Opinion
No. 36097-7-II.
July 22, 2008.
Appeal from a judgment of the Superior Court for Pierce County, No. 05-2-12912-9, Linda CJ Lee, J., and Waldo F. Stone, J. Pro Tem., entered March 16, 2007.
Reversed and remanded by unpublished opinion per Van Deren, C.J., concurred in by Hunt and Penoyar, JJ .
UNPUBLISHED OPINION
Helen Tucker-Slater appeals the trial court's entry of judgment based on a jury verdict finding that the City of Lakewood (City) did not retaliate against her for opposing employment practices that she reasonably believed to be prohibited. She contends that the trial court erred in (1) dismissing her additional claim of retaliatory hostile work environment, (2) improperly instructing the jury, and (3) denying her motion for a new trial based on juror bias. Although we find no error with the trial court's dismissal of the stated claim of retaliatory hostile work environment, we hold that the trial court erred when it also dismissed Tucker-Slater's retaliation claim for acts occurring before termination and that the jury instructions could have misled the jury. Therefore, we reverse and remand for a new trial.
FACTS
Tucker-Slater, an African-American female, first worked for the City as an intern in 1997. On November 1, 2000, she began employment with the City on a contract basis in a grant-funded position as a community advocate interviewer of female victims of domestic violence. She worked flexible hours, usually from 10:00 am to 6:30 pm. During 2001, Tucker-Slater applied for an open position as a full time victim advocate. When the City offered Tucker-Slater the position, it informed her that, (1) rather than a lateral move, her position was as a new hire; (2) she was required to perform the more difficult duties of a victim advocate; and (3) she was subject to the City's six-month probation period.
Sometime in 2001, then-city attorney, Dan Heid, and assistant city attorney, Anneke Berry, spoke to Tucker-Slater, as a co-worker, about the current in-court testimony of an African-American male who used a racial slur, because they wanted to get Tucker-Slater's opinion about the witness's use of the term. Tucker-Slater later called her immediate supervisor, Anita Booker-Hay, at home and indicated that the conversation had upset and concerned her. Booker-Hay is also an African-American and, as an assistant city attorney, worked directly for Heid. She apparently suggested that Tucker-Slater either voice her concerns directly to Heid or to the human resources office.
In January 2002, Booker-Hay implemented changes to the victim advocate program. One change was that victim advocates were required to make telephone contact with crime victims before their cases appeared on the court calendar. Booker-Hay explained the new duties to the victim advocates and told Tucker-Slater that she would be required to work an 8:30 am to 5:00 pm schedule. According to Tucker-Slater, she had previously told Booker-Hay that medical reasons dictated her need to work the modified hours of 10:00 am to 6:30 pm. When Tucker-Slater was unable to get Booker-Hay to accept her existing schedule, she spoke to then-acting city attorney, Mike McKenzie, who authorized her to continue it. According to Tucker-Slater, when she told Booker-Hay about her conversation with McKenzie, Booker-Hay stated: "You won't pass probation anyway." Clerk's Papers (CP) at 187. Booker-Hay later denied making such a comment and asserted that Tucker-Slater first mentioned a medical problem to her after she spoke with McKenzie. In January 2002, Tucker-Slater was diagnosed with obstructive sleep apnea requiring surgery and took a three-week medical leave for the surgery and recuperation in February. On March 25, Tucker-Slater returned to work on a part-time schedule until April 15, when she resumed full-time duties.
According to Booker-Hay, when Tucker-Slater returned, her attitude and performance deteriorated. As a result, Booker-Hay met with new city attorney, Heidi Wachter (formerly Heidi Horst), to discuss Tucker-Slater's poor performance. Booker-Hay then met with Tucker-Slater and discussed Tucker-Slater's attitude and her duties. Later, a staff attorney reported that Tucker-Slater did not properly complete victim contacts for two of the domestic violence court calendars.
