Filed Washington State Court of Appeals Division Two
May 5, 2026
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION II JOHN BOESPFLUG, No. 59575-3-II
Respondent,
v.
STATE OF WASHINGTON, DEPARTMENT UNPUBLISHED OPINION OF LABOR AND INDUSTRIES,
Appellant.
LEE, J. — The Washington State Department of Labor and Industries (DLI) appeals the
trial court’s order denying its motion for summary judgment. DLI contends that the trial court’s
denial was based on an improper expansion of the issue on remand from a prior appeal. DLI also
appeals the trial court’s denial of its CR 50 motion for judgment as a matter of law.
The trial court’s denial of DLI’s motion for summary judgment was based on a proper
construction of the issue on remand from the prior appeal and on a finding that material facts were
in dispute, which were subsequently decided by a trier of fact. Further, the trial court properly
denied DLI’s CR 50 motion. Accordingly, we affirm.
FACTS
A. BACKGROUND
In 2017, John Boespflug filed suit against DLI for several alleged instances of
whistleblower retaliation. The trial court granted summary judgment in favor of DLI, and
Boespflug appealed the trial court’s order dismissing his claims. Boespflug v. Dep’t of Lab. & No. 59575-3-II
Indus., No. 83301-4-I, slip op. at 7 (Wash. Ct. App. Feb. 28, 2022) (unpublished),1 (Boespflug I).
Division I of this court affirmed summary judgment but remanded one claim to the trial court: “the
alleged act of retaliation involving the lack of an ergonomic evaluation for the selection of a
replacement vehicle, which presents genuine issues of material fact.” Id. at 27.
In 1987, Boespflug began working as an electrical inspector and compliance officer for
DLI. Boespflug ensured that electrical installations met the minimum safety requirements, and he
verified that those completing electrical work obtained the proper licensure and certifications.
While working under his supervisor, Jeffrey Ault, Boespflug submitted several whistleblower
complaints. Around the time he submitted these complaints, Boespflug received an
“‘unsatisfactory’” performance evaluation, Ault sent Boespflug emails that Boespflug considered
unwarranted or unsubstantiated reprimands, DLI assigned Boespflug to a different inspection area,
and DLI replaced his work vehicle without providing him an ergonomic evaluation. Id. at 17, 20,
22, 24 (quoting record).
On October 17, 2017, Boespflug filed suit against DLI claiming several instances of
retaliation for his whistleblower complaints under chapters 42.40 and 49.60 RCW. In relevant
part, Boespflug alleged that DLI retaliated against him by assigning him a newer vehicle without
conducting an ergonomic evaluation and argued that such conduct was inconsistent compared to
other employees. Id. at 24.
In 2020, the trial court granted summary judgment in favor of DLI despite declarations
from employees Robert Matson and Michael Hurlbut who received ergonomic evaluations before
1 https://www.courts.wa.gov/opinions/pdf/833014.pdf
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receiving new vehicles. Id. at 7, 24. Boespflug appealed the trial court’s summary judgment order
dismissing his claims. Id. at 8.
On appeal, Division I of this court affirmed summary judgment in favor of DLI except as
to “the alleged act of retaliation involving the lack of an ergonomic evaluation for the selection of
a replacement vehicle, which presents genuine issues of material fact.” Id. at 27. The court
explained:
There are questions of fact whether the failure by [DLI] to provide him an ergonomic evaluation before assigning him a newer vehicle was a reprisal or retaliatory action, whether his whistleblower status caused his vehicle reassignment without an ergonomic evaluation, whether [DLI]’s failure to conduct an ergonomic evaluation was “justified,” and whether improper motive was not a substantial factor.
Id. at 2.
The court concluded that “viewing the evidence in the light most favorable to Boespflug,
there are genuine issues of material fact whether [DLI]’s failure to conduct an ergonomic
evaluation was inconsistent compared to the treatment of other employees and was therefore a
reprisal or retaliatory action.” Id. at 24. The court specifically highlighted the declarations from
DLI employees, determining that “[v]iewed in a light most favorable to Boespflug, especially the
testimony of Matson regarding a standard practice, the evidence establishes genuine issues of
material fact whether retaliation was a substantial factor in [DLI]’s decision to issue Boespflug a
newer vehicle without first conducting an ergonomic evaluation.” Id. at 24-25. And the court
further determined that “[u]nder the rebuttable presumption of RCW 42.40.050(2), questions of
fact remain whether [DLI] can rebut the presumption of retaliation by demonstrating justified
reasons unrelated to Boespflug’s whistleblower status.” Id. at 25. Accordingly, the court reversed
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summary judgment as to the “alleged act of retaliation involving the lack of an ergonomic
evaluation for the selection of a replacement vehicle.” Id. at 27.
