IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
VICTOR TERENCE WASHINGTON, No. 73847-0-1 fri Appellant, DIVISION ONE CO C2) V.
GROUP HEALTH COOPERATIVE, UNPUBLISHED
Respondent. FILED: May 30, 2017
Cox, J. — Victor Washington appeals the judgment on a jury verdict for
Group Health Cooperative concerning his claims of disability discrimination and
failure to accommodate. The trial court did not abuse its discretion in denying his
motion for a new trial. Washington failed to preserve for review his challenges to
allegedly prejudicial comments by Group Health's counsel during opening
statement, cross-examination, and closing. Accordingly, we do not further
address those challenges. We affirm.
In April 2012, Victor Washington began working for Group Health
Cooperative as a probationary employee. Washington's supervisor, Jim Sims,
learned that Washington had changed his assigned work schedule when he
noticed Washington leave early. Sims later spoke with Washington and No. 73847-0-1/2
approved this change. There was conflicting evidence whether Washington
explained to Sims that he needed the schedule adjustment due to his disabilities.
On August 8, 2012, Sims instructed Washington to return to his original
work schedule. Washington responded that he had numerous upcoming doctor
appointments and that he had heart issues. They did not agree on the schedule
that would apply.
Sims and Washington resumed their discussion the next morning.
Washington claims to have explained his medical conditions and the effect they
had on him. There was evidence at trial that this conversation was "contentious."
Sims "rescinded" Washington's changed work schedule. Later that morning,
Washington e-mailed Sims and Sims's manager notifying them of his medical
condition. Sims did not recall whether he read Washington's e-mail.
Later that day, Sims discussed Washington's potential termination with a
Group Health human resources consultant. The next day, Sims terminated
Washington's employment.
Washington commenced this suit against Group Health, alleging violations
of Washington's Law against Discrimination (WLAD). A jury returned a verdict
for Group Health on the only two claims that went to trial: failure to accommodate
and disability discrimination. Washington then moved pro se for a new trial or
reconsideration. He argued that the jury verdict was contrary to the evidence.
He also argued that Group Health's counsel committed certain prejudicial
misconduct during Washington's and a physician's cross-examination. The trial
court denied Washington's motion and entered its judgment on the jury verdict
2 No. 73847-0-1/3
Washington appeals.
NEW TRIAL MOTION
Washington argues that the trial court abused its discretion by denying his
motion for a new trial. We disagree.
"A strong policy favors'the finality of judgments on the merits."' Under CR
59(a)(7), trial courts may order a new trial after a jury has returned its verdict
where "there is no evidence or reasonable inference from the evidence to justify
the verdict." If the appellant unsuccessfully moved for a new trial under this rule
and argued that the verdict was contrary to the evidence, we determine whether
sufficient evidence supports the verdict.2
Evidence is sufficient to support the verdict where it is substantia1.3
Substantial evidence is the "quantum of evidence sufficient to persuade a
rational fair-minded person the premise is true.'"4 We must view the evidence
1 Harrell v. Dep't of Soc. and Health Servs., 170 Wn. App. 386, 408, 285 P.3d 159 (2012).
Mears v. Bethel Sch. Dist. No. 403, 182 Wn. App. 919, 927, 332 P.3d 2 1077(2014), review denied, 182 Wn.2d 1021 (2015).
3 See id.
"McCleary v. State, 173 Wn.2d 477, 514, 269 P.3d 227(2012)(quoting Sunnyside Valley Irrigation Dist. v. Dickie, 149 Wn.2d 873, 879, 73 P.3d 369 (2003)).
3 No. 73847-0-1/4
favor of the nonmoving party.5 Additionally, the jury makes credibility
determinations, which we do not review.6
We review for abuse of discretion the trial court's denial of a motion for a
new trial under CR 59(a)(7).7
Disability discrimination is at issue in this case. Under RCW 49.60.180, a
disabled employee has a cause of action for certain types of discrimination. The
employee may allege that the employer discriminated against him because of his
disability.8 The employee may also allege that the employer failed to
accommodate his disability.9 These were the only two claims that went to trial
against Group Health.
Disability Discrimination
Washington argues that the jury's verdict on his disability discrimination
claim is contrary to the evidence. We disagree.
Under WLAD,an employer cannot "discriminate against any person in
compensation or in other terms or conditions of employment because of. . . the
presence of any sensory, mental, or physical disability.',io
5 Mears, 182 Wn. App. at 927.
v. Hart, 195 Wn. App. 449, 457, 381 P.3d 142(2016), review 6 State denied, 187 Wn.2d 1011 (2017).
