                                                    COURT OF APPEALS MY i
                                                     STATE OF WASKINGI"

                                                     2018 MY tL hti 10: 28




       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON



 MARIA LUISA JOHNSON;                                No. 76065-3-1
 CARMELIA DAVIS-RAINES;
 CHERYL MUSKELLY; PAULINE                            DIVISION ONE
 ROBINSON; ELAINE SEAY-DAVIS;
 TONI WILLIAMSON; and LYNDA
 JONES,

                      Appellants,

               V.

 SEATTLE PUBLIC UTILITIES, a                         UNPUBLISHED
 department of the city of Seattle, a
 municipality,                                       FILED: May 14, 2018

                      Defendant.



       Cox, J. — Maria Luisa Johnson and others commenced this action

following disciplinary action against them by Seattle Public Utilities(SPU)for

violation of the City of Seattle's Ethics Code. The case went to trial, ending in a

defense verdict. On appeal, Johnson and others challenge a series of

discretionary decisions by the trial court. But they fail to show any abuse of

discretion. Moreover, they fail in their burden to show that the trial court violated

the constitutional provision barring comment on the evidence. We affirm.
No. 76065-3-1/2

      Johnson, Carmelia Davis-Raines, Cheryl Muskelly, Pauline Robinson,

Elaine Seay-Davis, Toni Williamson, and Lynda Jones (collectively, "Johnson")

were employed by SPU as Utility Account Representatives(UARs). They

worked in SPU's contact center, responding to Seattle City Light(SCL)and SPU

customer requests for assistance or information regarding their bills and services.

In that capacity, they had access to a database that SCL and SPU used to bill

and store customer financial information. This access allowed them to waive

fees, adjust account balances, and make payment arrangements for customers.

       UARs are subject to the Seattle Ethics Code. Under that code, City

employees may not "[p]articipate in a matter in which" the employee or an

immediate family member has a financial interest.' They may not perform official

duties when it could appear that their judgment is impaired due to personal or

business relationships, without disclosure.2 They may not use their jobs for

purposes that are, or appear to be, primarily for personal benefit.3 SPU's.policy

manual accordingly directed UARs to request a supervisor to provide

maintenance for their own accounts or those of family or friends.

       SPU discovered that certain employees had made transactions on their

own utility accounts, and investigated the issue further. Guillemette Regan,

SPU's Director of Risk and Quality Assurance, led the investigation. After

investigating 217 SPU employees, she concluded that 77 had obtained access to


       1 SMC 4.16.070(A)(1).

       2 SMC 4.16.070(A)(3).

       3 SMC 4.16.070(6)(1).

                                            2
No. 76065-3-1/3

their own accounts or those of friends or family. Regan submitted investigation

reports to SPU's Deputy Director of Customer Service, Susan Sanchez, who

made disciplinary recommendations to SPU Director Ray Hoffman. Hoffman

decided to terminate 10 employees and suspend 18.

      Employees raised concerns during the investigation about its possible

disproportionate impact on African-American employees. Several African-

American employees signed a Petition of Solidarity to express their concern.

      The record shows that Maria Luisa Johnson individually made 21 financial

transactions on her own account. Williamson made 66. Muskelly made 24.

Davis-Raines made 3. Jones made 1. Seay-Davis made 9.

      SPU terminated Maria Luisa Johnson and Williamson. SPU would have

terminated Muskelly but for his retirement. Davis-Raines and Jones were

suspended for one day. Seay-Davis would have been suspended but retired.

      The claims initially at issue in this lawsuit were disparate impact, race and

age disparate treatment, and retaliation against those who signed the Petition of

Solidarity. They dismissed the disparate impact claim pretrial. The parties do

not appear to dispute that four of the plaintiffs are African-American and one is

Filipino. The jury returned a defense verdict at trial.

       This appeal followed.

                          JURY VENIRE COMPOSITION

       Johnson argues that the trial court abused its discretion by declining to

reconstitute the venire from which the jury was drawn. We hold that there was

no abuse of discretion in this respect.


