Rich v. Bellevue School Dist.
DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 51538-1-I
Title of Case: Bellevue School District, Appellant/Cross-Respondent
v. Carol Rich, Respondent/Cross-Appellant
File Date: 07/12/2004
SOURCE OF APPEAL
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Appeal from Superior Court of King County
Docket No: 99-2-23341-7
Judgment or order under review
Date filed: 11/30/2002
Judge signing: Hon. Douglass a North
JUDGES
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Authored by William W. Baker
Concurring: H Joseph Coleman
Mary Kay Becker
COUNSEL OF RECORD
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Counsel for Appellant(s)
Michael Alexander Patterson
Lee Smart Cook et al
701 Pike St Ste 1800
Seattle, WA 98101-3929
Marc Rosenberg
Lee Smart Cook Martin & Patterson
701 Pike St Ste 1800
Seattle, WA 98101-3929
Counsel for Respondent(s)
Mary Ruth Mann
Law Offices of Mary R. Mann & Associates
Historic Broderick Bldg
615 2nd Ave Ste 760
Seattle, WA 98104
Kenneth Wendell Masters
Attorney at Law
241 Madison Ave N
Bainbridge Island, WA 98110-1811
Charles Kenneth Wiggins
Attorney at Law
241 Madison Ave N
Bainbridge Island, WA 98110-1811
IN THE COURT OF APPEALS FOR THE STATE OF WASHINGTON
CAROL RICH, )
) DIVISION ONE
Respondent/Cross-Appellant, )
) vs. ) No. 51538-
1-I
) BELLEVUE SCHOOL DISTRICT, )
Consolidated with
) No. 51687-6-I
Appellant/Cross-Respondent, ) )
and ) UNPUBLISHED OPINION
)
GLORIA LEE and THERESE J. )
McANDREWS, ) FILED:
)
Plaintiffs. )
)
BAKER, J. Carol Rich was 54 years old when the Bellevue School District
placed her on the Peer Assistance and Review (PAR) program. She remained
on the PAR program until she took a long-term medical leave. She later was
told that if she returned to work, she would continue to be on the PAR
program. Instead of returning, she joined two other teachers to sue the
District for race, disability, and age discrimination. The trial court
granted the District's motion for summary judgment dismissing the race,
disability, and disparate impact age discrimination claims. The other two
teachers resolved their claims, but Rich went to trial on the basis of
disparate treatment age discrimination, claiming that the District used the
PAR program to discriminate against her. The jury awarded her damages and
back pay. The jury also awarded out-of-pocket expenses which the trial
court later struck. The District unsuccessfully moved for judgment
notwithstanding the verdict or a new trial. The District appeals on
several grounds. Rich cross-appeals the dismissal of her disability
discrimination claim. Although the trial court allowed Rich to present a
large quantity of noncomparator evidence, we do not find the trial court
abused its discretion, and therefore affirm. We also affirm the dismissal
of the disability claim.
I
After teaching within the Bellevue School District for five years, Carol
Rich transferred to Eastgate Elementary for the 1997-98 academic year. The
new principal of Eastgate, Judy Buckmaster, had been appointed that year by
the superintendent, Michael Riley. Rich received a negative job evaluation
from Buckmaster, a surprise to Rich because she had previously received
positive evaluations. Buckmaster continued to be unhappy with Rich's work
and referred her for review by a Consulting Peer Educator (CPE). A CPE
evaluates a teacher to decide whether the teacher needs to be placed on the
PAR program. The CPE recommended that Rich be placed on the PAR program
and, after an appeal, the PAR panel followed that recommendation. The
panel is made up of four union members and four administration members.
Persons on the PAR program can be placed into a formal or informal program
or a program for new staff members. During the 1997-98 school year, nine
teachers were placed on the formal PAR program. Of the nine, eight were
over 50 years of age and all were over 40. At the same time, only 60
percent of the staff was over 40 years of age.