7 Millies v. LandAmerica Transnation, 185 Wn.2d 302, 316, 372 P.3d 111 (2016).
8 Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 145, 94 P.3d 930(2004).
9 Id.
19 RCW 49.60.180(3); Riehl, 152 Wn.2d at 144-45. 4 No. 73847-0-1/5
Here, the trial court instructed the jury on the elements of a disability
discrimination claim. According to those unchallenged instructions, Washington
had the burden to prove the following factors:
1. That he has a disability; 2. That he is able to perform the essential functions of the job in question; and 3. That his disability was a substantial factor in Group Health Cooperative's decision to terminate him. Victor Washington does not have to prove that his disability was the only factor or the main factor in the decision. Nor does Victor Washington have to prove that he would have been retained but for his disability.(11]
The second element is not disputed on appeal.
Disability
Washington argues that he is disabled. The record shows evidence of a
disability.
RCW 49.60.040(7)(a) defines a disability as "the presence of a sensory,
mental, or physical impairment that: (i) Is medically cognizable or diagnosable; or
(ii) Exists as a record or history; or (iii) Is perceived to exist whether or not it
exists in fact." Under the statute, "impairment[s]" include cardiovascular,
respiratory, and psychological disorders.12
Here, the trial court gave the jury a disability instruction consistent with the
statute. Dr. Ganesh Raghu, a physician who treated Washington, testified at trial
as a defense witness. He testified, as an expert, that he had clinically diagnosed
Washington with sarcoidosis. He also testified that he did not confirm this
diagnosis. And a later biopsy failed to show objective evidence of this condition.
11 Clerk's Papers at 644.
12 RCW 49.60.040(7)(c)(i-ii). 5 No. 73847-0-1/6
We also note that Washington's medical records showed evidence of
other medical conditions that could be classified as disabilities by the finder of
fact.
We conclude there was, on this record, substantial evidence that
Washington had a disability of sarcoidosis. This came in from Dr. Raghu, his
treating physician and a defense witness at trial. Accordingly, Washington
satisfied the first element of his disability discrimination claim.
Group Health argues that there was no evidence that Washington was
disabled. The record, particularly the evidence provided at trial by its own expert
witness, belies that argument. To the contrary, a jury could reasonably find, on
this record, that Washington had a disability.
Discrimination and Rebuttal
Washington argues that he satisfied his next burden: to show that his
termination was discriminatory. We conclude that he failed in this burden.
The employee bears the initial burden of making a prima facie case of
unlawful discrimination.13 Specifically, Washington had the burden to show that
his disability was a substantial factor motivating Group Health's decision to
terminate his employment.14 Then the burden shifts to the employer to present
"evidence that the employment action was based on legitimate,
nondiscriminatory reasons to rebut the presumption of discrimination."15 The
13 See Riehl 152 Wn.2d at 150.
14 Clerk's Papers at 644; see also Riehl, 152 Wn.2d at 149.
15 See Riehl, 152 Wn.2d at 150. 6 No. 73847-0-1/7
employer's burden is one of production only.16 If the employer satisfies its
burden, the employee must show that the employer's reasons are pretext for
discriminatory intent.17
At trial, Washington testified that he typically worked from 7:36 a.m. to
3:30 p.m. and asked Sims for an adjusted work schedule due to his medical
conditions. Washington claims to have informed Sims of his difficulty staying
asleep and his medical conditions.
Sims testified that Washington worked from 6:30 a.m. to 2:30 p.m. Sims
became aware that Washington had unilaterally changed his schedule when he
noticed Washington leave at 1:00 p.m. Sims asked Washington about this, and
Washington explained that it was more convenient for him. Sims responded that
it was "okay" and that they would "give it a try and see if this works." Sims
testified that Washington did not identify any medical conditions or explain that
he needed an adjusted schedule due to his disabilities.
On August 8, 2012, Sims instructed Washington to return to his original '
work schedule and leave at 2:30 p.m. Washington refused, responding that it
was "unfair." When Sims asked for an explanation, Washington responded that
he had numerous doctor appointments in the future and that he had heart issues.
They could not agree on the schedule.
16 Id.
17 Id. No. 73847-0-1/8
Sims and Washington resumed their discussion the next morning. Sims
did not recall at trial whether Washington used the word "accommodation." But
he did mention a heart related medical appointment.
Washington testified that he explained his upcoming medical
appointments, his heart condition, and the effect his medical conditions had on
him.
Sims explained that he needed Washington "to be available" for meetings.
The conversation was allegedly "contentious." But Sims "rescinded"
Washington's changed work schedule.