                                              3
No. 76065-3-1/4

       "It is the policy of this state that all persons selected for jury service be

selected at random from a fair cross section of the population of the area served

by the court." This policy, codified at RCW 2.36.080,"mandate[s]that the

members of a jury panel be randomly selected."5 And the Sixth and Fourteenth

Amendments of the federal constitution similarly entitle litigants to a "petit jury

selected from a fair cross section of the community."6

       The right to a jury selected from a fair cross section of the local population

does not entitle the litigant to any specific jury composition.7 Nor is a litigant

entitled to an exact cross section of the population.5 Thus, the absence of

selected jurors of any particular race does not violate this right and "is not

sufficient of itself to establish racial prejudice."9

       Because the jury panel must be randomly selected, challenges to the

composition of the entire panel are limited. CrR 6.4(a) requires trial courts to

only sustain such challenges made "for a material departure from the procedures

prescribed by law for their selection." Without reference to CrR 6.4(a), the

supreme court has held that "[w]here the selection process is in substantial




       4 RCW     2.36.080(1).

       5   Brady v. Fibreboard Corp., 71 Wn. App. 280, 282, 857 P.2d 1094 (1993).

       6   Duren v. Missouri, 439 U.S. 357, 359, 99 S. Ct. 664, 58 L. Ed. 2d 579
(1979).

       7 State   v. Davis, 141 Wn.2d 798, 837, 10 P.3d 977(2000).

       8 State   v. Hilliard, 89 Wn.2d 430, 442, 573 P.2d 22(1977).

       9   Davis, 141 Wn.2d at 837.

                                                 4
No. 76065-3-1/5

compliance with the statutes, the defendant must show prejudice. If there has

been a material departure from the statutes, prejudice will be presumed."1° And

a selection process, even if not unconstitutionally discriminatory, "is still invalid if

it systematically excludes a cognizable class of individuals."11

       We review for abuse of discretion challenges to the venire process.12

       Here, Johnson argues that the venire in this case does not reflect the

racial composition of King County. Johnson cites to counsel's declaration below

stating that only 2 percent of the 100 person venire in this case were Black or

African American. Notably;there is no claim that there was a failure to randomly

select the members of the venire.

       After screening for hardships, the venire was reduced to 38 potential

jurors that Johnson's counsel described as overwhelmingly White. Of these,

eight identified as non-White. Counsel objected and proposed that the trial court

pick a new, more diverse, panel. The court declined to reconstitute the venire.

       The jury chosen included three jurors of color, who identified as

Vietnamese, Mexican American, and East Indian. No jurors of Johnson's racial

identities were chosen.

       Johnson fails to present any legal authority to support the proposition that

a venire is improper merely because it either fails to reflect a cross-section of the

local population, or because it fails to include jurors of a party's race. As the trial


       10 State   v. Timis:tale, 117 Wn.2d 595, 600, 817 P.2d 850 (1991).

       11   State v. Clark, 167 Wn. App. 667, 674, 274 P.3d 1058 (2012).
       12 Id.


                                               5
No. 76065-3-1/6

court correctly recognized,"unless there is evidence of deliberate exclusion from

jury pools there is nothing that I can do."

       Johnson failed below and fails on appeal to identify any deliberate

exclusion or material departure from proper selection procedures. Accordingly,

Johnson fails in the burden to show any abuse of discretion by the trial court in

declining to reconstitute the venire in this case.

       Johnson points to the lead opinion in State v. Saintcalle to support their

position in this case.13 That lead opinion is of little help here.

       Only two justices signed the lead opinion. Thus, this opinion has no

precedential effect on this case. The rest of the opinions reflect split views on

various aspects of that case. The justices' splintered views on the question then

before the court offer little help in addressing the issue in this case.

       More importantly, Saintcalle is not helpful in addressing the issue here:

constitution of the venire from which a jury is drawn. Rather, it concerned a

Batson v. Kennedy challenge to the use of peremptory strikes against the sole

African American member of a venire.14 That is not at issue here.

       Johnson argues extensively about the efforts made in society to attain

greater diversity in the jury process and contends that "[it is at last time for such

efforts to come to fruition." While this may be true, that does not mean that the


       13 178 Wn.2d34, 309 P.3d 326 (2013), abrogated by City of Seattle v.
Erickson, 188 Wn.2d 721, 398 P.3d 1124 (2017)).

