
defects in the form of a notice if it “clearly reflects an intent by a party to seek
review.” Applying these principles, we conclude that the cost bill order is not before
us for review because it arose as a consequence of Keimbaye’s decision to
repeatedly file motions that the trial court deemed frivolous and does not
prejudicially affect the order designated in the notice of appeal. We will consider
Keimbaye’s remaining assignments of error, including those challenging the
summary judgment order and related rulings, to the extent his briefing enables us
to do so.3
II. Self-Represented Appellant
Keimbaye argues that the trial court’s stringent application of procedural
rules without adequate consideration of his status as a self-represented litigant
unfairly impeded his ability to effectively argue his case. He further contends that
the court failed to provide him with substantive guidance and support. We are
3 Providence argues that this court need not consider Keimbaye’s challenge to the
summary judgment order and the cost bill order because this court already considered and rejected the same arguments when it denied discretionary review. But, “the denial of discretionary review of a superior court decision does not affect the right of a party to obtain later review of the trial court decision or the issues pertaining to that decision.” RAP 2.3(c). As the commissioner did not rule on the merits, Keimbaye is entitled to raise the same arguments on appeal.
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mindful of the difficulties of self-representation. However, “‘the law does not
distinguish between one who elects to conduct [their] own legal affairs and one
who seeks assistance of counsel—both are subject to the same procedural and
substantive laws.’” In re Marriage of Olson, 69 Wn. App. 621, 626, 850 P.2d 527
(1993) (quoting In re Marriage of Wherley, 34 Wn. App. 344, 349, 661 P.2d 155
(1983)); see also Westberg v. All-Purpose Structures, Inc., 86 Wn. App. 405, 411,
936 P.2d 1175 (1997) (“Pro se litigants are bound by the same rules of procedure
and substantive laws as attorneys.”). The trial court did not apply these principles
unfairly. To the contrary, the record indicates that the trial court conscientiously
addressed Keimbaye’s questions and concerns without providing improper
assistance. See Edwards v. LeDuc, 157 Wn. App. 455, 460-64, 238 P.3d 1187
(2010) (trial court may exceed limits of impartiality by offering excessive assistance
to a self-represented party).
Relatedly, Keimbaye asserts in assignment of error 20 that the trial court
unfairly failed to control defense counsel’s allegedly unprofessional behavior
towards him. “Trial judges have wide discretion to manage their courtrooms and
conduct trials fairly, expeditiously, and impartially.” In re Marriage of Zigler, 154
Wn. App. 803, 815, 226 P.3d 202 (2010). The record does not support Keimbaye’s
allegations; to the contrary, the trial court properly exercised its discretionary
authority to manage its courtroom.
III. Evidentiary Issues
Keimbaye challenges numerous evidentiary rulings in assignments of error
3, 4, 5, 11, 13, 17, 18, 19, 23, 24, 28, 29, and 30. We review a court’s evidentiary
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rulings for abuse of discretion. Bengtsson v. Sunnyworld Int’l, Inc., 14 Wn. App.
2d 91, 99, 469 P.3d 339 (2020). “A trial court abuses its discretion when its
exercise of discretion is manifestly unreasonable or based upon untenable
grounds or reasons.” Davis v. Globe Mach. Mfg. Co., Inc., 102 Wn.2d 68, 77, 684
P.2d 692 (1984).
Keimbaye generically challenges numerous unspecified evidentiary rulings
on the basis that the rulings were somehow unfair, improper, unclear, unexplained,
or inconsistently applied. However, he often fails to identify the precise ruling he
challenges or articulate a cognizable legal basis for his assertions. Such
arguments are unsupported by sufficient authority, relevant references to the
record, or meaningful analysis to permit review. See Cowiche Canyon, 118 Wn.2d
at 809; Multicare Health Sys. v. Dep’t of Soc. & Health Servs., 173 Wn. App. 289,
299, 294 P.3d 768 (2013) (“We cannot and will not comb through the record on the
possibility that some mistake may lie somewhere within.”).
To the extent that we are able to discern the basis for certain of Keimbaye’s
evidentiary challenges, the claims lack merit. Keimbaye repeatedly argues that
the court excluded evidence, including hearsay, without considering its relevance
to his claims. “All relevant evidence is admissible unless its admissibility is
otherwise limited.” Salas v. Hi-Tech Erectors, 168 Wn.2d 664, 669, 230 P.3d 583
(2010) (emphasis added); ER 402. Notably, hearsay is not admissible except as
provided by the hearsay exception rules. ER 802. “The rules do not give trial
courts discretion to admit inadmissible evidence.” State v. Gonzales-Gonzalez,
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193 Wn. App. 683, 689, 370 P.3d 989 (2016). Keimbaye does not acknowledge
these rules or explain how the court erred in applying them.