Later that morning, Washington e-mailed Sims and Adam Burton, Sims'
manager, notifying them of a medical condition and appointment. Sims did not
recall whether he read Washington's e-mail.
Sims later discussed Washington's termination with a Group Health
human resources consultant. The next day, August 10, 2012, Sims gave
Washington formal notice of his employment termination. The notice stated the
following:
• Argumentative nature in accepting your job title and role: You were hired as a network engineer. Shortly after your start you , began complaining about why you were not a "senior" engineer. This discussion took three days to resolve. • Reluctance to conform to Group Health's change management processes: You didn't want to open change tickets which document any systems changes. As you know, this is standard business practice for our work. It took three days of discussion to convince you to accept this standard work practice. • Reluctance to work with peers to complete a formal review process: Doesn't want to participate in the regular review process that involves major system's changes. • Argumentative nature in working with leadership to accept the standard working hours: You refuse to work the schedule you ,
8 No. 73847-0-1/9
were hired to work. Shortly after starting your role, you changed your schedule and when asked by management to move back to your original schedule, you have refused[.]
Based on your continued poor work behavior during your probationary period, your employment with Group Health is hereby terminated effective the date identified in the first paragraph of this memo.[181
The jury heard Sims's testimony explaining his reasons for terminating
Washington's employment. Sims testified that he started to recognize "a pattern"
and that Washington was "argumentative and... wasn't going. .. to try to
actually compromise. . . ." Sims further testified that he did not terminate
Washington's employment due to his disability.
Other employees also testified about their interaction with, and
impression, of Washington. For example, Burton expressed his concern to Sims
about Washington's absence from meetings and Burton's dissatisfaction with
Washington's work hours. Burton felt that Washington was not "pulling his share
of the work" and was argumentative.
The jury found in its special verdict form that Washington did not meet his
burden of proving his disability discrimination claim. This record supports that
factual determination.
The termination memorandum and Sims's testimony at trial provided
substantial evidence to demonstrate Group Health's legitimate and
nondiscriminatory reasons to rebut the presumption of discrimination.
18 Report of Proceedings Vol. 2(June 4, 2015) at 371-72; Trial Exhibit 10.
9 No. 73847-0-1/10
Washington argues that Sims treated him differently than other employees
by "expecting him to have a standard schedule" while other employees did not.
But Washington's schedule is irrelevant because it was not at issue in this case.
The issue was whether Washington's disability was a substantial factor in Group
Health's decision to terminate his employment, not readjust his schedule. ,
Pretext
Washington argues that he satisfied his burden of showing that Group
Health's stated reasons were pretextual. We disagree.
An employee cannot establish that his employer's reasons are pretextual
without evidence that the employer's articulated reason for its decision is
"'unworthy of belief.'"19 An employee may establish pretext if his employer's
reasons "(1) had no basis in fact,(2) were not really motivating factors for its
decision,(3) were not temporally connected to the adverse employment action,
or(4) were not motivating factors in employment decisions for other employees
in the same circumstances.'"2° The employee may also satisfy his burden by
presenting sufficient evidence that discrimination was a substantial factor
motivating the employer.21
19Brownfield v. City of Yakima, 178 Wn. App. 850, 874, 316 P.3d 520 (2014)(quoting Kuvper v. Dep't of Wildlife, 79 Wn. App. 732, 738, 904 P.2d 793 (1995)).
29 Scrivenerv. Clark Coll., 181 Wn.2d 439, 447, 334 P.3d 541 (2014) (quoting Scrivener v. Clark Coll., 176 Wn. App. 405, 412, 309 P.3d 613(2013), rev'd on other grounds, Scrivener, 181 Wn.2d 439, 442).
21 Id.
10 No. 73847-0-1/1 1
An employer's lack of documentation regarding the employee's poor
performance may provide "circumstantial evidence that the proffered discharge
justifications were fabricated post hoc."22 But "[s]peculation and belief are
insufficient to create a fact issue as to pretext. Nor can pretext be established by
mere conclusory statements of a plaintiff who feels that he has been
discriminated against.'"23
Here, Washington relies on the following facts to show that Group Health's
stated reasons for terminating his employment were pretextual:
1) Washington did not receive a negative performance rating before his
termination.
2) Sims did not provide documentation of any negative issues regarding
Washington.
3) Sims allegedly knew of Washington's medical conditions when
Washington requested an adjusted work schedule.
4) Sims began the process to terminate Washington's employment on the
same day that Washington opposed his schedule readjustment.