B. MOTION FOR SUMMARY JUDGMENT ON REMAND
On remand, DLI again filed a motion for summary judgment with a new declaration from
Angela Ericksen, who was the regional health and safety coordinator. In her declaration, Ericksen
stated that prior to April 2017, DLI “only offered employees ergonomic assessments for work
vehicles upon request.” Clerk’s Papers (CP) at 53. She further stated that “[a]n employee either
had to explicitly request an assessment via email or otherwise make [DLI] aware of the need for
one.” CP at 53.
The trial court heard arguments on DLI’s motion for summary judgment in January 2024.
DLI contended that summary judgment was proper because the failure to provide an ergonomic
assessment was due to DLI’s policy of only offering assessments upon request. DLI argued that
the sole issue on remand was “whether Mr. Boespflug should have received an ergonomic
assessment as a matter of course.” Verbatim Rep. of Proc. (VRP) (Jan. 11, 2024) at 8.
Before making its ruling, the trial court discussed the remaining issue on remand:
[DLI] asks the court to dismiss the sole remaining claim in this case, because they assert that there is no issue of material fact as to whether [DLI]’s policy requires a request from an employee before an ergonomic assessment is done and that the plaintiff did not make a request.
This court, in reviewing the Court of Appeals decision as well as the record in this case, believes that the question is not as narrow as defined by [DLI], and that actually is reflected in the language of the Court of Appeals. When they indicate questions of fact, they include whether the defendant’s failure to conduct an ergonomic evaluation was justified and whether improper motive was not a substantial factor.
VRP (Jan. 11, 2024) at 29-30. Accordingly, the trial court ruled as follows:
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The court concludes that there remain issues of material fact that preclude summary judgment dismissal of the remaining claim. Those issues include the standard practice and some of the statements the Court of Appeals opinion contains, whether the failure to conduct an ergonomic evaluation was justified, whether improper motive was not a substantial factor. There remain issues of fact as to those issues, and so the court is denying the motion for summary judgment at this time.
VRP (Jan. 11, 2024) at 31.
C. PRETRIAL HEARING
In March 2024, during a pretrial hearing, the trial court reviewed the parties’ briefing on
the issue for trial and proposed that the issue be framed as “whether the plaintiff was retaliated
against based upon a whistleblower complaint in the process of assigning a new vehicle.” VRP
(Mar. 22, 2024) at 7. DLI expressed concern that this phrasing would expand the issue to include
other issues regarding reassignment of the vehicle beyond the issue on remand. In response,
Boespflug argued that DLI was seeking to narrow the issue to limit the evidence presented.
After hearing the parties’ arguments, the trial court framed the issue as “whether the
plaintiff was retaliated against based upon his whistleblower complaint in the process of assigning
the plaintiff a new vehicle.”2 VRP (Mar. 22, 2024) at 13. The case then proceeded to a jury trial.
2 DLI relies on this language in this current appeal.
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D. TRIAL
1. Whistleblower Complaints
Boespflug testified about three instances that led to his whistleblower complaints while
working under Ault. First, Boespflug explained that in 2015, he was driving to Bonney Lake for
an inspection when he saw an electrical van parked down the road. Because his job required that
he check for proper licensure and certifications, Boespflug approached the van and discovered
Kraft Electric’s electricians were working without a permit. Boespflug subsequently issued four
citations—two to Kraft Electric and two to the administrator who oversaw the electrical work.
Boespflug expected that Ault would approve the citations; however, Ault canceled the
citations. Boespflug knew that Ault previously worked with an owner of Kraft Electric, so
Boespflug filed a whistleblower complaint after Ault “basically just ignored [the citations]. In
fact, he didn’t ignore them. . . . [H]e voided the citations.” VRP (Apr. 4, 2024) at 366. Boespflug
sent this whistleblower complaint to an assistant attorney general.
Boespflug also submitted a whistleblower complaint involving a mobile home service
change for ERS Group. One day, when Boespflug was not working, another inspector, Michael
Friend, conducted an inspection and wrote one correction at the site. When Boespflug returned to
work, he noted two additional corrections for the site: the service was not bonded, which presented
an electrocution hazard, and the service lacked additional breakers. The owner of the ERS Group
“complained very loudly,” so “they took [the corrections] out of [Boespflug’s] hands.” VRP (Apr.