II
We first address the District's argument that it should have been granted
judgment notwithstanding the verdict. In 1993, 'motions for judgment
notwithstanding the verdict' were renamed 'motions for judgment as a matter
of law.'1 A trial court may grant a motion for judgment as a matter of law
when, 'viewing the evidence most favorable to the nonmoving party, the
court can say, as a matter of law, there is no substantial evidence or
reasonable inference to sustain a verdict for the nonmoving party.'2
Substantial evidence exists when a fair-minded, rational person can be
persuaded of the truth of the declared premise.3 An appellate court
applies the same standard as the trial court when reviewing a motion for
judgment notwithstanding the verdict (judgment as a matter of law).4
The District asserts that Rich must show that she (1) was in a protected
class; (2) was discharged; (3) was doing satisfactory work; and (4) was
replaced by someone not in the protected class.5 The District is correct
that proving these elements would establish a prima facie case for age
discrimination based on disparate treatment.6 But rigid adherence to that
template is not required. In Grimwood v. University of Puget Sound, Inc.,7
our Supreme Court explained that 'these four elements are not absolutes.'8
The court in Grimwood quoted a federal case to explain that the burden
shifting scheme 'was intended to be neither 'rigid, mechanized or
ritualistic,' nor the exclusive method for proving a claim of
discrimination.'9 The federal court specifically noted that the element of
replacement by a person outside the protected group was not an absolute.10
Rich argues that to prove age discrimination, she must show that (1) she
belongs to a protected class, (2) she was treated less favorably in the
terms and conditions of her employment (3) than similarly situated,
nonprotected employees, and (4) she and the nonprotected 'comparator' were
doing substantially the same work. Rich adapts these elements from a race
discrimination case, and we agree that they serve well for an age
discrimination claim.11
Rich argues that she satisfied the first element by showing that she was 54
when placed on the PAR program. The District counters that simply being
over 40 is not sufficient to prove membership in a protected class. The
District further argues that RCW 49.60.205 and Kilian v. Atkinson12 require
Rich first to prove a violation of RCW 49.44.090 to qualify as a member of
a protected class. But the District misconstrues the purpose of RCW
49.60.205 and the holding in Kilian.
RCW 49.60.205 does not require a person alleging age discrimination to
prove a violation of RCW 49.44.090 as a prerequisite to establishing that
she is in a protected class. Instead, RCW 49.60.205, as interpreted by
Kilian, limits the statutory prohibition against age discrimination to the
confines of the employment context.13 In Kilian, the court declined to
extend Washington's protection against age discrimination to cover an
independent contractor because Washington's age discrimination protection
does not apply to the independent contractor context.14 Rich alleges
discrimination within the employment context. Because she was over 40, she
established the first element.
She also established the other elements of a prima facie case. Rich
offered evidence that, other than new staff (a different category of PAR),
the staff placed on the formal PAR program in 1997-98, were all over 40
years of age despite the fact that approximately 40 percent of the staff
was under 40 years of age. Viewing this evidence in a light most favorable
to Rich, it would allow a jury to conclude that because of her age, Rich
was treated less favorably than younger teachers by being placed on the PAR
program, a condition of employment.
After the plaintiff establishes a prima facie case, the 'evidentiary burden
shifts to the defendant to produce admissible evidence of a legitimate,
nondiscriminatory explanation for the adverse employment action.'15 The
District met its burden of production by presenting evidence that Rich was
performing unsatisfactory work and that she was placed on the PAR program
to help her improve.
If the defendant meets this burden of production, 'the burden of proof
shifts back to the plaintiff, who must then 'be afforded a fair opportunity
to show that {defendant's} stated reason for {the adverse action} was in
fact pretext.''16 Rich offered evidence that the District did not use the
program to improve older teachers' abilities, but instead used the program
to target older teachers. She presented evidence that the evaluators in
the PAR program were instructed to write reports emphasizing only negative
matters, without reporting on any positive aspects of a teacher's
performance or providing any constructive criticism for improvement. Her
evidence implied that the PAR program was wrongly utilized to
administratively harass older teachers into retirement or transfer out of
the district.
The jury may have decided that the PAR program was utilized as a legitimate
tool used to improve the performance of substandard teachers or, failing
that, giving due process to their termination. But taking this evidence in
a light most favorable to Rich, substantial evidence supported her
assertion that the District's reasons for placing her on the PAR program
were pretext. The jury's verdict was supported by the evidence. We affirm
the trial court's denial of the motion for judgment as a matter of law.