5) Sims terminated Washington's employment shortly after receiving
Washington's e-mail, which provided notification of his medical
condition.
Griffith v. Schnitzer Steel Indus., Inc., 128 Wn. App. 438, 450, 115 P.3d 22 1065(2005).
23Hines v. Todd Pac. Shipyards Corp., 127 Wn. App. 356, 372, 112 P.3d 522(2005)(quoting McKev. v. Occidental Chem. Corp., 956 F. Supp. 1313, 1319 (S.D. Tex. 1997)(court order)).
11 No. 73047-0-1/12
Whether these facts demonstrate that Group Health's reasons are
"'unworthy of belief" is at issue.24 The trial testimony provided context in
determining whether substantial evidence supports the jury's verdict.
Sims testified that Washington did not mention his medical conditions prior
to their meetings in August. Sims also discussed his evaluation of Washington's
performance, stating that he "could have been more critical" of Washington's
performance. But because Washington was a new employee, Sims tried to
"coach' and "steer" him. Sims also explained that Washington was 1 argumentative about his work hours during their two meetings, which occurred
after Washington's performance evaluation. Additionally, Washington had
missed meetings after the performance evaluation and seemed withdrawn from
the team during the meetings he attended.
Although Sims terminated Washington's employment soon after they
discussed Washington's schedule and medical appointments, Sims testified that
he made the decision due to Washington's behavior during these discussions.
The jury was entitled to accept this testimony as credible, a determination not
subject to our review.
In light of all the evidence presented to the jury, substantial evidence
supports the jury's verdict that Washington "[d]id [not] meet his burden of proving 1 his disability-discrimination claim by a preponderance of the evidence." Thus,
Washington did not carry his final burden of showing that Group Health's stated
reasons for his discharge were pretextual.
24 Brownfield, 178 Wn. App. at 874 (quoting Kuvper, 79 Wn. App. at 738).
12 No. 73847-0-1/13
Washington argues that the evidence "overwhelmingly showed that the
termination was discriminatory" and that the jury did not have to choose between
competing inferences. This simply is untrue in that the jury reasonably decided
otherwise on the basis of substantial evidence.
Failure to Accommodate
Washington also argues that the jury's verdict on his accommodation
Under WLAD, a disabled employee has a cause of action if he can
demonstrate that his employer "failed to take steps reasonably necessary to
accommodate the employee's disability."25 "Employers have an affirmative
obligation to reasonably accommodate the disability unless the employer can
demonstrate that the accommodation would cause undue hardship to the:
employer's business."26
Here, the trial court instructed the jury on the elements of a failure to
accommodate claim. According to those unchallenged instructions, Washington
(1) That he had an impairment that is medically recognizable r diagnosable or exists as a record or history; and (2) That either (a) he gave Group Health Cooperative notice of the impairment; or (b) no notice was required to be given because Group Health Cooperative knew about his impairment; and
25 Sommer v. Dep't of Soc. and Health Servs., 104 Wn. App. 160, 172-73, 15 P.3d 664 (2001); see also RCW 49.60.180(2).
26 Id. at 173.
13 No. 73847-0-1/14
(3) That the impairment had a substantially limiting effect on his ability to perform his job; and (4)That he would have been able to perform the essential functions of the job in question with reasonable accommodation; and (5) That Group Health Cooperative failed to reasonably, accommodate the impairment. [27]
On appeal, the parties dispute whether Washington presented substantial
evidence to establish the first and seconds factors. As discussed previously in
this opinion, Dr. Raghu's testimony and the medical record exhibits constitute 1 substantial evidence of Washington's disabilities. Thus, Washington satisfied the
first element of this claim. But we conclude that Washington failed to present
substantial evidence to establish the second element—that he gave Group
Health notice of his disability.
To satisfy the notice factor, the employee must inform his employer that.a
disability requiring accommodation'exists.29 The employee is not required to
explainl the full nature and extent of his disability.29
"[T]he employer's duty to determine the nature and extent of the disability
does not impose an investigatory duty to question any employee suspected of a
disabiliiy."39 An employer's duty to inquire into an employee's disability "arises
27 Clerk's Papers at 643.
28 Sommer, 104 Wn. App. at 173.
29 Id.
39 Goodman v. Boeing Co., 127 Wn.2d 401,409, 899 P.2d 1265 (1995). 14 No. 73847-0-1/15
1 only after the employee has initiated the [accommodation] process by notice. .”31
Group Health provided substantial evidence that it lacked notice of '
Washington's disability. Sims testified that Washington did not mention his
medical conditions prior to their first meeting in August. Additionally, Washington
completed a "Demographic" questionnaire when he first started working for
Group Health. The form had two disability questions and "yes" or "no" boxes for
the employee to mark. The first question asked: "Are you an individual with a
disability?" The second question asked:"Are you requiring a reasonable
accommodation for a disability?" Washington did not mark any boxes.