4, 2024) at 377.
In September 2016, Boespflug filed a whistleblower complaint relating to ERS Group with
a department liaison for the state auditor. Boespflug alleged that “there was a serious and
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dangerous situation . . . and [Boespflug] just wasn’t getting much action” to correct the dangerous
installation. VRP (Apr. 4, 2024) at 379. Boespflug alleged that Hurlbut, a lead electrical inspector,
told Friend “to make this inspection go away” and that “Ault . . . and Hurlbut[] had decided to
placate [the owner of ERS Group] by having his dangerous electrical installation approved.” VRP
(Apr. 8, 2024) at 421.
Boespflug submitted a third whistleblower complaint involving a sewage lift station.
Boespflug had written corrections because the installation lacked a rigid steel conduit and a seal
off, which was “a serious violation of the code.” VRP (Apr. 4, 2024) at 382. Ault “was very
unhappy” that Boespflug had written corrections because the chief electrical inspector “had looked
over these electrical plans and approved them.” VRP (Apr. 4, 2024) at 383. Boespflug explained
that this was a violation of state law because “[a]s inspectors, . . . you’re not allowed to aid, to look
at, to take a look at their diagrams and tell them . . . whether or not these are going to meet code. .
. . That’s a horrible conflict of interest.” VRP (Apr. 4, 2024) at 383. Accordingly, Boespflug
contacted the state auditor with this complaint in December 2016.
Ault learned of Boespflug’s whistleblower complaints when the complaints were
investigated.
2. Vehicle Reassignment
Vivian Montes, DLI’s local vehicle coordinator, testified that she would initiate paperwork
for a new vehicle upon receiving an email from the Department of Enterprise Services that a
vehicle has met its mileage limit. Montes did not receive an email from Enterprise Services
informing her that Boespflug’s vehicle reached the mileage limit. Instead, Ault informed Montes
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that Boespflug needed a new vehicle because it needed new snow tires, so Montes initiated the
paperwork to order a new vehicle.
On January 11, 2017, Ault emailed Boespflug, instructing him to return his vehicle in
exchange for a newer vehicle with newer tires. Boespflug explained that this type of vehicle
“swap” had “[n]ever happened before.” VRP (Apr. 4, 2024) at 371. However, Boespflug
explained that “[b]ecause of the situation [he] had with Mr. Ault at the time, [he] felt complaining
would do [him] more harm than any good.” VRP (Apr. 4, 2024) at 371.
The newer vehicle was “much smaller” than Boespflug’s previous vehicle. VRP (Apr. 8,
2024) at 412. Boespflug explained that electrical inspectors typically work from a stand in the
passenger’s seat, but it was more difficult to do so because the vehicle was smaller. Compared to
the newer vehicle, Boespflug’s previous vehicle was full-sized and sat higher off the ground, so
“[i]t was much easier [to get] in and out of.” VRP (Apr. 8, 2024) at 414. Boespflug also explained
that it was much easier to work in the front seat of his previous vehicle. Despite finding the newer
vehicle uncomfortable, Boespflug did not request an ergonomic evaluation nor inform the safety
coordinator or Ault that he was uncomfortable in the newer vehicle.
Hurlbut previously drove Boespflug’s new vehicle, but the model of the vehicle
exacerbated his sciatica and back pain. After complaining to Ault, Hurlbut received an ergonomic
evaluation and was issued a new vehicle.
Regarding the process for receiving an ergonomic evaluation, Boespflug presented
testimony from Matson, who was a lead electrical inspector and compliance officer until 2017.
Matson testified that, based on his understanding of DLI’s general practice, ergonomic evaluations
are part of the process of getting a new vehicle. Matson explained that the State would periodically
8 No. 59575-3-II
provide ergonomic evaluations to ensure inspectors fit in their vehicles. Matson also discussed
instances when he received ergonomic evaluations before Motor Pool issued him a new vehicle.
In response, DLI presented testimony from Ericksen that in 2017, inspectors did not automatically
receive ergonomic evaluations, but they were available upon request.
E. CR 50 MOTION AND VERDICT
On April 8, 2024, DLI filed a motion for judgment as a matter of law under CR 50(a). DLI
argued that Boespflug did not present evidence of a causal link, he did not show that he was treated
differently, and DLI’s failure to provide an ergonomic assessment was justified by its policy.
