Opinion
No. 22656-5-III
Filed: April 21, 2005
Appeal from Superior Court of Spokane County. Docket No: 99-2-05753-2. Judgment or order under review. Date filed: 01/16/2004. Judge signing: Hon. Jerome J. Leveque.
Counsel for Appellant(s), Keller Wayne Allen, Allen McLane PC, 421 W Riverside Ave Ste 421, Spokane, WA 99201-0402.
Howard Mark Goodfriend, Edwards Sieh Smith Goodfriend PS, 1109 1st Ave Ste 500, Seattle, WA 98101-2988.
Thomas W. McLane, Allen McLane PC, 421 W Riverside Ave Ste 421, Spokane, WA 99201-0402.
Catherine Wright Smith, Edwards Sieh Smith Goodfriend PS, 1109 1st Ave Ste 500, Seattle, WA 98101-2988.
Counsel for Respondent/Cross-Appellant, Mary Elizabeth Schultz, Attorney at Law, 818 W Riverside Ave Ste 810, Spokane, WA 99201-0917.
Cheryl Forbes sued American Building Maintenance (ABM) for employment sex discrimination, creating a hostile work environment, and retaliation. A jury awarded her $4 million. On appeal, ABM's contentions include the trial court erred in (1) instructing the jury regarding a pre-existing condition, (2) permitting an industrial psychologist to testify about improper employer tactics used to create a reason for employment termination, and (3) adding awards to compensate Ms. Forbes for judgment and attorney fee tax consequences. Ms. Forbes cross-appeals from the trial court's denial of her request for an additional award of pre-judgment attorney fees. We affirm the judgment but reverse the denial of additional fees.
FACTS
From 1988 to 1997, Cheryl Forbes was employed by ABM as the manager of the company's Spokane office. In 1997, she went on a medical disability leave. ABM terminated her in early 1999. In October 1999, she sued ABM for sex discrimination, creating a hostile work environment and retaliation for complaining about the discriminatory conduct. In March and April 2003, Ms. Forbes' action and that of another former employee were tried together, despite ABM's efforts to sever the cases.
At trial, Ms. Forbes presented evidence of her job performance, the company's treatment of male employees who, she asserted, were similarly situated, and, beginning in 1996, the job environment she worked in after the company acquired the business of a Spokane competitor. The competitor's former owner, who had been openly antagonistic to Ms. Forbes before the acquisition, was brought into the Spokane operation as an employee.
Ms. Forbes testified that in 1989, the first year she managed ABM's Spokane branch, she increased profits 31 percent. In the ensuing years, the company recognized her as one of just a few top managers in the nation. In 1992, she told Jack Smith, the senior vice-president of ABM's northwest region, she was interested in a promotion to either the Portland or Seattle branches. When the promotion to Seattle went to someone else, she confronted Mr. Smith, who told her that `Seattle wasn't ready for a woman manager.' Report of Proceedings (RP) at 2943. He also commented that her husband was in Spokane, and she should not force a move.
You can check that number, but my check of the record cite said 31.
Ms. Forbes related she later heard Mr. Smith was wondering when she was going to have children. She asked him about this, and he told her he did not remember stating that to anyone; on the other hand, Ms. Forbes testified Mr. Smith did not assure her that children would not be an issue. Ms. Forbes testified that between 1990 and 1995, several persons in ABM management had approached her for sexual relations.
In September 1995, over Ms. Forbes' advice, ABM acquired Allied Janitorial (Allied), its largest competitor in the Spokane market. She believed ABM could eventually secure Allied's customers without buying the company because ABM offered better service at lower costs and could procure Allied by competition. ABM's janitorial division vice-president, Harold Edge, agreed with her. In addition, he testified the Allied acquisition was accomplished without following the company's protocol. Specifically, Mr. Smith and CEO William Steele presented it as `a done deal.' RP at 891.
Ms. Forbes testified David Watkins, Allied's owner, had been openly hostile to her in the past. She had heard rumors, and he admitted at trial, he told his employees and customers that the reason she had such high sales records was because she did her work on her `knee-pads,' implying she gained customers by trading sexual favors. RP at 2981. She was particularly apprehensive because Mr. Watkins was to become an ABM employee under her supervision after the acquisition. Ms. Forbes believed he would make it difficult to perform her managerial role. She told Mr. Smith of these concerns. Mr. Smith procured a promise from Mr. Watkins to quit making the accusations regarding her trading sexual favors for business.
Ms. Forbes testified Mr. Watkins would not accept direction from her. When she told him his car allowance expenses were not appropriate, he began sending his expense reimbursement requests directly to Mr. Smith to approve. Ms. Forbes testified that when she brought up anything that Mr. Watkins did not want to do, he would either go to Mr. Smith or just look at her and say, `I don't have to listen to you, you know. Jack Smith, . . . he's my boss, not you. I'm not listening to you. I don't listen to my wife. I'm not going to listen to you.' RP at 2993. When Ms. Forbes spoke with Mr. Smith about her difficulties with Mr. Watkins, he told her, `that's just Dave.' RP at 2994.
By January 1996, Ms. Forbes testified the effect of Mr. Watkins' lack of performance in serving the former Allied accounts was spilling over to the rest of the Spokane staff. In Exhibit 71, Ms. Forbes informed Mr. Smith by memo she was in a crisis management mode, not getting any help from Mr. Watkins and was receiving multiple complaints on his accounts. She and her assistant were averaging 11-hour workdays and could not keep up that pace. She asked Mr. Smith for help, but she received no reply. Additional memos elicited no response. Ms. Forbes stated she contacted Mr. Smith by phone, and he told her he would get back to her, but never did.