In May 2002, Booker-Hay presented Tucker-Slater with her six-month probationary evaluation and extended her probation an additional three months to August 20, 2002. In relevant part, the evaluation stated:
Because [Tucker-Slater] was out of the office for some time following the adoption of the new victim advocate protocols, she has not had a lot of time to learn to perform all of the duties assigned. Based upon this, I recommend an extension of her probationary period for another three months. During that time period, I will have a better opportunity to observe [her] and her performance of specific duties.
CP at 211-12.
Tucker-Slater submitted a six-page rebuttal to Booker-Hay's performance appraisal, complaining about the probation extension, alleging that she was being harassed by other employees, and that she was required to perform more work than the other victim advocates. In response, Wachter asked Booker-Hay to investigate Tucker-Slater's concerns. Booker-Hay's July 10 follow-up memo to Wachter stated that Tucker-Slater had actually been carrying a lighter case load than other advocates. On July 29, 2002, Booker-Hay extended Tucker-Slater's probation an additional three months.
On Friday, August 23, 2002, Tucker-Slater complained to Wachter that an advocate assistant, Rainbow Thomas, used a racial slur in her presence. When Wachter asked Tucker-Slater about the context in which the racial slur was made, Tucker-Slater became upset and advised Wachter that she was getting a migraine headache and that she was leaving for the day. Tucker-Slater claimed that Thomas had unnecessarily and intentionally used the racial slur to repeat what was contained in a police report. According to Thomas, she quoted from a police report to ask Tucker-Slater about it because Tucker-Slater had previously been involved in that same case.
On August 26, 2002, Wachter had Thomas prepare a written statement about the issue and, during a legal department staff meeting, Wachter reminded employees to be sensitive about repeating information contained in police reports because some staff member could be offended by the comments. According to Booker-Hay, she contacted Tucker-Slater after the staff meeting and told her of Wachter's admonition to the staff. On August 28, she sent an e-mail message to Wachter and Booker-Hay, copied to her attorney, which essentially stated that she perceived the City's actions as retaliation based on her complaints. On August 29, 2002, the City fired her.
Tucker-Slater filed a complaint seeking damages for race discrimination, hostile work environment, retaliation, age discrimination, and disability discrimination. Eventually, all claims were dismissed except her claim alleging retaliatory discharge under RCW 49.60.210. The City denied any retaliatory purpose and asserted that Tucker-Slater was discharged due to her poor work performance and inability to adapt. On February 15, 2007, the jury by special verdict found in favor of the City. Tucker-Slater unsuccessfully moved for new trial based on juror bias.
Additional procedural facts are presented in the analysis where appropriate.
Tucker-Slater appeals.
ANALYSIS
I. Summary Judgment
Tucker-Slater contends that the trial court erred in granting summary judgment dismissal of her "retaliatory hostile work environment claim" because that claim was not "subsumed" in her retaliatory termination claim. Br. of Appellant at 21.
A. Standard of Review
We review an order granting summary judgment de novo. Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57, 65, 837 P.2d 618 (1992). "Summary judgment is appropriate only when, after reviewing all facts and reasonable inferences in the light most favorable to the nonmoving party, there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law." McClarty v. Totem Elec., 157 Wn.2d 214, 220, 137 P.3d 844 (2006); see also CR 56(c). "The plaintiff has the initial burden of establishing a prima facie case of employment discrimination. Once the plaintiff establishes a prima facie case, an inference of discrimination arises." Clarke v. Office of Attorney Gen., 133 Wn. App. 767, 788, 138 P.3d 144 (2006), review denied, 160 Wn.2d 1006 (2007) (internal citation omitted).
B. Retaliatory Harassment
1. Additional facts
Tucker-Slater's amended complaint alleged five claims under chapter 49.60 RCW: (1) race discrimination, (2) hostile work environment, (3) retaliation, (4) age discrimination, and (5) disability discrimination. Under retaliation, Tucker-Slater alleged that the City's conduct amounted to unlawful retaliation "for complaining about . . . unlawful employment practices." CP at 5.