After hearing arguments on the CR 50(a) motion, the trial court noted that the evidence
was contested and reminded the parties that it was “looking at whether in plaintiff’s case they have
presented evidence that addresses their burden of proof as to the elements.” VRP (Apr. 8, 2024)
at 562. The trial court denied DLI’s CR 50(a) motion.
At the conclusion of trial, the jury returned a verdict for Boespflug and awarded him
$262,000 in damages. The parties subsequently stipulated attorney fees and costs.
DLI appeals.
ANALYSIS
DLI contends that the trial court erred by denying its motion for summary judgment
because the trial court’s denial was based on an impermissible expansion of the issue on remand
from the court of appeals. DLI also argues that the trial court erred by denying its CR 50 motion
for judgment as a matter of law. We disagree.
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A. DENIAL OF SUMMARY JUDGMENT
We review summary judgment rulings de novo. Strauss v. Premera Blue Cross, 194 Wn.2d
296, 300, 449 P.3d 640 (2019). But we only review trial court decisions as a matter of right under
RAP 2.2. And “we do not review a trial court’s denial of a summary judgment after a jury trial
under RAP 2.2.” Leitner v. City of Tacoma, 15 Wn. App. 2d 1, 18-19, 476 P.3d 618 (2020) (“‘[A]n
order denying summary judgment, based upon the presence of material, disputed facts, will not be
reviewed when raised after a trial on the merits.’” (quoting Johnson v. Rothstein, 52 Wn. App.
303, 306, 759 P.2d 471 (1988))), review denied, 196 Wn.2d 1045 (2021). However, we may
review the denial of summary judgment if the decision “turned solely on a substantive issue of
law.” Id. at 19.
DLI argues that the trial court erred by denying its motion for summary judgment because
the trial court “impermissibly expanded the issue to include any action taken by [DLI] ‘in the
process of assigning a new vehicle,’” which is a substantive issue of law. Br. of Appellant at 17
(quoting CP at 431, 437). DLI’s quoted language comes from the trial court’s ruling during a
pretrial hearing, not the summary judgment hearing.
The record does not support DLI’s argument that the trial court’s summary judgment ruling
was based on an erroneous construction of the issue remanded by the court of appeals. As stated
above, DLI’s argument relies on language from a pretrial hearing, not the summary judgment
hearing. Thus, DLI’s argument that the trial court erroneously expanded the issue in its summary
judgment ruling is unpersuasive.
Furthermore, Division I affirmed summary judgment in favor of DLI “except only the
alleged act of retaliation involving the lack of an ergonomic evaluation for the selection of a
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replacement vehicle, which presents genuine issues of material fact.” Boespflug I, No. 83301-4-I,
at 27. In reaching its decision that disputed facts preclude summary judgment, the trial court
specifically identified that questions of material fact exist in the sole issue remanded by Boespflug
I, such as whether the conduct was justified and whether improper motive was a substantial factor.
Accordingly, the trial court’s construction of the issue during the summary judgment hearing was
consistent with Boespflug I.
Also, the trial court’s denial of summary judgment was based on a determination that
material facts were in dispute based on the holding in Boespflug I. The trial court ruled on
summary judgment that
there remain issues of material fact that preclude summary judgment dismissal of the remaining claim. Those issues include the standard practice and some of the statements the Court of Appeals opinion contains, whether the failure to conduct an ergonomic evaluation was justified, whether improper motive was not a substantial factor. There remain issues of fact as to those issues, and so the court is denying the motion for summary judgment at this time.
VRP (Jan. 11, 2024) at 31. Accordingly, the trial court explicitly stated that its denial of summary
judgment was based on a finding that material facts were in dispute. Because the denial was based
on a finding of disputed material facts and did not turn on a substantive issue of law, we decline
to review the denial of summary judgment.
B. DENIAL OF CR 50 MOTION
DLI next argues that the trial court erred in denying DLI’s CR 50 motion for judgment as
a matter of law because Boespflug “failed to prove that he was treated differently than others, that
his whistleblower activities were the cause of his failure to receive an ergonomic evaluation, or
11 No. 59575-3-II
that [DLI]’s failure to provide one without request was improper or pretextual.” Br. of Appellant
at 30. DLI does not dispute that Boespflug was a whistleblower under the statute.