Ms. Forbes' problems with Mr. Watkins escalated when Mr. Watkins discovered an accounting method, directed by Mr. Smith, decreased the revenue attributed to Allied's former accounts and thereby lessened acquisition payments to him. Soon, Mr. Watkins was calling Ms. Forbes a thief to customers and to ABM employees. He renewed his old charges of sexual misconduct.
By May 1996, the situation required a visit from Donna Dell, ABM's human resources officer. Ms. Dell met with ABM employees privately, but she did not meet with Ms. Forbes. Ms. Dell later told Ms. Forbes her employees found her management style `too controlling.' RP at 3035. Ms. Forbes had never heard that criticism before. About that time, Mr. Smith, Mr. Watkins, and CEO William Steele met at a nearby resort to talk about Spokane branch management changes. Mr. Watkins told Mr. Smith he was going to sue ABM if it did not fire Ms. Forbes. He testified Mr. Smith told him ABM would bring in another person as co-manager, and Mr. Watkins would not have to report to Ms. Forbes. Ms. Forbes was not informed of the meeting or discussions.
In August 1996, Mr. Smith told Ms. Forbes ABM was placing Peter Cain in Spokane to assist her. Mr. Smith told her the acquisition `ha[d] not happened smoothly,' and it was her fault. RP at 3044. Mr. Cain arrived in late 1996. Contrary to her original understanding, he came with the title of co-manager. Soon, Mr. Cain established a friendly relationship with Mr. Watkins, and the other employees were dividing into camps, effectively circumventing her authority. In spring 1997, Mr. Smith told Ms. Forbes he had received employee complaints about her. When she challenged him, he traveled to Spokane and met with most of the office personnel, but not her.
In a June 30, 1997 memo, Mr. Smith notified Ms. Forbes that Mr. Cain was the sole branch manager, and she had been demoted to senior account manager. Ms. Forbes called Ms. Dell for assistance, but Ms. Dell refused to get involved because she said it looked like simply a `personality conflict' between Ms. Forbes and Mr. Smith. RP at 3077. On July 17, 1997, Ms. Forbes went on medical disability leave after presenting a doctor's letter informing ABM that she could not return to work due to stress. Her maximum salary was then $105,000. According to Ms. Forbes, no one from ABM ever contacted her to see how she was doing or told her the company was holding a job for her. After one year, her eligibility for disability compensation ended. She was terminated without notice.
Ms. Forbes presented evidence of ABM's dissimilar treatment of similarly situated male managers. For example, Adam Foltz, an assistant regional manager for ABM, lost three accounts in 1996 through 1997, totaling nearly half of the monthly receipts for his area. He testified management was supportive and recognized clients come and go as part of the business. He was promoted to general manager in 1999. Mr. Foltz agreed success as a branch manager required the support of upper management. `Another ABM manager testified that during his medical leave, he was allowed to keep his company car, and it was clear to him that ABM was holding a position available for him.
Two ABM women managers testified about unfavorable treatment. Christy Davis testified, as Bellevue branch manager, she quadrupled revenues, even gaining Microsoft for ABM. While she was out of state, Mr. Smith met with her employees, and then told her he had issues with her management style. Ultimately, Mr. Smith split her authority, moved the Microsoft account to the other manager, and cut her salary. She left ABM in 1999, after hearing more complaints about her management style. She testified, `after you're with ABM for awhile, you realize that there's so many branch managers and such a small percentage of women. And, when I know I'm capable, . . . but I'm not going anywhere, I don't know what the difference is other than gender.' RP at 757.
Melba Pinnow, who managed ABM's Anchorage office from 1993 through 1998, had a similar experience. In October 1997, Mr. Smith privately met with Ms. Pinnow's employees, and then told her of complaints about her management style. He placed her on probation, then terminated her two months later. Her replacement was a man with no prior experience.
Over ABM's objection, the trial court allowed the testimony of David Aamodt, Ph.D., a professor of industrial psychology at Radford University. He described tactics experts recognize as having the end purpose of disabling a management employee to justify employee terminations.
Dr. David Bot, Ms. Forbes' psychiatrist, testified at trial. He opined her mental condition that included a serious depression, led to her medical disability and was largely due to ABM's unfair treatment. Further, she was predisposed to passive/dependent and self-destructive behavior, and emotional mood swings. He testified that `[i]f things are going okay at work, you know, a lot of other things . . . get let go. But when there are problems at work that lights up problems like trust, direct effective communication, self-esteem, effective problem solving, and ability to focus and have the energy to accomplish things.' RP at 3289-90.
Dr. Allen Bostwick, Ms. Forbes' clinical psychiatrist in 1997, testified Ms. Forbes did not have a personality disorder, `but she had some personality traits that resulted in self-defeating behaviors . . ., and specifically those were avoidant, narcissistic, and dependent personality traits.' RP at 3391. Avoidant traits include the excessive need to avoid conflict and underlying feelings of low self-esteem that cause hypersensitivity to criticism. He believed high achievers are often people who feel inadequate and have low self-esteem. `They have to do things right because that's what they get positive feedback from. . . . Moreover, when you do things perfectly, that . . . minimizes . . . the likelihood that [the person] is going to be criticized or fail or be rejected.' RP at 3393.
On cross-examination, Dr. Bostwick agreed persons with preexisting emotional disorders could misperceive criticism of their work performance as harassment or discrimination. However, on re-direct, Dr. Bostwick stated that avoidant personalities tend to not deal with conflict because of their fear of criticism or rejection. And, Ms. Forbes' personality was the same when she joined ABM as when she left it. Inferentially, she successfully worked for ABM for many years before the work environment problems occurred in 1996 through 1997.