The City sought summary judgment dismissal "of all of [Tucker-Slater's] claims." CP at 15. It included deposition testimony by Tucker-Slater, Wachter, Booker-Hay, and DebraYoung, human resources director for the City, and declarations by Booker-Hay, Young, and Wachter incorporating their responses to Tucker-Slater's earlier Equal Employment Opportunity Commission complaint.
In opposition to the City's motion for summary judgment, Tucker-Slater asserted that the letters incorporated in the declarations of Booker-Hay, Young, and Wachter were hearsay and that:
[The City] has moved for summary judgment seeking dismissal of [Tucker-Slater's] complaint and all of her claims. Specifically, [the City] seeks dismissal of (1) the race discrimination disparate treatment claim, (2) the age discrimination claim, (3) the race-based hostile work environment [claim], (4) the retaliation claim, and (5) the disability disparate treatment claim. [Tucker-Slater] does not challenge the dismissal of the following: (1) race discrimination disparate treatment claim, (2) the age discrimination claim, and (3) the disability disparate treatment claim. [Tucker-Slater] challenges the dismissal of the race-based hostile work environment claim, and the retaliation claim.
[The City's] summary judgment motion does not seek dismissal of [Tucker-Slater's] retaliation-based hostile work environment claim nor the disability-based retaliation claim. See Sebree Dec., Exh. No. 11, [Tucker-Slater's] Response to
Interrogatory No. 22; Sebree Dec., Exh. [No.] 12, p. 120:4-11.
Consequently, the Court may not grant summary judgment on these issues.
CP at 128-29.
Thus, Tucker-Slater initially acknowledged that the City sought dismissal of "all of her claims" but argued that the City did not seek dismissal of additional claims which she asserted in her response to the City's interrogatory number 22 and in her deposition. But the record shows that Tucker-Slater declined to answer interrogatory number 22 ("Please name and describe each disability alleged in the pleadings.") because she asserted it exceeded the "limit of 35 under Pierce County local rules." CP at 164. And the portion of her deposition she relies on is a question that asks:
Tucker-Slater confirmed in oral argument that she did not formally amend her complaint to add the claims she stated in her answer to interrogatories or in her deposition.
You claim that you were discharged in a retaliatory fashion because you complained about the "N" word being used in your presence, you sought to get accommodation to start at 10 o'clock instead of 8:30 because of your medical condition, and you took time off to have surgery and to recuperate from that surgery due to your medical condition.
She answered: "Okay." CP at 172.
At the hearing on the City's first summary judgment motion, the City argued that Tucker-Slater's "retaliation-based hostile work environment claim" (1) had not been properly pleaded and (2) was not a recognized cause of action in Washington. Tucker-Slater challenged summary judgment dismissal of "the hostile work environment claim, the retaliatory harassment claim, the retaliatory-based hostile work environment claim, and the disparate treatment retaliatory claim based on the unlawful termination." Report of Proceedings (RP) (Sept. 22, 2006) at 6.
The trial court asked Tucker-Slater: (1) how, under these facts, the hostile work environment claim based on retaliation was "not just retaliation" and (2) where Tucker-Slater had pled that claim. RP (Sept. 22, 2006) at 16. In response, Tucker-Slater argued that the claim was not entirely novel and that she had pled the claim in her interrogatories. When asked to clarify her claims, Tucker-Slater stated that there were only three claims remaining, "[t]he hostile work environment claim based on race, the hostile work environment claim based on retaliation, and the retaliatory termination." RP (Sept. 22, 2006) at 24. She also made it clear that the "[h]ostile environment claim [was] based on retaliation starting in January 2002, and [the] hostile work environment [claim was] based on race starting in the fall of 2001." RP (Sept. 22, 2006) at 22. Thus, her claim for "retaliation-based hostile work environment" was based on her complaint to Mike McKenzie regarding her modified work schedule and Booker-Hay's actions after that complaint.
The trial court granted summary judgment on the hostile work environment claim based on race, stating that the attorneys' use of the racial term in conversation with Tucker-Slater in the fall of 2001 was an isolated incident and, therefore, not sufficiently severe or pervasive to alter the conditions of the work environment. But the trial court denied summary judgment on the retaliatory termination claim based on the August 2002 incident and the retaliation-based hostile work environment claim.