Keimbaye argues that the court should have excluded evidence of his prior
lawsuits because it was unfair and prejudicial, but Keimbaye himself opened the
door to this evidence by mentioning it in his opening statement at trial. See
Bengtsson, 14 Wn. App. 2d at 109 (party may open door for admission of otherwise
inadmissible evidence).
Keimbaye also argues that the trial court improperly excluded his affidavit
and Husted’s deposition. He contends that the court’s dismissal of this evidence
without trial to assess credibility contravened the guidelines established in ER 602
(restricting testimony to matters about which witness has personal knowledge) and
ER 701 (governing opinion testimony by lay witnesses). We disagree. CR
32(a)(3)(B) provides that a deposition may be admitted at trial if the court finds that
the witness “resides out of the county and more than 20 miles from the place of
trial, unless it appears that the absence of the witness was procured by the party
offering the deposition.” Here, the trial court declined to admit Husted’s deposition
testimony because it determined that the text messages Keimbaye offered as proof
of her unavailability were inadmissible hearsay. Keimbaye does not provide any
meaningful argument or legal authority in support of the proposition that the court
erred in doing so. Keimbaye also cites CR 56(e) for the proposition that affidavits
and depositions should be considered if they are material to the case, but that rule
addresses admissibility of evidence on summary judgment, not at trial.
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IV. Jury Issues
Keimbaye argues that the trial court committed numerous errors that
prejudicially impacted the jury’s perception of the case, set out in assignments of
error 5, 6, 8, 9, 11, 12, 13, 16, 18, 19, 24, and 29. He contends that the voir dire
process was flawed and inconsistent, the jury instructions were unclear and legally
inaccurate, the court improperly allowed Providence to discuss his history of
litigation, an exhibit should have been admitted earlier, and the improper exclusion
of key evidence limited the jury’s ability to understand his claims. A trial court’s
error is not reversible “unless it affects, or presumptively affects, the outcome of
the trial.” Brown v. Spokane County Fire Prot. Dist. No. 1, 100 Wn.2d 188, 196,
668 P.2d 571 (1983). Here, the trial court entered a directed verdict dismissing
Keimbaye’s remaining claims before the jury deliberated, so the alleged errors
could not possibility have affected the outcome of any verdict.
V. Partial Summary Judgment
Assignments of error 1, 2, 3, 8, and 27 all go to Keimbaye’s contention that
the trial court erred when it granted summary judgment dismissal of his claims for
wrongful discharge and retaliation and dismissal of John as a party. We disagree.
We review an order on summary judgment de novo, performing the same
inquiry as the trial court. Jones v. Allstate Ins. Co., 146 Wn.2d 291, 300, 45 P.3d
1068 (2002). Summary judgment is appropriate if there is no genuine issue as to
any material fact and the moving party is entitled to judgment as a matter of law.
Lybbert v. Grant County, 141 Wn.2d 29, 34, 1 P.3d 1124 (2000); CR 56(c). We
consider all facts and reasonable inferences in the light most favorable to the
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nonmoving party. Young v. Key Pharm., Inc., 112 Wn.2d 216, 226, 770 P.2d 182
(1989).
“In discrimination cases, summary judgment is often inappropriate because
the WLAD ‘mandates liberal construction.’” Frisino v. Seattle Sch. Dist. No. 1, 160
Wn. App. 765, 777, 249 P.3d 1044 (2011) (quoting Martini v. Boeing Co., 137
Wn.2d 357, 364, 971 P.2d 45 (1999)). We will nevertheless affirm summary
judgment of a WLAD claim “when the plaintiff fails to raise a genuine issue of fact
on one or more prima facie elements.” Id.
The WLAD prohibits employers from terminating employment based on
race, color, national origin, sex, and other protected characteristics. RCW
49.60.180(2). “A violation of RCW 49.60.180(2) supports a discriminatory
discharge claim.” Crabtree v. Jefferson County Pub. Hosp. Dist. No. 2, 20 Wn.
App. 2d 493, 507, 500 P.3d 203 (2021). The WLAD also prohibits retaliatory
discharge based on engaging in protected activity. RCW 49.60.210(1). Our
Supreme Court has held that where the employee lacks direct evidence of
intentional discrimination, we apply the burden shifting evidentiary framework
announced in McDonnell Douglas Corp. v. Green4. Mikkelsen v. Pub. Util. Dist.
No. 1 of Kittitas County, 189 Wn.2d 516, 527, 404 P.3d 464 (2017).