At trial, Washington testified that he did not mark any boxes because he
was "confused" and "did not know" how to complete the form. He explained that
he informed a human resources employee about his medical conditions and
disabiliiies. Washington told the employee that he was not requesting an
accommodation at that point and did not believe he was "in need of that." The
human resource employee allegedly told Washington to leave the boxes blank
and that his supervisors would help him. The jury was entitled to decide whether
this testimony was credible, a determination not subject to our review on appeal.
Washington also testified that he informed Sims of his medical conditions 1 when tie requested an adjusted work schedule. After Washington's meeting with
Sims in August, Washington e-mailed Sims and Burton to notify them of a
medical condition.
31 Id.
15 No. 73847-0-1/16
Determining whether Group Health had notice of Washington's disability
was a question of fact for the jury.32 The jury was entitled to determine what
evidence was credible and what was not. From the conflicting evidence at trial,
the jury found that Washington failed to "meet his burden" to establish his claim.
Because this record shows there was substantial evidence to support that
decision, there is no basis to overturn the trial court's discretionary determination
to deny the motion for a new trial.
Washington argues that Group Health had an ongoing duty to
accommodate him after it terminated his employment. But as we have
discussed, Washington failed to establish the notice element of his claim.
Because he failed to do so, there simply was no ongoing duty of Group Health.
COUNSEL MISCONDUCT
Washington argues that the trial court abused its discretion by denying his
motionifor a new trial due to Group Health's counsel's prejudicial misconduct.
Because he failed to preserve this issue for review, we do not reach the
substance of the claim.
CR 59(a)(2) permits a new trial due to the prevailing party's misconduct
Misconduct is distinct from merely aggressive advocacy.33 "It is improper for !
32 See Martini v. Boeing Co., 88 Wn. App. 442,458, 945 P.2d 248 (1997), aff'd, 137 Wn.2d 357, 971 P.2d 45 (1999).
33 Miller v. Kenny, 180 Wn. App. 772, 814, 325 P.3d 278 (2014).
16 No. 73847-0-1/17
counsel to invite the jury to decide a case based on anything other than the
evidence and the law, including appeals to sympathy, prejudice, and bias."34
But absent an objection to counsel's comments, this claim "cannot be
raised for the first time in a motion for a new trial unless the misconduct is so
flagrant that no instruction could have cured the prejudicial effect."35
Here, Washington moved for a new trial after the jury entered its verdict
He argued in that motion that Group Health's counsel committed several specific
acts of misconduct. Washington specifically referred to counsel's cross-
examination regarding Washington's prior bankruptcy filing and Washington's ,
physician. The trial court denied Washington's motion for a new trial, concluding
that counsel's cross-examinations were proper.
We also note that Washington did not contemporaneously object to the
comments he challenged in his motion for a new trial. This is an additional
reason to deny relief on appeal.
On appeal, Washington raises new arguments that he did not make
below. He now focuses on counsel's questions regarding Washington's former
employers and a prior termination. Washington also focuses on counsel's
alleged misconduct during opening statement and closing argument. The record
shows that Washington failed to preserve these specific claims because he did
not contemporaneously object. And he fails to demonstrate that any of these
comments were flagrant and ill-intentioned, obviating the need for
M.R.B. v. Puyallup Sch. Dist., 169 Wn. App. 837, 858, 282 P.3d 1124 (2012)!
35 Sommer, 104 Wn. App. at 171.
17 No. 73847-0-1/18
contemporaneous objections. Thus, we will not consider these arguments any,
further.
RETALIATION, WRONGFUL DISCHARGE, AND DAMAGES
Washington contends that Group Health retaliated against him. This claim
is not before us because Washington voluntarily dismissed it with prejudice
before trial.
Washington also argues that Group Health terminated his employment in
violation of public policy. But Washington did not assert this claim in his
complaint, and the record shows that he makes this argument for the first time on
appeal Thus, we do not further consider this argument.36
Lastly, Washington asserts that Group Health cannot limit his damages
because it cannot show that it discovered evidence of Washington's wrongdoing
after it terminated his employment. Because there is no liability, damages are
irrelevant.
We affirm the judgment on the jury verdict and the denial of the motion for
new trial.
WE CONCUR:
6 See RAP 2.5(a). 18