On the City's motion for reconsideration, the following exchange occurred between the trial court and Tucker-Slater:
THE COURT: Let me stop you there. You are saying they're two completely different claims based on completely different fact patterns?
[TUCKER-SLATER]: Right.
THE COURT: But as I recall the summary judgment motion and the facts that were provided to this Court on the summary judgment motion, don't you use the same facts to support both claims? So my question to you? is, isn't the retaliatory hostile work environment claim subsumed by the retaliatory termination claim, because —
[TUCKER-SLATER]: Absolutely —
THE COURT: — because the same facts, the same fact pattern is being used to support both claims?
[TUCKER-SLATER]: Absolutely not, your Honor, and I apologize for interrupting you. The fact pattern that supports the hostile work environment began January 31st, 2002, up to August 2002.
RP (Oct. 20, 2006) at 8-9.
The trial court granted summary judgment on the hostile work environment retaliation claim, ruling that "based on what's been presented . . . that claim has been subsumed by the [sole remaining] retaliatory termination claim." RP (Oct. 20, 2006) at 13. Tucker-Slater immediately sought clarification:
[TUCKER-SLATER]: Your Honor, may I ask for a point of clarification? When you — In terms of — Does your ruling today mean that the evidence in terms of the retaliatory harassment is to be precluded from this case?
THE COURT: The only claim that has survived through all of the summary judgments is the retaliatory termination claim.
[TUCKER-SLATER]: And so with respect to other acts of retaliation, is the Court ruling that those other acts are precluded from being introduced into evidence?
THE COURT: I'm not making a ruling one way or the other. I'm saying the claim that has survived is the retaliatory termination claim.
TUCKER-SLATER]: Okay. May I make a suggestion to the Court? And that is that the claim as identified in the complaint is retaliation, not retaliatory termination, and that if the Court is going to rule that way, that then the Court should say or should be specific in saying that the only claim that survives is the retaliation claim.
THE COURT: Thank you for your suggestion. However, we went through all of this during our summary judgment argument the last time around. And if you recall, [the City] had to draw a chart for everyone and we had to specify exactly what the claims were. And it was not just retaliation. You specifically clarified it was retaliatory termination. That's what we're going with.
RP (Oct. 20, 2006) at 13-14.
2. Analysis
Washington's law against discrimination, chapter 49.60 RCW, prohibits retaliation against an employee who opposes practices forbidden by law. RCW 49.60.210. To determine whether the law against discrimination supports a "retaliation-based hostile work environment claim" we may look to federal cases construing the Civil Rights Act of 1964 (Title VII), as amended, which forbids discrimination based on an employee's "race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). See Robel v. Roundup Corp., 148 Wn.2d 35, 43-44, 59 P.3d 611 (2002). Although federal cases interpreting Title VII are not binding on this court, they are "instructive" and "support[ive]." Glasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 406 n. 2, 693 P.2d 708 (1985).
Tucker-Slater asserted a claim of "retaliation-based hostile work environment," citing Jensen v. Potter, 435 F.3d 444 (3rd Cir. 2006). In Jensen, decided on January 31, 2006, the Third Circuit Court of Appeals discussed a split within the federal circuits about whether "a retaliation claim predicated upon a hostile work environment is cognizable under [Title VII]." Then-circuit Judge Alito noted that, while the majority of the circuits believed that Title VII prohibits severe or pervasive retaliatory harassment, the "Fifth and Eighth Circuits . . . limit [Title VII] to `ultimate employment decisions,' and thus do not view harassment to be within the statute's reach." Jensen, 435 F.3d at 448.
The Jensen court, citing Robinson v. City of Pittsburgh, 120 F.3d 1286 (3rd Cir. 1997), held that where retaliatory harassment is so severe as to adversely affect employment, Title VII supported a cause of action consisting of the following elements: "(1) [the plaintiff] suffered intentional discrimination because of her protected activity; (2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected her; (4) it would have detrimentally affected a reasonable person in like circumstances; and (5) a basis for employer liability is present." 435 F.3d at 449 (footnotes omitted).