Called as a witness for Ms. Forbes, Mr. Smith was questioned about his treatment of a male manager in Seattle. Although the male manager had failing profit margins, Mr. Smith promoted him. And, he did not investigate the male manager as he had Ms. Forbes, by talking to his employees privately. Mr. Smith related how his treatment of Ms. Forbes differed from the treatment of a male employee who had taken medical leave because of depression.
Mr. Smith testified he brought Mr. Cain to Spokane because Ms. Forbes had requested help and had asked him to transfer Mr. Cain to assist her. While he admitted he had told Ms. Forbes not to credit the Allied accounts with extra work ordered by former Allied customers, he asserted Ms. Forbes, on her own, continued to debit the Allied accounts with the expenses incurred in those extra work orders. Mr. Smith admitted meeting Mr. Watkins and Mr. Steele in Coeur d'Alene in 1996, but denied he then told Mr. Watkins he would bring Mr. Cain into the office so that Mr. Watkins did not have to report to Ms. Forbes.
ABM offered evidence that Ms. Forbes opposed the Allied acquisition, wanted it to fail, and did not hire necessary extra help to deal with the increased work, even at Mr. Smith's urging. ABM also presented evidence it did not treat her differently than male managers in either promotion or medical leave situations. By June 1996, it was apparent to Mr. Smith that Ms. Forbes was not successfully managing the acquisition. By letter, he detailed his concerns to her, but waited for another six months before demoting her. Meanwhile, ABM executives urged her to move to another ABM management position outside of Spokane. Positions opened in Denver and in Atlanta, but she declined to move.
The jury found that beginning in January 1996, ABM had discriminated against Ms. Forbes, had created a hostile work environment, and had retaliated against her for her complaints of unequal treatment. It awarded her a total of $4 million — $614,478 for lost wages; $1,754,547 for lost future wages; and $1,625,975 for emotional distress.
ANALYSIS A. Jury Instructions
ABM assigns multiple errors to the trial court's jury instructions, mainly those concerning Ms. Forbes' preexisting condition. First, ABM contends the trial court erred in refusing its proposed Instruction 17, suggesting the jury use the perspective of a reasonable person to decide whether a hostile work environment existed. Instead, the court gave Instruction 14 over ABM's objection, telling the jury a hostile work environment exists if language or conduct occurs because of a person's gender and it affects the terms or conditions of employment.
Proposed Instruction 17: `In determining whether a hostile work environment existed, you must consider the evidence from the perspective of a reasonable person. In making this determination, you must look at the evidence from the perspective of a reasonable person's reaction to a similar environment under similar circumstances. You cannot view the evidence from the perspective of an overly sensitive person.' Clerk's Papers (CP) at 546. The proposed instruction is similar to the American Bar Association's `Model Jury Instructions for Employment Litigation.' 1.04 [2][b][1] at 43-44.
Instruction 14 partly states, a `[h]ostile work environment occurs when: 1. Language or conduct occurs because of the plaintiff's gender; 2. This language or conduct is offensive or unwelcome; 3. The conduct or language affects the terms or conditions of employment; and 4. The conduct can be imputed to the employer. . . .' RP at 4908-09.
Actionable conduct under Title VII is `so objectively offensive as to alter the conditions of the victim's employment.' Oncale v. Sandowner Offshore Serv., Inc., 523 U.S. 75, 81, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998). "Conduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive — is beyond Title VII's purview." Id. (quoting Harris v. Forklift Sys. Inc., 510 U.S. 17, 21, 114 S. Ct. 367, 126 L. Ed. 2d 295 (1993). The court emphasized, `the objective severity of harassment should be judged from the perspective of a reasonable person in the plaintiff's position, considering `all the circumstances." Id. (quoting Harris, 510 U.S. at 23).
Here, the language of the court's Instruction 14 is taken from Glasgow v. Georgia-Pacific Corporation, 103 Wn.2d 401, 406, 693 P.2d 708 (1985). While the language of the trial court's instruction does not use the term `objective' or `subjective,' it does state that the `conduct or language [must] affect the . . . conditions of employment.' (Instruction 14) RP at 4908. Thus, Instruction 14 allowed ABM to argue its defense theory that the conduct complained of did not affect the terms and conditions of Ms. Forbes' employment because her perceptions were misperceptions caused by her personality type. For example, ABM argued `[s]he has this personality disorder, and that shapes her perception of how she views events. . . . And people with mental disorders can misperceive criticism of their work performance as harassment or discrimination.' RP at 5039-40, 5042.
Further, Instruction 14 is consistent with Oncale, Harris, and Adams v. Able Building Supply, Incorporated, 114 Wn. App. 291, 297, 57 P.3d 280 (2002). The Adams court stated: `[t]he conduct must be so extreme as to amount to a change in the terms and conditions of employment. The conduct must be both objectively abusive (reasonable person test) and subjectively perceived as abusive by the victim.' Adams, 114 Wn. App. at 297 (citations omitted).
Given these authorities, proposed Instruction 17 is not mandatory in hostile work environment cases. While the court must correctly instruct the jury on the law and on each party's legitimate theories, the particular wording of instructions is left to the court's discretion. Farm Crop Energy, Inc. v. Old Nat'l Bank, 109 Wn.2d 923, 933, 750 P.2d 231 (1988). Therefore, we conclude the court did not err in rejecting ABM's proposed Instruction 17.