       14Saintcalle, 178 Wn.2d at 35. We note that the state supreme court
recently promulgated a new rule, GR 37, to address peremptory challenges
implicating racial or ethnic bias. That rule does not apply to the issues in this
case.

                                               6
No. 76065-3-1/7

trial court's decision in this case was an abuse of discretion under governing

standards. That is the question before us, and Johnson fails in meeting the

burden of showing such abuse.

                                  TRIAL SCHEDULE

       Johnson next argues that the trial court abused its discretion by excusing

jurors who claimed financial hardship. Again, there is no showing of any abuse

of discretion.

        Under RCW 2.36.080(3), "[a] citizen shall not be excluded from jury

service in this state on account of. .. economic status." RCW 2.36.100 further •

restricts a trial court from excusing otherwise qualified jurors "except upon a

showing of undue hardship, extreme inconvenience, public necessity, or any

reason deemed sufficient by the court for a period of time the court deems

necessary." Thus, while a juror may be excused for financial hardship, he or she

may not be excluded because of his or her economic status. And a litigant has

"no right to be tried by a particular jury or a particular juror."15

       Johnson cites unhelpfully to the New Hampshire supreme court's opinion

in State v. Ayer.16 There, the court considered two statutes identical to RCW

2.36.080(3) and RCW 2.36.100, regarding exclusion for economic status and

excusal for financial hardship.17 The court explained that those excused for




       15   Clark, 167 Wn. App. at 673.

       16   150 N.H. 14, 31, 834 A.2d 277(2003).

       17   Id.

                                                7
No. 76065-3-1/8

financial status did not represent a recognized group with shared status.18 The

defendant, Daniel Ayer Sr., had identified that putative group as "jurors who

would suffer economic difficulty as a result of having to serve for multiple weeks

at the statutory rate of compensation."19 That group, he argued,"included people

who are self-employed, work on commission, or have a relatively low income."20

       Instead of showing those commonalities, the record revealed "that the only

thing this group shares in common is that they all raised a concern regarding the

economic impact to themselves or their families of serving on a jury for three

weeks."21 The court reasoned that a self-employed person or a person working

on commission might earn a substantial income,"the absence of which would

impose a hardship upon that individual's ability to maintain his or her standard of

living."22 The trial court had neither discerned the jurors' economic status when it

excused them nor relied on that basis for the decision.23

       Here, the trial court excused numerous jurors for financial hardship. It

explained that a juror could face such hardship if she:

       work[ed]for... an employer that does not compensate you, that —
       and missing that money would mean that you couldn't pay your
       primary bills. Your rent. Your utilities. Your food. That's a



       18   Id. at 32.

       19   Id. (internal quotations omitted).
       20   Id.

       21   Id.

       22   Id.

       23 Id.


                                                 8
No. 76065-3-1/9

       hardship. Having less money at the end of the month for, you
       know, discretionary spending, not a hardship.[241

       Excusel on this basis is permitted under RCW 2.36.100. It does not

offend any authorities of which we are aware. Daily wage earners were not

systemically excluded from the venire, but rather excused on the individualized

basis of financial hardship. Johnson fails to show on this record that those

excused were excused on an improper basis.

       Yet Johnson argues that the trial court should have remedied the

problems presented by the jury compensation scheme. This argument goes to

policy and is best resolved by the legislature.25 Again, this fails to show any

abuse of discretion by the trial court, the issue properly before us.

       Johnson further contends in this argument that the trial court could have

adopted the alternative trial schedule that they proposed, moving that trial be

held for two days a week. While the court could have decided to do so, the

choice not to is far from an abuse of discretion, given other competing

considerations facing the court. Johnson utterly fails to present any authority that

denial of this proposed schedule was an abuse of discretion. As the trial court

correctly reasoned,"that mechanism, although that is appealing, would end up

excluding all sorts of other people, who can't take off two months working two

days a week, childcare issues, all kinds of other things."26



       24   Report of Proceedings (August 15, 2016, K. Girgus) at 43.

       25   In re the Det. of J.N., 200 Wn. App. 279, 284, 402 P.3d 380(2017).

       26   Report of Proceedings (August 15, 2016, D. Rawlins) at 4-5.

                                             9
No. 76065-3-1/10

                              EXCUSAL OF JURORS

       Johnson argues that the trial court abused its discretion by dismissing

three jurors for cause. The record does not support this challenge.