Tucker-Slater argued this point in opposition to summary judgment. RP (Sept. 22, 2006) at 16 ("Retaliation, like race, gender, sex, religion, is a protected category."). But on June 22, 2006, the United States Supreme Court decided Burlington Northern Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006), which held that the scope of the Title VII retaliation provision is broader than its substantive discrimination provision. And on September 13, 2006, just one month before Tucker-Slater filed her response to the City's motion for reconsideration, the Third Circuit decided Moore v. City of Philadelphia, 461 F.3d 331 (3rd Cir. 2006).
In Moore, white police officers claimed that they were subjected to adverse employment actions based on their complaints about mistreatment of their fellow black officers. 461 F.3d at 336-38. The Third Circuit recognized that Burlington Northern effectively abrogated both Jensen and Robinson by expanding the scope of the retaliation provision:
In Burlington Northern . . . the Supreme Court disagreed with a formulation like the one we adopted in Robinson and Jensen. It found that the discrimination and retaliation provisions of Title VII have different statutory language and different purposes, and accordingly, that the anti-retaliation provision, unlike the substantive provision, is not limited to discriminatory actions that affect the terms and conditions of employment.
Moore, 461 F.3d at 341 (citations and internal quotation marks omitted). The Third Circuit reasoned that:
While white workers may be unable to successfully complain under the antidiscrimination provision of Title VII solely because they are required to work in an environment hostile to blacks, if they became the victims of "materially adverse actions" because they reasonably perceived that environment as violative of Title VII and objected, they have a valid retaliation claim.
Moore, 461 F.3d at 342 (footnote omitted).
Moore clarifies that, because Burlington Northern expanded the scope of Title VII retaliation claims where a plaintiff asserts harassment based on retaliation, the proper cause of action is one based on retaliation rather than on a hostile work environment. 461 F.3d at 342. Accordingly, the Moore court suggested that the Title VII retaliation provision supported a cause of action where (1) a plaintiff is engaged in protected activity (including complaining about discrimination wrongs), (2) the employer takes a materially adverse employment action against her (including severe harassment sufficient to discourage opposition), and (3) there is a causal connection between her participation in the protected activity and the adverse employment action. 461 F.3d at 340-41. Tucker-Slater cites no case decided after Burlington Northern and Moore that supports a separate "retaliation-based hostile work environment" claim.
Here, Tucker-Slater's claim labeled "retaliation-based hostile work environment" was no longer supported by the law she relied on when she opposed the trial court's reconsideration of the City's motion for summary judgment. Because Tucker-Slater failed to meet her burden of coming forward with a valid prima facie claim, the trial court did not err in granting summary judgment dismissal of her "retaliation-based hostile work environment" claim.
But the trial court erred when it ruled that her retaliatory harassment claim was "subsumed" within her claim of retaliatory termination. As Burlington Northern, Moore, and subsequent cases make clear, retaliation claims are not limited to cases where employment termination occurs. See also CBOCS West, Inc. v. Humphries, ___ U.S. ___, 128 S. Ct. 1951, ___ L. Ed. 2d ___ (2008); Gomez-Perez v. Potter, ___ U.S. ___, 128 S. Ct. 1931, ___ L. Ed. 2d ___ (2008). Rather, materially adverse employment actions, that is, actions that are so severe as to curtail the protected activity, also support a valid retaliation claim. Therefore, although the facts Tucker-Slater alleged were more properly pleaded as claims of retaliation, her retaliatory harassment claim was not "subsumed" within her retaliatory termination theory of recovery.
Here, the record shows that Tucker-Slater came forward with contested facts involving (1) Booker-Hay and her complaint about working hours and the subsequent two extensions of her probationary period and (2) the August 2002 incident and her termination. Thus, Tucker-Slater raised significant issues of material fact about her retaliation claims sufficient to survive summary judgment based on the City's conduct before termination. See Moore, 461 F.3d at 340-42. We hold that the trial court erred in dismissing her retaliation claim based on conduct occurring before her termination in August 2002.