Next, ABM contends the court's four separate Instructions (24 through 27) addressing Ms. Forbes's preexisting mental condition, overemphasized her theory of the case. See Samuelson v. Freeman, 75 Wn.2d 894, 897, 454 P.2d 406 (1969). Instruction 24 told the jury a defendant must take a victim as he or she finds the victim and is liable for the `manner and degree in which its fault manifests itself on [the victim's] individual physiology.' (Instruction 24) RP at 4914. Instructions 25 through 27 concern three different scenarios. Instruction 25 covers the situation in which the jury concludes the plaintiff had a dormant condition that was made active by the defendant's conduct. Instruction 26 concerns the situation in which the jury concludes that the plaintiff had a dormant condition that made her more susceptible to injury from the defendant's conduct. Finally, Instruction 27 covers the situation in which the jury determines that the plaintiff had an active condition that was causing her injury and the defendant's conduct aggravated that injury.
`[W]henever the evidence is in dispute as to the existence of a preexisting condition or disability, it is appropriate to use instructions based on both WPI 30.17 and 30.18.' Thogerson v. Heiner, 66 Wn. App. 466, 474, 832 P.2d 508 (1992). Here, the evidence was disputed as to whether Ms. Forbes' depression was activated by ABM's conduct, whether it was aggravated by ABM's conduct, or whether it was solely due to other events in her life at the time. Thus, the instructions covered three different situations. They benefited ABM because they advised the jury to solely award damages for injuries, if any, that ABM was responsible for. Accordingly, Instructions 24 through 27 do not run afoul of the Samuelson prohibition against repetitious instructions favoring one party's theory of the case.
Lastly, ABM contends the trial court additionally erred in giving Instruction 24 by telling the jury a defendant is liable for damages if a preexisting condition of the victim makes her more susceptible to harm than the ordinary plaintiff. But, the instruction is supported by Xieng v. Peoples National Bank of Washington, 63 Wn. App. 572, 821 P.2d 520 (1991), aff'd, 120 Wn.2d 512, 844 P.2d 389 (1993). There, the plaintiff based his claim of severe emotional distress and depression, resulting from national origin discrimination, upon a psychiatrist's testimony that the Bank's discriminatory activity `lit up' the plaintiff's preexisting post-traumatic stress disorder supported that finding. Id. at 526. The facts show we have nearly identical testimony here.
ABM unsuccessfully tries to distinguish Xieng on the basis the defendant in that case knew that the plaintiff was suffering from a preexisting condition, but ABM was unaware of Ms. Forbes' diagnosis. The Xieng court did not base its decision on the Bank's knowledge of the plaintiff's preexisting condition.
ABM cites Dahlen v. Gulf Crews, Incorporated, 281 F.3d 487 (5th Cir. 2002) to support its argument that the `eggshell skull' plaintiff instruction is appropriate only in negligence actions, not discrimination actions. The court cited Restatement 2d Torts, sec. 461 (1977), which states that a negligent actor is liable even if he or she lacks knowledge of the plaintiff's condition which makes the injury greater than it otherwise would be. Id. at 495. The Dahlen court's holding should not be interpreted as restricting the `eggshell skull' doctrine to only negligence actions. Illustratively, the federal cases next discussed involve quite similar discrimination claims.
In Jenson v. Eveleth Taconite Company, 130 F.3d 1287, 1294-95 (8th Cir. 1997), cert. denied, 524 U.S. 953 (1998), the court held the doctrine applied to an employer in a sex discrimination action who aggravated the plaintiff's underlying emotional condition, even though the employer did not know of the condition. In Williamson v. Handy Button Machinery Company, 817 F.2d 1290, 1294 (7th Cir. 1987), the court reasoned discrimination `contributed to Williamson's mental deterioration. Perhaps she was unusually sensitive, but a tortfeasor takes its victims as it finds them.' And, in Avitia v. Metropolitan Club of Chicago, Incorporated, 49 F.3d 1219, 1228 (7th Cir. 1995), the court observed that `[i]n a statutory tort case as in a common law tort case, the `eggshell skull' rule prevails, so it is no defense to an award of full damages that the plaintiff's injury was amplified by a preexisting condition for which the defendant was not responsible.'
Given all, we hold the superior court properly instructed the jury.
B. Disparate Treatment Evidence
The question is whether substantial evidence supports the jury finding that ABM discriminated against Ms. Forbes, beginning in January 1996, but not before. ABM contends Ms. Forbes did not present evidence of disparate treatment after that date.
RCW 49.60.180(3) protects more than hiring and promotion decisions by making it an unfair practice for an employer `[t]o discriminate against any person in . . . conditions of employment because of . . . sex.' `A prima facie case of disparate treatment requires the plaintiff to show that (1) he is in a protected class . . .; (2) suffered an adverse employment action; (3) was doing satisfactory work; and (4) was treated differently than someone not in the protected class.' Kirby v. City of Tacoma, 124 Wn. App. 454, 468, 98 P.3d 827 (2004) (citing Roeber v. Dowty Aerospace, 116 Wn. App. 127, 135, 64 P.3d 691, review denied, 150 Wn.2d 1016 (2003)).
Here, Ms. Forbes presented evidence showing after 1996, ABM treated her differently from male managers whose offices had acquired a competing business. ABM did not quickly respond to her request it provide her with support help, refused to back her up in her dealings with the former owner of the acquired business, met with office staff and others without her knowledge and input, demoted her to a lesser position when its lack of support created a deteriorating workplace, and did not assure her it would hold her position until she returned from medical leave. All of these actions occurred after January 1996, the date the jury found the discrimination began. Therefore, substantial evidence supports the verdict.