       A litigant may challenge a juror for cause when the juror expresses actual

bias.27 ROW 4.44.170 defines actual bias as "a state of mind on the part of the

juror in reference to the action, or to either party, which satisfies the court that the

challenged person cannot try the issue impartially and without prejudice to the

substantial rights of the party challenging." That a juror has expressed "such

opinion shall not of itself be sufficient to sustain the challenge, but the court must

be satisfied, from all the circumstances, that the juror cannot disregard such

opinion and try the issue impartially."28 The trial court may determine whether a

litigant has successfully rehabilitated a juror that expresses actual bias.29

       We review for abuse of discretion a trial court's decision on excusing

jurors for cause.3° This standard recognizes that the trial court is in the unique

position to assess potential jurors'"tone of voice, facial expressions, body




       27   ROW 4.44.190.

       28   Id.

       28 State   v. Witherspoon, 82 Wn. App. 634,638, 919 P.2d 99(1996).

       3° Id.

                                              10
No. 76065-3-1/11

language, or other forms of nonverbal communication."31 We simply cannot and

should not make those assessments as an appellate court.32

       Here, Johnson argues that the trial court abused its discretion in

dismissing jurors 8, 11, and 53.

       Juror number 11 stated in voir dire that the fact that Johnson had

commenced this action led them "to favoring for the plaintiffs to start off."33 When

Johnson's counsel attempted to rehabilitate, the juror explained that while they

would strive to be impartial, they had "a bias from my past history of knowing

individuals who work for the City of Seattle and some other Seattle City Light in

the past. There is built up animosity, if you will, that is there."34

       Juror number 8 stated that the defense would have "a really tough road to

break down all of these stories of these people that I feel so strongly in their

experiences."35 The juror later repeated these concerns following Johnson's

counsel's attempt at rehabilitation, stating "that the plaintiffs' side would want me

on this jury, that the defense would have a very tough time. They have a tough




      31 State v. Lawler, 194 Wn. App. 275, 287, 374 P.3d 278, review denied,
186 Wn.2d 1020(2016).

       32   Id.

       33   Report of Proceedings (August 16, 2016, D. Rawlins) at 107.

       34   Id. at 125.
       35   Id. at 107.

                                               11
No. 76065-3-1/12

road."38 They explained that it would be "really hard to put aside" personal

experiences and those of close friends with racial injustice.37

       Defense counsel further asked this juror whether "if you were in my

position and trying to pick a jury that was fair and unbalanced [sic], would you

have any concerns about you sitting on this jury?"38 Juror number 8 answered

affirmatively.38

       Juror number 53 initially stated that SPU was "going to have to prove" that

plaintiffs' claims were insufficient.40 After the trial court explained that the burden

of proof properly lay on the plaintiffs, Juror number 53 explained that while they

"agree[d] with everything that the judge said," they nonetheless maintained a

"predisposition on my part that I am going to be empathetic with what I see as the

victim in this case. It is just a knee-jerk reaction."41 They understood the

instruction on burden of proof to mean "that both sides equally need to prove

their case."42 This juror answered equivocally when asked whether they could

put aside their bias and explained that "it would be a twist ending" if they found




       36   Id. at 124.

       37 Id.

       38   Id. at 123.

       39 Id.

       40 Id. at 109.

       41   Id. at 112.

       42   Id. at 128.

                                              12
No. 76065-3-1/13

for the defense.43 They explained that they "would be surprised with if [sic] my

mind was changed."44

       The trial court did not abuse its discretion by dismissing these three jurors

for cause. All three expressed actual bias towards supporting Johnson's

position. The trial court asked defense counsel to justify the challenges made

and allowed Johnson's counsel to attempt to rehabilitate. Based on the answers

provided, and the circumstances and nonverbal communication that this court

cannot assess, the trial court granted defense counsel's challenges. It

determined that the attempted rehabilitation had been unsuccessful. We have no

reason to second guess the trial judge in making these determinations, all of

which seem amply supported by this record.