To establish a prima facie case of discriminatory discharge, an employee
must show that they were “(1) within a statutorily protected class, (2) discharged
by the defendant, and (3) doing satisfactory work.” Crabtree, 20 Wn. App. 2d at
508. If the employee makes this showing, “the burden shifts to the employer, who
4 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
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must ‘articulate a legitimate, nondiscriminatory reason’ for the discharge.” Id.
(internal quotation marks omitted) (quoting Mikkelsen, 189 Wn.2d at 527). If the
employer carries this burden, the burden shifts back to the employee to produce
sufficient evidence that the proffered explanation for the adverse action is
pretextual. Id. “An employee may satisfy the pretext prong by offering sufficient
evidence to create a genuine issue of material fact either (1) that the defendant’s
reason is pretextual or (2) that although the employer’s stated reason is legitimate,
discrimination nevertheless was a substantial factor motivating the employer.”
Scrivener v. Clark Coll., 181 Wn.2d 439, 446-47, 334 P.3d 541 (2014). “The
employee is not required to show that discrimination was the only motivating factor
for the discharge because an employer’s decision may be based on both legitimate
and illegitimate reasons.” Crabtree, 20 Wn. App. 2d at 508-09.
Similarly, “[t]o establish a prima facie case of retaliation for a protected
activity under [the WLAD], an employee must show that (1) [they] engaged in
statutorily protected activity, (2) an adverse employment action was taken, and (3)
there was a causal link between the employee’s activity and the employer’s
adverse action.” Estevez v. Faculty Club, 129 Wn. App. 774, 797, 120 P.3d 579
(2005). The employer may rebut the presumption by providing a nondiscriminatory
explanation, and the employee may then attempt to prove that the explanation was
pretextual. Id. at 798.
Keimbaye argues that the trial court overlooked and failed to fully consider
key evidence when it dismissed his wrongful discharge and retaliation claims on
summary judgment. But, he does not specify what that evidence is, so it is not
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possible to evaluate his claim. See Cowiche Canyon, 118 Wn.2d at 809. To the
extent Keimbaye argues that evidentiary errors prejudicially impacted the trial
court’s summary judgment ruling, we have considered and rejected those claims.
Keimbaye asserts that the evidence strongly suggests his termination was
retaliatory and Providence’s reasons for terminating him were pretextual. We
disagree. Providence’s investigation established that Keimbaye had 51 instances
of reporting late for work and 74 occurrences of accumulating unapproved
overtime during his six-month probationary period. In light of this evidence, the
fact that Providence terminated him days after his harassment report does not
establish pretext or retaliation. See Milligan v. Thompson, 110 Wn. App. 628, 638-
39, 42 P.3d 418 (2002) (summary judgment appropriate where “nonretaliatory
evidence is strong”).
Keimbaye also argues that the court failed to properly consider evidence of
John’s harassment and failure to act. However, Keimbaye admitted that he could
not recall anything John did towards him that was discriminatory. Additionally, the
record shows that John promptly disciplined Lonon in response to Keimbaye’s
sexual harassment claims. Keimbaye does not otherwise describe or provide
citations to the record in support of this claim.
Keimbaye also asserts that the court’s summary judgment ruling misapplied
the law regarding Kortendick’s liability as a supervisor under the WLAD. But, the
court refused to dismiss Kortendick as a party on summary judgment, so the ruling
was favorable to Keimbaye. Similarly, Keimbaye’s claim that the trial court erred
when it denied his CR 56(f) motion for extension of time to file an opposition to
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Kortendick’s motion for summary judgment is immaterial given that Kortendick’s
motion was denied.
VI. Judgment as a Matter of Law/Directed Verdict
Keimbaye next argues that the trial court erred when it granted Providence’s
CR 50(a) motion and dismissed his hostile work environment claims on directed
verdict. We disagree.
A trial court’s decision on a CR 50 motion to dismiss is reviewed de novo.
Williams v. Dep’t of Soc. & Health Servs., 24 Wn. App. 2d 683, 697, 524 P.3d 658
(2022). “A motion for directed verdict ‘should be granted only when, after viewing
the evidence in the light most favorable to the nonmoving party, there is no
substantial evidence or reasonable inferences therefrom to support a verdict for
the nonmoving party.’” Mancini v. City of Tacoma, 196 Wn.2d 864, 877, 479 P.3d
656 (2021) (quoting H.B.H. v. State, 192 Wn.2d 154, 162, 429 P.3d 484 (2018)).
“Substantial evidence is evidence sufficient to persuade a fair-minded, rational
person that the premise is true.” Jenkins v. Weyerhaeuser Co., 143 Wn. App. 246,
254, 177 P.3d 180 (2008).