C. Retaliation Evidence
ABM next asks if Ms. Forbes presented sufficient evidence of retaliation. Under RCW 49.60.210(1), `[i]t is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter.' `To establish a prima facie case for retaliation, a plaintiff must show that (1) he or she engaged in statutorily protected activity, (2) an adverse employment action was taken, and (3) there is a causal link between the employee's activity and the employer's adverse action.' Francom v. Costco Wholesale Corp., 98 Wn. App. 845, 861-62, 991 P.2d 1182 (2000).
ABM argues because Ms. Forbes did not apprise it of her belief that she was being discriminated against, the jury could not find that it retaliated against her. ABM's argument ignores the fact that Ms. Forbes did complain to Mr. Smith about both Mr. Watkins' conduct and the lack of support the company was giving her in the acquisition. Ms. Forbes showed this was the exact opposite of how the company responded to male managers who requested help during an acquisition. She produced evidence from which the jury could infer Mr. Smith worked to undermine her position and authority by telling Mr. Watkins to deal with him directly and meeting directly with her employees after she complained of Mr. Watkins' undermining actions. Ultimately, Mr. Smith demoted her. The foregoing evidence establishes a prima facie case of retaliation, as set forth in Francom.
In sum, we conclude the retaliation verdict is supported by substantial evidence.
D. Front Pay Evidence
ABM contends the evidence shows it terminated Ms. Forbes for not returning to work after one year, the maximum time provided for medical leave, and not for any discriminatory or retaliatory reason. The jury disagreed. Above, we decided the jury's findings concerning Ms. Forbes' disparate treatment, hostile work environment, and retaliation claims are supported by the evidence. The findings, in turn, support the front pay award. Therefore, no further analysis is required.
E. Misconduct Allegations
Based mainly upon claimed misconduct by Ms. Forbes' counsel in closing argument, ABM asks us to conclude the trial court erred in not granting its motion for a new trial. During argument, ABM alleges counsel improperly asked the jury to return to Ms. Forbes the profits she earned while an employee.
During pretrial motions, the trial court was asked to rule in limine on the admissibility of emotional distress damage evidence regarding ABM's profits and sales. Ms. Forbes' counsel argued, `if you . . . can produce that amount of money for this corporation [and the corporation] did what they did to you in 1995 to 1997 . . ., what is . . . the value of that damage . . .?' RP at 64. Further, `[i]f I had worked for a company for 17 years and I produced 70 to 100 million dollars of revenue for that company and they did to me what they did to Cheryl Forbes, that is a significant component of . . . emotional damage.' RP at 65. Thinking aloud, the court expressed concern that what counsel wanted the jury to know was that no matter the award size, it was not going to hurt ABM, as it would a small business. The court stated such an argument is `getting dangerously close to punitive damages. So be very careful.' RP at 65. The court deferred ruling until during trial `because I can't envision all of the criteria that's going to be around at [that] time.' RP at 67. Ultimately, the court admitted evidence of the profits and sales of ABM's northwest region, which included the Spokane branch.
During closing argument, Ms. Forbes' counsel asked, `[w]hat is the value of [the effect of ABM's actions on Ms. Forbes' spirit]? Cheryl Forbes over the course of her career produced $50 million of revenue to this company. . . . This is a very unique case because Cheryl Forbes was an incredible producer. The profits that she generated alone were over $5 million of profit. . . . [A]nd they destroyed her.' RP at 4991. Defense counsel objected, calling the argument based upon profits improper. The court ruled, `[i]t borders on her abilities as a manager, but it also gets close.' RP at 4991-92. Presumably, `close' is a reference to the court's earlier concern that this type of argument borders on a request for punitive damages; i.e., the jury should make its award large enough to hurt ABM.
Counsel then argued: `I am going on. I want you to think of that in terms of the value of the emotions. 14 years of her life to be humiliated and crushed by this master. How do you heal that emotion? How do you heal what happens to someone who has produced this kind of performance? There is a justness for me in saying the measure of your pain is what your efforts produced.' RP at 4992. Again, defense counsel objected. The court overruled, but stated, `Counsel, you are very close.' RP at 4992. Ms. Forbes' counsel continued, `[t]he most elegant way of healing in this instance is to allow the soul to say, what was obtained from me is returned to me. And, I suggest that, when you go back and consider the value of the rest of this person's life and what it meant to their self-image after what they had done, that you consider returning to Cheryl Forbes to heal what she gave.' RP at 4992-93.
Punitive damages are not available in Washington. See Dailey v. North Coast Life Ins. Co., 129 Wn.2d 572, 919 P.2d 589 (1996) (a discrimination case). Our question is whether the counsel's closing argument amounted to a request for punitive damages. In denying the new trial motion, the court ruled, `[t]he argument was an argument designed to request that the Plaintiff be made whole, and the jurors were given means of evaluation of how to accomplish that goal.' CP at 2093. We agree.
The argument did not go beyond what the court had set as the limit that only a large award would hurt ABM. Ms. Forbes' counsel argued the amount of damages that would compensate Ms. Forbes for her emotional distress was the amount that the company gained in profits as a result of her work. That amount was $5 million. The jury awarded her $1,625,975 for emotional distress out of $4 million overall. Even if the argument was poorly worded, the jury awarded far less than the $5 million dollars mentioned. From this, we are not persuaded that the jury verdict was necessarily affected by improper argument. See Conrad v. Lakewood General Hosp., 67 Wn.2d 934, 940, 410 P.2d 785 (1966) (verdict was not so excessive as to warrant inference it was not based on objective valuation).