       Johnson contends that the trial court dismissed these jurors on an

improper "if you were in my spot" basis. This argument has no merit.

       Defense counsel asked these three dismissed jurors whether they would

choose such jurors if they were arguing for the defense. Such a question did not

establish a novel basis for dismissal of jurors. It merely sought to discern

whether the jurors held an actual bias against the defense.

                     DR. ANTHONY GREENWALD'S TESTIMONY

       Johnson argues that the trial court abused its discretion by excluding Dr.

Greenwald's testimony on implicit bias. There was no abuse of discretion in

rejecting this proposed expert testimony.


       43 Id. at   127.
       44   Id.

                                            13
No. 76065-3-1/14

       ER 702 requires a trial court to determine whether an expert's otherwise

qualified testimony would be helpful to the trier of fact. Washington courts have

provided extensive guidance on what renders expert testimony helpful. An

expert's testimony is helpful if it assists the jury in "understanding matters outside

the competence of ordinary lay persons?" And the court gauges the extent of

that helpfulness on what the parties bear the burden of proving or disproving in a

particular claim." Further, the expert must also "ground his or her opinions on

facts in the record."47 When testimony may be "somewhat speculative... the

court should keep in mind the danger that the jury may be overly impressed with

  witness possessing the aura of an expert?"

       The trial court has wide discretion in deciding whether expert testimony is

helpful." "This court will not disturb the trial court's ruling '[i]f the reasons for

admitting or excluding the opinion evidence are both fairly debatable.'"5°




       45 Anderson    v. Akzo Nobel Coatings, Inc., 172 Wn.2d 593, 600, 260 P.3d
857(2011).

       46 See    Colley v. Peacehealth, 177 Wn. App. 717, 728-29, 312 P.3d 989
(2013).

       47 Volk   v. DeMeerleer, 187 Wn.2d 241, 277, 386 P.3d 254(2016).

       48Davidson v. Mun. of Metro. Seattle, 43 Wn. App. 569, 571-72, 719 P.2d
569 (1986).
       49 Stedman    v. Cooper, 172 Wn. App. 9, 18, 292 P.3d 764(2012).

       69  Moore v. Hamm, 158 Wn. App. 137, 155, 241 P.3d 787(2010)(quoting
Miller v. Likins, 109 Wn. App. 140, 147, 34 P.3d 835 (2001)).

                                               14
No. 76065-3-1/15

      Additionally, the trial court has discretion to exclude evidence "if its

probative value is substantially outweighed by the danger of" confusing or

misleading the jury.51

       Here, Dr. Greenwald is a well-respected and widely published scholar of

social psychology, cognitive psychology, and research methodology. He is a

tenured faculty member in the University of Washington's psychology

department. Johnson retained him to "provide expert witness testimony

concerning psychological understanding of implicit bias."52

       Implicit bias is "a class of mental processes that function outside of

conscious awareness."53 This concept has superseded earlier academic

understandings that people are guided solely by their explicit and conscious

intentions.

       To study this phenomenon, Dr. Greenwald developed a research method

called the Implicit Association Test (IAT). Subjects have taken the IAT in various

forms more than 17 million times. Its methodology and its results have received

positive peer review in the relevant field.

       Dr. Greenwald believed that his testimony would help the jury to "better

understand the evidence as it relates to discriminatory intent, to counteract

common misconceptions concerning the character of discriminatory intent, and to




       51   ER 403.

       52 Clerk's   Papers at 318.

       53 Id. at 320.


                                              15
No. 76065-3-1/16

determine whether Plaintiffs' racial status provided a basis for Defendants'

actions."54

       He intended to testify that implicit bias is pervasive and is "often observed

in more than 70% of Americans, most of whom genuinely and sincerely regard

themselves as lacking in biases," "is scientifically established as a source of

discriminatory judgment and decision making in personnel decisions," can

influence Idliscretion-affording personnel evaluations that permit subjectivity in

decision making,""operate[s] outside of(conscious) awareness," and

"contribut[es] to discriminatory outcomes" that favor the in group.55

       Dr. Greenwald expressed the belief that "these general principles and the

opinions related to them ... apply to the evaluation of the facts of this case."56

Notably, he failed to identify anything in the record beyond the complaint that

informed his knowledge of the facts of this case.