A different judge was assigned to the trial. Based on the earlier summary judgment order, the trial court restricted Tucker-Slater's claim to one of retaliatory termination. Although it allowed evidence of the earlier alleged retaliation by Booker-Hays at trial, it limited the jury's consideration to her August 2002 firing as the sole retaliatory conduct for which the City could be found liable. Because Tucker-Slater did allege facts supporting an additional retaliation claim that was erroneously dismissed, we remand for a new trial on her retaliation claims.
II. Jury Instruction 20
Tucker-Slater contends that the trial court erred in giving various jury instructions that the evidence did not support, that misstated the law, and that confused or misled the jury. She requests that we reverse the trial court based on the erroneous instructions and remand for a new trial. We agree.
A. Standard of Review
We review jury instructions de novo, and "an instruction that contains an erroneous statement of the applicable law is reversible error where it prejudices a party." Thompson v. King Feed Nutrition Serv, 153 Wn.2d 447, 453, 105 P.3d 378 (2005). "Jury instructions are sufficient if they allow the parties to argue their theories of the case, do not mislead the jury and, when taken as a whole, properly inform the jury of the law to be applied." Hue v. Farmboy Spray Co., 127 Wn.2d 67, 92, 896 P.2d 682 (1995). We presume that a clear misstatement of the law is prejudicial. Keller v. City of Spokane, 146 Wn.2d 237, 249-50, 44 P.3d 845 (2002).
Because we find that the error in jury instruction 20 is dispositive and requires a new trial and because we hold that the trial court erred to the extent that it limited the jury's consideration of Tucker-Slater's additional retaliation claim arising before August 2002, we address only instruction 20, leaving to retrial the formulation of applicable instructions on remand.
B. Analysis
Tucker-Slater contends that the trial court erred as a matter of law in instructing the jury that it could only find in favor of her if she proved that the City "unlawfully discriminated" against her. Br. of Appellate at 38 (quoting CP at 423). Instruction 20 stated:
A legitimate, non-discriminatory reason for discharging an employee is any reason or explanation unrelated to an employee's age, sex, marital status, race, creed, color, national origin or physical disability.
The ultimate burden of persuading you that defendant intentionally discriminated against plaintiff remains at all times with plaintiff.
You may not find in favor of plaintiff unless she proves that defendant unlawfully discriminated against her.
CP at 423 (emphasis added).
At trial, Tucker-Slater objected and argued that she needed to prove only that the City unlawfully retaliated against her. The trial court declined to change the instruction. Jury instruction 20 is problematic. RCW 49.60.210(1) states that:
It 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.
It is possible that the last sentence in the instruction was meant to refer to the "otherwise discriminate" language in the statute, which, in this case, was the City's alleged retaliation. But under the circumstances, it misstated the law and allowed the jury to find in favor of Tucker-Slater only if it felt that she had proven discrimination.
The essential element of Tucker-Slater's claim was whether the City intentionally retaliated against her based on her asserted reasonable belief that the use of racial slurs at work was a forbidden activity. Whether the use of racial slurs at work actually amounted to a discriminatory policy or activity is immaterial to a claim based on an objectively reasonable belief that retaliation occurred based on an employee's opposition to forbidden activity. See Ellis v. City of Seattle, 142 Wn.2d 450, 460, 13 P.3d 1065 (2000) ("In the retaliatory discharge context, Washington law has recognized a cause of action where an employee has an objectively reasonable belief an employer has violated the law."); see also Graves v. Dept. of Game, 76 Wn. App 705, 712, 887 P.2d 424 (1994).
Although instruction 11 correctly stated the law on this issue, the jury could have arguably been confused and misled by instruction 20. If an instruction is merely misleading, it will not require reversal unless prejudice is shown. Here, it is unclear whether the jury would have reached a different conclusion had it been properly instructed and we presume the instruction was prejudicial. Keller, 146 Wn.2d at 249. Accordingly, we agree with Tucker-Slater that the trial court erred in giving jury instruction 20, warranting reversal and remand for a new trial on this basis alone.