As evidence of further counsel misconduct, ABM points to questions implying ABM threatened a witness, questions ruled improper, profanities at sidebar, unnecessary head shaking and note passing, and deliberate re-ordering of witness notes. On review, we hold these instances were not misconduct or were de minimis in nature, not affecting the verdict.
Considering all, we conclude the trial court did not abuse its discretion when it denied ABM's motion for a new trial.
F. Severance
The issue is whether the trial court erred in denying ABM's severance motion.
Colleen Myers was a plaintiff, along with Ms. Forbes. Ms. Myers alleged sexual harassment by her supervisor, Mr. Watkins, who became an ABM employee following ABM's acquisition of Mr. Watkins' business, Allied Janitorial. Specifically, Ms. Myers claimed after she ended a consensual affair with Mr. Watkins, he harassed her, and that she notified ABM of Mr. Watkins' conduct, but ABM did nothing.
At a pretrial hearing before a Judge different than the trial judge, ABM unsuccessfully sought severance. The court reasoned joinder was supported by the fact that many of the same witnesses (some of them from out-of-state) would be needed, and the fact that evidence of the environment in the Spokane office would be offered in both claims. ABM unsuccessfully renewed its motion at the beginning of trial. At the close of trial, the jury was instructed, `[i]n this case, two plaintiffs bring separate claims against the same defendants. You must consider each plaintiff's claim separately from the other.' RP at 4901. The jury found for Ms. Forbes and against Ms. Myers. Finally, ABM unsuccessfully raised the issue again in its motion for a new trial. The trial court considered it `clear from the verdict itself that the jury did not have problems distinguishing the two cases of Forbes and Myers and [therefore denial of the motion to sever] did not prejudice the defendant.' CP at 2093.
Under CR 20, `[a]ll persons may join in one action as plaintiffs if they assert any right to relief . . . in respect of or arising out of the same transaction, occurrence, or series of transactions or occurrences and if any question of law or fact common to all of these persons will arise in the action.' In support of its contention that separate allegations of hostile work environment did not come within the provisions of CR 20, ABM cites a Georgia case, Howard Motor Company, Incorporated. v. Swint, 214 Ga. App. 682, 448 S.E.2d 713 (1994) (similar occurrences or transactions are insufficient for joinder; they must be the same).
Ms. Forbes argues even if joinder was improper, ABM was not prejudiced because the jury found against Ms. Myers. She argues under CR 42(a), a court may consolidate actions with a common question of law or fact, and the court's decision is reviewed only for an abuse of discretion which prejudices the moving party. Leader Nat'l Insur. Co. v. Torres, 51 Wn. App. 136, 142, 751 P.2d 1252 (1988). CR 42(a) provides: `When actions involving a common question of law or fact are pending before the court, . . . it may order all the actions consolidated.'
We did not find a case discussing a harmless error role in appellate review of CR 20 joinder decisions in civil cases. But, the United States Supreme Court applied a harmless error analysis to a joinder decision in a criminal case. United States v. Lane, 474 U.S. 438, 106 S. Ct. 725, 88 L. Ed. 2d 814 (1986). Lane held misjoinder results in prejudice in criminal cases if the joinder decision denies a defendant's Fifth Amendment right to a fair trial. Id.
If improper joinder of criminal defendants is subject to harmless error analysis, then improper joinder of civil claimants, whose liberty interests are not at stake, can reasonably be tested by a harmless error analysis. We are confident the joinder of Ms. Forbes' and Ms. Myers' claims against ABM did not prejudice ABM. The superior court instructed the jury it must consider the claims separately; the jury verdict for Ms. Forbes and against Ms. Myers indicates that it did so. Therefore, applying a harmless error analysis, we conclude any error in denying severance was harmless.
G. Expert Testimony
The issue is whether the trial court abused its discretion in admitting the testimony of an industrial psychologist to the effect that acts not overtly discriminatory could, nevertheless, be improper.
Over ABM's objection, Dr. Aamodt, an industrial psychology professor at Radford University, was permitted to describe tactics experts recognize as having the end purpose of disabling a management employee and providing false termination justification. For example, upper management can decide to bypass the manager by talking directly to employees. It can relieve the manager of certain responsibilities, causing the manager to be concerned about job security. It can start rumors, causing employees to shift loyalties to another person whose authority is on the upswing. It can bring into the workplace persons with competing authority, causing confusion among employees as to who is in charge. A manager in such situations may perceive that their best option is to quit rather than risk the company firing them. Dr. Aamodt testified that an aggressive woman is typically perceived as more aggressive than a male counterpart, even if the level of aggression in both is the same.
Generally, under ER 702, `[i]f scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.' A trial court has discretion when deciding whether to admit expert opinion testimony under ER 702, and the court's decision will be upheld absent an abuse of discretion. Philippides v. Bernard, 151 Wn.2d 376, 393, 88 P.3d 919 (2004). If the expert is qualified, relies upon accepted theories, and can state an opinion helpful to the trier of fact, then a court acts within its discretion in admitting the expert testimony. Id. On review, helpfulness to the trier of fact is broadly construed. Id.