       The parties do not appear to dispute either that Dr. Greenwald is qualified

to offer this testimony or that it is based on reliable methods. The heart of the

dispute is whether the testimony pertained to the facts of this case.

       They identify three federal district court cases that examined the

admission or exclusion of Dr. Greenwald's testimony under the federal rules of

evidence in the context of employment discrimination actions. As this court has

stated, "[t]he broad standard of abuse of discretion means that courts can


       54   Id. at 322.

       55   Id. at 323-26.

       56   Id. at 335.

                                             16
No. 76065-3-1/17

reasonably reach different conclusions about whether, and to what extent, an

expert's testimony will be helpful to the jury in a particular case."57

       The first of these cases, Samaha v. Washington State Department of

Transportation, was decided by the United States District Court for the Eastern

District of Washington.58 In that case, Elias Samaha brought several claims

under federal civil rights statutes and under the Washington Law Against

Discrimination.58 He alleged that he suffered disparate treatment, particularly in

his performance evaluations, because of his Arab descent.66

       Pretrial, the Department of Transportation moved to exclude Dr.

Greenwald's testimony, arguing that Dr. Greenwald had neither applied his

theories of implicit bias to the facts nor opined whether implicit bias informed the

employment decisions at issue.61

       The court disagreed, explaining that "Mestimony that educates a jury on

the concepts of implicit bias and stereotypes is relevant to the issue of whether

an employer intentionally discriminated against an employee."62 The court held

that the testimony should not be excluded based on an Advisory Committee Note

to FRE 702. This note advises that expert testimony as to "general principles,



       57 Stedman, 172 Wn. App. at 18.

       58 2012 WL        11091843(E.D. Wash. Jan. 3, 2012).

       59 Id. at *1.

       69 Id.

       81   Id. at *2.

       62   Id. at *4.

                                              17
No. 76065-3-1/18

without ever attempting to apply these principles to the specific facts of the case"

may nonetheless help the factfinder.63 This appears to be a discretionary

reading of the federal rule, nothing more.

       Two years later, the United States District Court for the Northern District of

Illinois considered Dr. Greenwald's testimony in an employment discrimination

case, Jones v. National Council of Young Men's Christian Associations." It

rejected that testimony, reasoning that it could not reliably support an opinion that

the employer in that case, the National Council of the YMCA, was liable for

employment discrimination.65

       Considering the principle employed by the Samaha court, the Jones court

explained that "[e]ven opinions about general principles have to be logically

related to the factual context of a case to be admissible — those general

principles must still 'fit' the case."66 It noted the "substantial disconnect between

the abstract testing from which Dr. Greenwald's 'general principle' is derived and

the fact context of this case."67 It explained that Dr. Greenwald's methodology

tested the implicit bias of subjects against "virtual strangers in laboratory settings




       63 Id. (quoting   Fed. R. Evid. 702 advisory committee's note to the 2000
amendment).

       64 34   F. Supp. 3d 896 (N.D. III. 2014).

       65 Id. at 901.

       66 Id. at 900.

       67 Id. at 901.

                                              18
No. 76065-3-1/19

whom they will never meet or see again, with nothing at stake."68 The employers

in this case, by contrast "kn[e]w the people for whom they are making important

decisions concerning their pay, promotions, and performance evaluations."69

Under such circumstances, the testimony threatened to "blur, if not erase

altogether, the line between hypothetical possibility and concrete fact."73 As a

result, even if the general principles "fit" the facts of the case, FRE 403 would

support exclusion due to the risk of confusion to the jury.71

       More recently, the United States District Court for the Western District of

Pennsylvania considered Dr. Greenwald's testimony in Karlo v. Pittsburgh Glass

Works LLC.72 Again, the employer sought to exclude Dr. Greenwald's testimony

as unrelated to the facts of the case.73 The court examined both Jones and

Samaha.74 It excluded the testimony, finding that Dr. Greenwald had not

examined the facts of the case.75 He had not spoken to anyone associated with

the employer, visited its facilities, or "perform[ed] any independent, objective

analysis on whether implicit biases played any role in the decisions to terminate


       68   Id. at 900.

       69 Id.


       7° Id. at 901.