We review de novo a trial court’s denial of a motion for judgment as a matter of law. Mears
v. Bethel Sch. Dist. No. 403, 182 Wn. App. 919, 926, 332 P.3d 1077 (2014), review denied, 182
Wn.2d 1021 (2015). A CR 50 motion “‘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 said to exist if it is sufficient to persuade a fair-minded,
rational person of the truth of the declared premise.’” Id. (internal quotation marks omitted)
(quoting Delgado Guijosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 915, 32 P.3d 250 (2001)).
Here, Boespflug presented substantial evidence that his vehicle reassignment without an
ergonomic evaluation was retaliatory. After Boespflug submitted whistleblower complaints, Ault
informed Boespflug that he would receive a newer vehicle. Ault was aware of the whistleblower
complaints, and he initiated the conversation with Montes that led to the decision to replace
Boespflug’s vehicle. Boespflug did not receive an ergonomic evaluation before he was issued the
newer vehicle. However, Matson testified that based on his understanding of DLI’s general
practice, ergonomic evaluations are part of the process of getting a new vehicle. 3 And, although
Hurlbut testified that he received an ergonomic evaluation after he had complained about
3 Although DLI noted that Matson was a whistleblower as of 2016 such that he could not be considered a comparator under RCW 42.40.050(1)(b)(xv), Matson testified as to the general practice, not solely about his personal experience with ergonomic evaluations nor his treatment after his whistleblower activities in 2016.
12 No. 59575-3-II
discomfort in his vehicle, Hurlbut also explained that he received an ergonomic evaluation before
Motor Pool issued him a different vehicle. Accordingly, a fair-minded rational person could find
that Boespflug was treated differently than other employees. And Ault’s knowledge of the
whistleblower complaints and his involvement in contacting Montes to replace Boespflug’s
vehicle is sufficient to persuade a rational person that Boespflug’s whistleblower activities caused
the failure to provide an ergonomic evaluation.
Further, viewing the evidence in the light most favorable to Boespflug, a fair-minded
rational person could find that DLI’s reason for failing to provide an ergonomic evaluation was
pretextual. Despite DLI’s contention that under the policy, ergonomic evaluations were only
available upon request, Matson testified that DLI’s general practice was to provide ergonomic
evaluations when assigning a new vehicle. Accordingly, viewing all facts and reasonable
inferences in the light most favorable to Boespflug, he presented substantial evidence of retaliation
when DLI reassigned his vehicle without conducting an ergonomic evaluation.
Although DLI argues that the failure to provide Boespflug with an ergonomic evaluation
was based on DLI’s policy of only providing ergonomic evaluations upon request, this argument
relies on viewing the evidence in the light most favorable to DLI. When reviewing the denial of a
CR 50 motion, we construe all facts and inferences in favor of the nonmoving party. Here,
Boespflug presented substantial evidence to support a verdict for him. Accordingly, the trial court
properly denied DLI’s CR 50 motion.
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C. ATTORNEY FEES ON APPEAL
Boespflug requests attorney fees on appeal.
Under RAP 18.1(a), the prevailing party may recover reasonable attorney fees if applicable
law grants the party the right to recover attorney fees. Under RCW 49.60.030(2), “[a]ny person .
. . injured by any act in violation of this chapter shall have a civil action . . . to recover the actual
damages sustained by the person, . . . together with the cost of suit including reasonable attorneys’
fees.” “If attorney fees are allowable at trial, the prevailing party may recover fees on appeal.”
Aiken v. Aiken, 187 Wn.2d 491, 506, 387 P.3d 680 (2017).
Here, the trial court entered a stipulated judgment on attorney fees under RCW 49.60.030
in favor of Boespflug. Because Boespflug was entitled to attorney fees at the conclusion of trial
and he is the prevailing party in this appeal, he is entitled to attorney fees on appeal. Therefore,
we grant Boespflug’s request for attorney fees on appeal.
CONCLUSION
Because the trial court denied DLI’s motion for summary judgment based on a finding that
there were genuine issues of material fact related to the issue on remand, the denial of summary
judgment did not turn solely on a substantive issue of law, and the issue on remand was determined
by a trier of fact, the trial court’s ruling on summary judgment is not reviewable. Also, the trial
court properly denied DLI’s CR 50 motion because Boespflug presented substantial evidence that
he was retaliated against when DLI failed to conduct an ergonomic evaluation prior to assigning
him his new vehicle. Accordingly, we affirm.
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A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports but will be filed for public record in accordance with RCW 2.06.040,
it is so ordered.
Lee, J. We concur:
Maxa, P.J.
Glasgow, J.