Instruction 11 stated:
To establish a claim of unlawful retaliation by defendant city, plaintiff has the burden of proving each of the following propositions:
(1) That plaintiff was opposing what she reasonably believed to be discrimination on the basis of race; and
(2) That a substantial factor in the decision to terminate was plaintiff's opposition to what she reasonably believed to be discrimination.
If you find from your consideration of all of the evidence that each of these propositions have been proved, then your verdict should be for plaintiff. On the other hand, if any one of these propositions has not been proved, your verdict should be for defendant city.
Plaintiff does not have to prove that her opposition was the only factor or the main factor in defendant city's decision, nor does she have to prove that she would not have been terminated but for her opposition. CP at 414.
Tucker-Slater also contends the trial court abused its discretion in denying her motion for a new trial based on juror misconduct and bias. She asserts that the trial court should have at least "held an evidentiary hearing to determine juror bias." Br. of Appellant at 51. Because we reverse and remand for a new trial we do not address this contention.
III. Hearsay Evidence
Tucker-Slater assigns error to the trial court's admission of "hearsay testimony regarding the use of the `N' word by nonparty individuals outside the workplace." Br. of Appellant at 2. In her statement of facts, she identifies Exhibits 113 and 126 as "prejudicial" and "inadmissible evidence" admitted over her "objections." Br. of Appellant at 20. She also mentions as hearsay testimony about the "use of the racial slur by an African-American male in an unrelated criminal proceeding and the criminal background of the defendant in that case." Br. of Appellant at 52. But other than these passing references, she provides no argument on the issue.
Exhibit 126 is part of the record and appears to be a police report about the arrest of Michael Fuller, the individual who was the subject of the comments made to Tucker-Slater on August 23, 2002. Although the report may lack relevance or otherwise be inadmissible, it seems unlikely that it was offered to prove the matter asserted within and, thus, did not fall within the hearsay rule. Moreover, a careful review of the record shows that Tucker-Slater's objection was only to relevancy of this exhibit and she seemed satisfied when the court agreed to issue a limiting instruction.
Heid's September 25, 2002, statement to Booker-Hay, exhibit 113, explains his use of the term the "`N' word" in conversation with Tucker-Slater. The record shows that exhibit 113 was admitted on redirect to rebut Tucker-Slater's cross-examination of Heid about the conversation. The City argued that it had the right to rebut Tucker-Slater's claims that the actual racial slur had been used by Heid. Therefore, the letter was possibly admissible as a prior consistent statement to rebut Tucker-Slater's suggestion on cross-examination that Heid used the racial slur in her presence. See ER 801(d)(1)(ii). As Tucker-Slater provides no other citation to the record or argument on this issue, we decline to further consider the matter. See Habitat Watch v. Skagit County, 155 Wn.2d 397, 416, 120 P.3d 56 (2005) (passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration).
IV. Attorney Fees
Tucker Slater requests attorney fees and costs on appeal under RCW 49.60.030(2) and RAP 18.1. 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." Although RCW 49.60.030(2) does not specifically authorize attorney fees "on appeal," our Supreme Court been interpreted it to grant the prevailing parties their attorney fees and costs on appeal. Hegwine v. Longview Fibre Co., Inc., 162 Wn.2d 340, 361, 172 P.3d 688 (2007). But as the City argues, even if we reverse and remand for a new trial, Tucker-Slater has yet to prove the merits of her claim under chapter 49.60 RCW; therefore, we decline to award her attorney fees. See Hegwine, 162 Wn.2d at 362 (awarding fees only after concluding that the appellant prevailed on the merits of her underlying claim); see also Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 153, 94 P.3d 930 (2004) ("Where a party has succeeded on appeal but has not yet prevailed on the merits, the court should defer to the trial court to award attorney fees.").
We reverse and remand for a new trial.
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 pursuant to RCW 2.06.040, it is so ordered.
HUNT, J. and PENOYAR, J., concur.