New trial
The District argues that the trial court erred by not granting its motion
for new trial. We review an order denying a motion for new trial under the
abuse of discretion standard.17
'Pattern and practice' testimony
The District argues that the court erred by allowing 'pattern and practice'
testimony. Specifically, the District challenges the testimony of 12 of
Rich's witnesses as irrelevant and prejudicial. We apply an abuse of
discretion standard when reviewing a trial court's admission of testimony.18
The District argues that the trial court abandoned any standard when it
allowed Rich to present these witnesses. But the trial court consistently
held that the testimony of other teachers was relevant to 'the question of
what the District's intent was here.' The court explained that 'if
somebody is blatantly discriminating on the basis of age, they don't
usually announce it in a memo
. . . .' Moreover, '{e}vidence of an employer's other discriminatory acts
is admissible in appropriate circumstances.'19 And '{t}he trial court has
broad discretion to determine when the circumstances are appropriate.'20
Later, the court allowed a counselor to testify that teachers sought her
services 'as a result of what was going on in the PAR program, what their
ages were . . . {and} what their complaints were . . . .' The District
objected to the testimony as inappropriate 'pattern and practice'
testimony. But the court found the testimony relevant. In discrimination
cases, '{c}ircumstantial, indirect, and inferential evidence will suffice
to discharge the plaintiff's burden.'21 Although sometimes stretching the
bounds of relevancy, the testimony allowed by the trial court related to a
main part of Rich's disparate treatment argument: that the district
administration used the PAR program to weed out older teachers. The court
did not abuse its discretion.
Testimony about unidentified clients
The District argues the trial court erred by allowing Patricia Starr and
Carolyn Dion, employee assistance counselors for the District, to testify
beyond their expertise. But the court ruled that Starr and Dion could
testify to that which was within their personal knowledge. No abuse of
discretion has been shown.
The District argues the court erred by admitting the testimony of the
counselors about clients, and by admitting a report the counselors prepared
based on interactions with those clients. The District argues that because
those clients were unnamed, it was denied the right to cross-examination.
But the court restricted the counselors' testimony to their personal
knowledge and conclusions. The court rejected the report originally and
did not admit it until all hearsay statements had been redacted. The court
only admitted the sections of the report that were the conclusions of the
counselors. Allowing witnesses to give testimony of their own personal
observations is not an abuse of discretion. The District had ample
opportunity to cross-examine the two counselors about their observations
and their conclusions.
Time limits
The District argues that the trial court erred by enforcing rigid,
arbitrary time limits that prejudiced the District's ability to present its
case. But a trial court has 'considerable latitude in managing its court
schedule to insure the orderly and expeditious disposition of cases.'22
At the start of trial, the plaintiff requested 12 trial days and the
defendant 3. Originally the court granted them 24 hours and 19 hours
respectively. The court ultimately allotted 23.5 hours and 20 hours
respectively. The issues did not change after the parties requested their
allotment of time. About midway through the trial, the court warned the
parties that they had spent 'more time on peripheral witnesses than . . .
is merited.' The court further warned that it would 'not . . . look
favorably upon requests for more time at the end of this case.' Given the
court's latitude and these facts, we find no abuse of discretion.
Jury instructions
The District argues that the trial court erred by failing to instruct on
the essential elements of age discrimination and by failing to instruct on
the District's defenses. A trial court has discretion to decide the number
and specific language of the instructions.23 We use three factors to test
for the sufficiency of instructions: '(1) that the instructions permit the
party to argue that party's theory of the case; (2) that the instruction(s)
is/are not misleading; and (3) when read as a whole all the instructions
properly inform the trier of fact on the applicable law.'24 'No more is
required.'25 A trial court 'is not required to give instructions that are
cumulative' and 'is not required to instruct negatively on a proposition
already stated positively.'26
The District wanted the trial court to instruct on the factors which
compose the burden-shifting scheme set forth by the United States Supreme
Court in McDonnell Douglas Corp. v. Green.27 But those rules 'were never
intended as a charge to the jury.'28 The McDonnell Douglas burden-shifting
scheme is merely a way of establishing a prima facie case.29 After 'the
plaintiff has established a prima facie case and the defendant has produced
evidence of a nondiscriminatory reason for its action, the burden-shifting
scheme 'drops from the case.''30 Once the scheme drops from the case,
'{t}he plaintiff then bears the burden of proving the ultimate fact that
the defendant intentionally discriminated against the plaintiff.'31
The trial court instructed the jury regarding age discrimination as
follows:
Discrimination in employment on the basis of age is prohibited.