The WLAD prohibits employment discrimination on the basis of protected
characteristics, including race, sex, and national origin. RCW 49.60.010, .030(1),
.180(2)(3). To establish a prima facie claim for discrimination in the form of a
hostile work environment, an employee must show that “the harassment (1) was
unwelcome, (2) was because of a protected characteristic, (3) affected the terms
or conditions of employment, and (4) is imputable to the employer.” Blackburn v.
Dep’t of Soc. & Health Servs., 186 Wn.2d 250, 260, 375 P.3d 1076 (2016). “An
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employer will be responsible for harassment by the plaintiff’s supervisors or
coworkers if the employer ‘(a) authorized, knew, or should have known of the
harassment and (b) failed to take reasonably prompt and adequate corrective
action.’” LaRose v. King County, 8 Wn. App. 2d 90, 105, 437 P.3d 701 (2019)
(quoting Glasgow v. Ga.-Pac. Corp., 103 Wn.2d 401, 407, 693 P.2d 708 (1985)).
Here, the trial court granted Providence’s motion for directed verdict
because it concluded that Keimbaye failed to present substantial evidence or
create a reasonable inference that Kortendick was a supervisor who could be held
personally liable under the WLAD for the alleged harassment or that Providence
authorized, knew, or should have known of the harassment and failed to take
prompt and adequate corrective action. We conclude that the trial court did not err
in doing so.
The WLAD defines “employer” to include “any person acting in the interest
of an employer, directly or indirectly, who employs eight or more persons.” RCW
49.60.040(11). It is well established that supervisors may be held personally liable
for their discriminatory acts when acting in their employer’s interest. Brown v. Scott
Paper Worldwide Co., 143 Wn.2d 349, 358, 20 P.3d 921 (2001). In contrast,
coworkers who are not acting in a supervisory capacity cannot be held personally
liable under the WLAD. Jenkins v. Palmer, 116 Wn. App. 671, 674-75, 66 P.3d
1119 (2003) (dismissing coworker from lawsuit under WLAD where “actions she
allege[d] . . . did not affect her compensation or other similar terms or conditions
of her employment”).
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The WLAD does not provide a definition for the term “supervisor,” but
“[f]ederal law is instructive with regard to our state discrimination laws.” Dedman
v. Wash. Personnel Appeals Bd., 98 Wn. App. 471, 478 n.8, 989 P.2d 1214 (1999).
The National Labor Relations Act (NLRA), 29 U.S.C. § 152(11) defines
“‘supervisor’” as “any individual having authority, in the interest of the employer, to
hire, transfer, suspend, lay off, recall, promote, discharge, assign, reward, or
discipline other employees, or responsibly to direct them, or to adjust their
grievances, or effectively to recommend such action, if in connection with the
foregoing the exercise of such authority is not of a merely routine or clerical nature,
but requires the use of independent judgment.” Keimbaye offered no evidence
that Kortendick did any of those things.
Keimbaye refers to Kortendick as a “lead” and argues that the trial court
overlooked evidence that Kortendick performed supervisory roles by assigning
tasks, overseeing daily activities, and influencing employment conditions. The
term “lead” is derived from the collective bargaining agreement that covers
anesthesia technicians at Providence. John testified that four anesthesia
technicians, including Kortendick, rotated as “leads” and are in the same collective
bargaining unit. John testified that “leads” have no power to hire, fire, discipline,
transfer, give raises, approve training, absences, late arrivals, or overtime, or set
the work schedule. John also testified that he could not be part of the same
collective bargaining unit as the other anesthesia technicians because he was a
member of the leadership team. See 29 U.S.C. § 152(3) (excluding “any individual
employed as a supervisor” from definition of “employee” under NLRA). Thus, if
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Kortendick were a supervisor, he could not have been a member of the
technicians’ collective bargaining unit. Viewing the evidence in the light most
favorable to Keimbaye, substantial evidence does not support a finding that
Kortendick was a supervisor who could be held personally liable under the WLAD.
As to Providence’s liability, Keimbaye points to no evidence that Providence
knew of Keimbaye’s allegations of sexual or race/national origin harassment while
he was still working for Providence. Keimbaye reported the alleged sexual
harassment after he was placed on administrative leave, and the record
demonstrates that Providence took prompt action. As to Keimbaye’s claims of
race/national origin harassment, there is no evidence that he filed a report on that
basis while working at Providence, so his former employer had no opportunity to
investigate or take action.
Keimbaye also argues that the court’s handling of the directed verdict
motion was confusing and procedurally unclear, but he does not explain why or
provide any reasoned legal argument in support of this claim. As previously
discussed, Keimbaye’s assertions regarding the alleged impact of evidentiary error
on the court’s ruling lack merit.
Because Keimbaye fails to establish reversible error, we affirm.
WE CONCUR:
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