ABM relies upon Kotla v. Regents of University of California, 115 Cal. App. 4th 283, 291, 8 Cal. Rptr. 3d 898 (2004), a case involving a plaintiff alleging she was fired for supporting the sexual harassment claim of one of her subordinates. The trial court allowed an expert to testify that certain facts in evidence indicated the defendant's motive in terminating her was retaliation. The Kotla court reversed, holding the expert was `in no better position than [the jury] to evaluate the evidence concerning retaliation.' Id. at 293. In addition, the instruction in question advised the jury that while it was not bound by opinion evidence, `you may not arbitrarily or unreasonably disregard the expert opinion testimony in this case which was uncontradicted. Therefore, unless you find it is not believable, it is conclusive and binding on you.' Id. at 293 n. 4.
Kotla is distinguishable based upon the jury instruction alone. Here, the jury was instructed that:
[a] witness who has special training, education, or experience may be allowed to express an opinion in addition to giving testimony as to facts. You are not, however, required to accept his or her opinion. To determine the credibility and weight to be given to this type of evidence, you may consider, among other things, the education, training, experience, knowledge, and ability of the witness. You may also consider the reasons given for the opinion and the sources of his or her information, as well as considering the factors already given to you for evaluating the testimony of any other witness.
(Instruction 5) RP at 4904.
Moreover, unlike the expert in Kotla, Dr. Aamodt was helpful to the jury because he identified seemingly non-discriminatory acts by an employer that, when viewed globally, could indicate a pattern of discrimination. Dr. Aamodt opined that undercutting authority and reassigning responsibilities could signal an attempt on an employer's part to build a non-discriminatory case for termination when the true basis was discriminatory. Relevant here, is if the employer uses such tactics with female employees, but not with male employees, the practice could imply a discriminatory intent on the part of the employer.
In sum, we conclude no error exists in admitting Dr. Aamodt's testimony.
H. TAX CONSEQUENCES
The issue is whether the trial court erred in awarding Ms. Forbes an amount in addition to the jury award to compensate her for the tax consequences of that award. After the verdict, Ms. Forbes moved the superior court for an additional award of $944,429 `to compensate her for the adverse federal tax consequences stemming from the jury's damage award and award of attorney's fees.' CP at 1420. The court awarded her $759,893.
RCW 49.60.030(2) provides that, `[a]ny person deeming himself or herself injured by any act in violation of this chapter shall have a civil action in a court of competent jurisdiction . . . to recover the actual damages sustained by the person . . . together with the cost of suit including reasonable attorneys' fees or any other appropriate remedy.' In Blaney v. International Association of Machinists Aerospace Workers District No. 160, 151 Wn.2d 203, 214-16, 87 P.3d 757 (2004), the Court held, `[a]n offset for additional federal income tax consequences is properly characterized under [RCW 49.60.030(2)'s] provision for `any other appropriate remedy." Ms. Blaney had sought a supplemental judgment for the additional amount she would have to pay in taxes above what she would have paid if the defendant had not discriminated against her. Id. at 208-09.
Under Blaney, both attorney fees and emotional distress damages are properly included in a `tax consequences' supplement to the judgment. ABM's reliance on federal authority excluding emotional distress damages and pre-judgment interest is not persuasive, given our Supreme Court's decision in Blaney. See also Perry v. Costco Wholesale, Inc., 123 Wn. App. 783, 804-05, 98 P.3d 1264 (2004).
In passing, after Blaney was decided and after the entry of judgment in this case, the Washington legislature in 2004 enacted a bill amending RCW 60.40.010, which deals with attorneys' fee liens. Laws of 2004, ch. 73, § 1. That amendment provides that, `[t]hrough this legislation, Washington law clearly recognizes that attorneys have a property interest in their clients' cases so that the attorney's fee portion of an award or settlement may be taxed only once and against the attorney who actually receives the fee.' Laws of 2004, ch. 73, § 1. Further, `except for RCW 60.40.010(4), the statute is intended to apply retroactively.' RCW 60.40.010(4) states that, `[t]he lien created by subsection (1)(d) of this section is not affected by settlement between the parties to the action until the lien of the attorney for fees based thereon is satisfied in full.'
The above amendment may have been generated by the decision of the Ninth Circuit of the United States Court of Appeals in Banaitis v. Commissioner, 340 F.3d 1074 (9th Cir. 2003), cert. granted, 124 S. Ct. 1713, 158 L. Ed. 2d 398 (2004). There, the Court reviewed a tax court decision which held that a taxpayer who settled a wrongful discharge action was not entitled to exclude from his reported gross income attorney fees payable under a contingent fee contract. The Court reversed the tax court because, `Oregon law . . . affords attorneys generous property interests in judgments and settlements. . . . [A]n attorney's lien in Oregon is `superior to all other liens' except `tax liens." Id. at 1082. And, under Oregon law, an attorney has a right to sue a third party for fees left unsatisfied by a private settlement with the client. Id. Because of the unique features of Oregon law which `vests attorneys with property interests that cannot be extinguished . . . except by payment to the attorney,' the court held that those fees were not includable in the client's gross income. Id. at 1083.
On January 24, 2005, the Supreme Court issued its decision in Banaitis, rev'd sub nom C.I.R. v. Banks, 125 S. Ct. 826 (2005). It reversed the Ninth Circuit and held that attorney fees are taxed to the client. Banaitis, 340 F.3d, 1074 (9th Cir. 2003), rev'd sub nom, C.I.R. v. Banks, 125 S. Ct. 826 (2005). Blaney therefore continues as good law and supports the superior court's award of `tax consequences' in its judgment.
This court is also aware of a recent change in federal laws which makes attorney fee awards taxable to the attorney only. But the judgment here was entered before the effective date of that amendment.
I. Cross-Appeal
The issue is whether the trial court erred in denying Ms. Forbes additional attorneys fees for work done before the judgment was entered.