To recover, plaintiff has the burden of proving that she is over 40 years
of age and that her age was a significant or substantial factor in
defendant's decision to take adverse actions toward her. Plaintiff does
not have to prove that age was the only factor or the main factor in the
decision, or that plaintiff would not have been subjected to the adverse
personnel actions but for her age.
The jury verdict form asked 'Has Carol Rich proven her claim of age
discrimination?'
The District argues that the trial court should have instructed the jury
about defenses against claims for age discrimination. But the District's
proposed instructions were merely restatements of the elements of a prima
facie case, which the trial court is not obligated to include in the jury
instructions. The District also argues that the trial court erred by
refusing an instruction that Rich must prove discharge or constructive
discharge. But under the holding in Martini v. Boeing Co.,32 even though
Rich does not prove discharge or constructive discharge, a jury may award
her back pay.33
We conclude that the instructions sufficiently permitted the parties to
argue their theories of the case, were not misleading, and when read as a
whole, properly informed the jury of the applicable law.
Finally, the District argues that the court erred by not admitting
documents into evidence even when the author was testifying, and further
erred by allowing improper rebuttal testimony. Assuming arguendo that the
trial court erred in either regard, such error would not have been of the
magnitude to justify a new trial.
Summary
A reasonable jury could accept as valid the theory offered by Rich that the
school administration was motivated by age discrimination animus and reach
the ultimate fact that the District intentionally discriminated against
Rich. We conclude that the substantial evidence supports the jury's
verdict.
Cross-appeal of dismissal of claim for disability discrimination
When reviewing an order granting summary judgment, we engage in the same
inquiry as the trial court.34 On cross-appeal, Rich argues that the trial
court erred by dismissing her disability discrimination claim on summary
judgment. She alleged that the District failed to accommodate her stress-
related disabilities. The court dismissed the claim.
In Washington, to establish a prima facie case of failure to reasonably
accommodate a disability, a plaintiff must show that she has a sensory,
mental, or physical abnormality that substantially limited her ability to
perform the job.35 The only Washington case that addresses the issue of
work-related stress is Snyder v. Medical Service Corporation of Eastern
Washington.36 In Snyder, the court questioned, in dicta, whether Snyder,
who complained of work-related anxiety, truly suffered from a handicap
within the WLAD.37 The court cited three federal cases that held that
stress suffered because of co-workers or supervisors did not qualify as a
disability.38 Our courts may look to the federal courts for guidance
because Washington's disability discrimination law parallels federal law.39
Following the federal cases, we hold that stress from participation in the
PAR program is not a disability under the WLAD. Stress associated with
supervisors, co-workers, and performance reviews is common in the workplace
and should not be considered an abnormality, as is required to qualify as a
disability under the WLAD. Thus, stress associated with participation in
the PAR program is not disabling within the meaning of the WLAD and we
affirm the trial court's order granting summary judgment on this issue.
Attorney fees
Although RCW 49.60.030(2) does not expressly provide for attorney fees on
review, the statute has been construed as authorizing such an award.40 We
award reasonable attorney fees to Rich, the prevailing party.
AFFIRMED.
WE CONCUR:
1 Guijosa v. Wal-Mart Stores, Inc., 144 Wn.2d 907, 915, 32 P.3d 250 (2001).
2 Sing v. John L. Scott, Inc., 134 Wn.2d 24, 29, 948 P.2d 816 (1997).
3 Brown v. Superior Underwriters, 30 Wn. App. 303, 306, 632 P.2d 887
(1980).
4 Guijosa, 144 Wn.2d at 915.
5 Chen v. State, 86 Wn. App. 183, 189, 937 P.2d 612 (1997) (citing Grimwood
v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 362-64, 753 P.2d 517 (1988)).
6 Chen, 86 Wn. App. at 183 (citing Grimwood, 110 Wn.2d at 362-64).
7 110 Wn.2d 355, 753 P.2d 517 (1988).
8 Grimwood, 110 Wn.2d at 362.
9 Grimwood, 110 Wn.2d at 363 (citations omitted) (quoting Loeb v. Textron,
Inc., 600 F.2d 1003, 1016-17 (1st Cir. 1979)).