Trial in this case took place in April and May 2003. The court entered judgment in favor of Ms. Forbes on January 16, 2004. The judgment included an award of attorney fees and costs through September 23, 2003, in the amount of $504,736.98 in fees and $84,377.88 in costs. On February 12, 2004, Ms. Forbes filed a document entitled `Statement of Fees and Costs, Post Trial in Trial Court' that reflected additional fees and costs from September 24, 2003 through February 1, 2004 of $15,520.85. CP at 2101-13.
On March 11, 2004, the trial court entered an order denying Ms. Forbes' request for additional fees and costs. It determined the request was `in substance and effect a CR 59 Motion for Reconsideration, and [was] not timely.' CP at 2130-31.
RCW 49.60.030(2) provides that a person injured by a discriminatory act may file suit to recover damages, `together with the cost of suit including reasonable attorneys fees.' The question here is whether, considering CR 59(b), Ms. Forbes had to file her request for supplemental attorney fees no later than the time for a motion for reconsideration — no later than 10 days after entry of the judgment. In arguing that CR 59(b) does not apply, Ms. Forbes cites J.L. Steele v. Lundgren, 96 Wn. App. 773, 982 P.2d 619 (1999). There, the plaintiff in a successful suit for damages under chapter 49.60 RCW did not file her request for attorney fees until seven weeks after the judgment was entered. The court held the request was timely. See also Van Pham v. City of Seattle, 124 Wn. App. 176, 103 P.3d 827 (2004); Hirata v. Evergreen State Ltd. P'ship, No. 5, 124 Wn. App. 631, 103 P.3d 812 (2004).
Here, the judgment specified the attorney fee award was for `[a]ttorney's fees through Sept. 23, 2003.' CP at 2078. Considering the absence of any set time period in statute or court rule for submission of a fee request in an action under discrimination law, we hold that such a request must be within a reasonable time. The request here was submitted 27 days after the judgment. If the plaintiff's original request for fees in Steele was considered timely when it was filed seven weeks after entry of judgment, then the supplemental request here was also timely. Therefore, the trial court erred.
J. Attorney Fees on Appeal
Ms. Forbes requests attorney fees on appeal under RCW 49.60.030(2). She is entitled to such fees pursuant to the statute and RAP 18.1. We grant the request, dependent upon Ms. Forbes filing an affidavit of said fees within 10 days of the filing of the court's decision here, pursuant to RAP 18.1(d). The amount of fees will be decided by a commissioner of this court. RAP 18.1(f).
K. Post-Appeal Motions
In July 2004, ABM moved this court for an order `authorizing the superior court to enter an order revising the underlying judgment to conform with newly enacted legislation.' Motion to Authorize Trial Court Action under RAP 7.2(e) at 1. ABM's motion is based upon two statutory amendments. First, RCW 4.56.110 was amended to reduce the interest rate on tort judgments, effective June 10, 2004. Second, RCW 60.40.010 revised the attorney lien statute to end double taxation of attorney fees obtained through judgments and settlements. These motions have been referred by our Acting Chief Judge to this panel for decision.
The trial court agreed the amendments apply to Ms. Forbes' judgment and, if this court gives permission, it will modify its judgment to reduce the tax consequences award to $409,939, and change the statutory interest rate to 3.198 percent. Ms. Forbes resisted ABM's motion. The attorney fee taxation issue is controlled by the United States Supreme Court's opinion reversing Banaitis. State law cannot change that holding. Therefore, ABM's motion is denied insofar as it relates to any change in the tax consequences portion of the superior court judgment.
I would prefer to get the cite to the US case after "by" when the most complete cite is available before we file this case.
The other portion of ABM's motion seeks permission for the trial court to enter an amended judgment reducing the post judgment interest rate. The rate provided for in Ms. Forbes' judgment is 12 percent. The trial court agreed with ABM that the amendment to RCW 4.56.110 effective June 10, 2004 reducing the interest rate for tort judgments to 3.198 percent applies here.
Under RAP 7.2(e), the trial court has authority to hear and determine an action to modify its decision. However, if such determination changes a decision then being reviewed on appeal, the permission of the appellate court must be obtained before formal entry of the trial court determination.
Here, the trial court has authority to modify its decision on the interest rate that applies to the judgment, pursuant to CR 60(b)(11). That rule provides that the court may relieve a party from a final judgment for enumerated reasons, including CR 60(b)(11): `[a]ny other reason justifying relief from the operation of the judgment.' And, this court, under RAP 7.2(e), grants permission to the superior court to enter its order on that determination.
But, since the trial court order regarding the interest rate does not concern an issue raised in this appeal by ABM, the appropriate procedure for raising issues relating to that order is in a separate appeal from that order. See State v. Duncan, 111 Wn.2d 859, 765 P.2d 1300 (1989). In a separate appeal, Ms. Forbes can raise the issues she identifies in her response to this motion.
We grant Ms. Forbes' request for attorney fees for time spent responding to this motion, pursuant to RAP 7.2(d) and RAP 18.1.
CONCLUSION
We affirm the judgment in Ms. Forbes' favor. We reverse on the cross-appeal and remand for entry of a supplemental judgment for attorney fees incurred after September 23, 2003. We award Ms. Forbes reasonable attorney fees in this appeal and motion. Finally, we grant ABM's motion for permission for the trial court to enter its amended judgment reducing the interest rate on the judgment, but deny permission for the court to amend the amount it awarded Ms. Forbes in tax consequences.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SWEENEY, A.C.J. and SCHULTHEIS, J., concur.