10 Grimwood, 110 Wn.2d at 363 (referring to an age discrimination case)
(citing Loeb, 600 F.2d at 1013).
11 Johnson v. DSHS, 80 Wn. App. 212, 227, 907 P.2d 1223 (1996).
12 147 Wn.2d 16, 50 P.3d 638 (2002).
13 Kilian, 147 Wn.2d at 26.
14 Kilian, 147 Wn.2d at 28-29.
15 Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 181, 23 P.3d 440 (2001).
16 Hill, 144 Wn.2d at 182 (quoting McDonnell Douglas Corp. v. Green, 411
U.S. 792, 804, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)).
17 Moore v. Smith, 89 Wn.2d 932, 942, 578 P.2d 26 (1978).
18 Kirk v. Washington State Univ., 109 Wn.2d 448, 459, 746 P.2d 285 (1987).
19 Lords v. N. Auto. Corp., 75 Wn. App. 589, 610, 881 P.2d 256 (1994),
overruled on other grounds by Mackay v. Acorn Custom Cabinetry, Inc., 127
Wn.2d 302, 898 P.2d 284 (1995).
20 Lords, 75 Wn. App. at 610 (citing Burnside v. Simpson Paper Co., 66 Wn.
App. 510, 521, 832 P.2d 537 (1992), aff'd, 123 Wn.2d 93, 864 P.2d 937
(1994)).
21 Sellsted v. Washington Mut. Sav. Bank, 69 Wn. App. 852, 860, 851 P.2d 716
(1993), overruled on other grounds by Mackay v. Acorn Custom Cabinetry,
Inc., 127 Wn.2d 302, 898 P.2d 284 (1995).
22 Idahosa v. King County, 113 Wn. App. 930, 937, 55 P.3d 657 (2002) rev.
denied, 149 Wn.2d 1011 (2003) (citing Woodhead v. Disc. Waterbeds, Inc., 78
Wn. App. 125, 129, 896 P.2d 66 (1995)).
23 Douglas v. Freeman, 117 Wn.2d 242, 256, 814 P.2d 1160 (1991).
24 Douglas, 117 Wn.2d at 256-57.
25 Douglas, 117 Wn.2d at 257.
26 Carle v. McChord Credit Union, 65 Wn. App. 93, 106-07, 827 P.2d 1070
(1992).
27 411 U.S. 792, 802-04, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973).
28 Kastanis v. Educ. Employees Credit Union, 122 Wn.2d 483, 490, 859 P.2d
26, 865 P.2d 507 (1993).
29 Kastanis, 122 Wn.2d at 491.
30 Kastanis, 122 Wn.2d at 491.
31 Kastanis, 122 Wn.2d at 492.
32 137 Wn.2d 357, 971 P.2d 45 (1999).
33 Martini, 137 Wn.2d at 364-72 (where after a thorough analysis of
Washington's law against discrimination (WLAD) (Ch. 49.60 RCW) and the case
law, our Supreme Court concluded that the WLAD permits recovery of front
and back pay without proof of discharge or constructive discharge).
34 Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 48, 914 P.2d 728
(1996); Kahn v. Salerno, 90 Wn. App. 110, 117, 951 P.2d 321 (1998).
35 Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 192-93, 23 P.3d 440 (2001).
36 98 Wn. App. 315, 988 P.2d 1023 (1999) aff'd, 145 Wn.2d 233, 35 P.3d 1158
(2001).
37 Snyder, 98 Wn. App. at 326 n.1.
38 Snyder, 98 Wn. App. at 326 n.1 (citing Gaul v. Lucent Tech., Inc., 134
F.3d 576, 580 n. 3 (3d Cir.1998); Siemon v. AT&T Corp., 117 F.3d 1173, 1176
(10th Cir.1997); Weiler v. Household Fin. Corp., 101 F.3d 519, 524-25 (7th
Cir.1996)).
39 Goodman v. Boeing Co., 75 Wn. App. 60, 77, 877 P.2d 703 (1994), aff'd,
127 Wn.2d 401, 899 P.2d 1265 (1995).
40 Xieng v. Peoples Nat'l Bank of Washington, 120 Wn.2d 512, 533, 844 P.2d
389 (1993) (citing Allison v. Hous. Auth. of Seattle, 118 Wn.2d 79, 98, 821
P.2d 34 (1991)).