       71   Id.

       72 2015 WL 4232600(W.D. Pa. Jul. 13, 2015) vacated        by 849 F.3d 61 (3rd
Cir. 2017).

       73 Id. at *1.

       74   Id. at *6-7.
       75   Id. at *7.

                                             19
No. 76065-3-1/20

the remaining Plaintiffs."76 Because of this, and because the court held that

implicit bias may not be relevant to a cause of action requiring a showing of

intentional discrimination, the court excluded Dr. Greenwald's testimony.77

       Dr. Greenwald's testimony in this case was analogous to that in Samaha,

Jones, and Karlo. SPU raises similar concerns to those raised by the employers

in those cases, albeit in the context of Washington's ER 702 and ER 403 rather

than the federal counterparts. Federal courts are split on whether Dr.

Greenwald's theories of implicit bias are relevant to claims such as those in this

case that require a showing on discriminatory intent. And the superior court in

this action was not bound to follow those federal courts. Rather, the court was

free to apply ER 702 and ER 403, as it did. In doing so, we note that Johnson

admitted in their motions in limine that "Dr. Greenwald will not state an opinion on

the specifics of this case."79

       The trial court properly recognized the important policy concerns

presented by the concept of implicit bias. But it also properly concluded that Dr.

Greenwald's testimony consisted only of "generalized opinions that are not tied to

the specific facts of this case."79 On this basis, it held that admission of the




       76   Id.

       77   Id. at *9(emphasis added).

       78   Clerk's Papers at 127.

       79   Report of Proceedings (August 5, 2016) at 5-6.

                                             20
No. 76065-3-1/21

testimony "would be confusing and misleading for the jury."8° This was a

perfectly permissible basis on which to exclude the testimony.

                       KATHLEEN JEZIERSKI'S TESTIMONY

       Johnson argues that the trial court abused its discretion by permitting

Jezierski to testify despite SPU's disclosure violation. We disagree.

       CR 26(b)(5) entitles a party to Id]iscovery of facts known and opinions

held by experts" to the extent otherwise discoverable. King County LCR 26(k)

implements this rule by requiring parties to "no later than the date for disclosure

designated in the Case Schedule, disclose all" expert witnesses whom the party

might call. Disclosure of expert witnesses must include "[a] summary of the

expert's opinions and the basis therefore and a brief description of the expert's

qualifications."81 Parties must also, as appropriate, supplement their responses

with the identity of experts expected to testify, "the subject matter on which the

expert witness is expected to testify, and the substance of the expert witness's

testimony."82

       The trial court has discretion to impose sanctions for failure to comply with

this rule.83 Exclusion of the expert's testimony is one possible sanction if the




       80 Id. at 6.

       81   LCR 26(k)(3)(C).

       82 CR    26(e)(1)(B).

       83 Johnson     v. Mermis, 91 Wn. App. 127, 133, 955 P.2d 826 (1998).

                                             21
No. 76065-3-1/22

proponent of the testimony engaged in willful intentional nondisclosure, willful

violation of a court order, or other unconscionable conduct."

       This court reviews for abuse of discretion a ruling on the imposition of

sanctions 85

       Here, the case schedule mandated disclosure of possible primary

witnesses by February 2, 2016, and possible additional witnesses by March 21,

2016. Discovery cut off was set at May 23, 2016. On the cutoff date, SPU filed

and served a disclosure of witnesses listing as an expert, "[a]n individual from

COPC, Inc.[who] will provide expert testimony regarding call center standards

and expectations."86

       At trial on September 6, 2016, Johnson objected to Jezierski's testimony

unless first being permitted to depose her the night before SPU expected to call

her. They alleged that SPU had violated CR 26 and LCR 26.

      SPU responded by referencing its May 23 disclosure. It explained that it

intended to call Jezierski only as a rebuttal witness whom Johnson could have

deposed in the months since the disclosure.

       The trial court ruled that Johnson had three months since the disclosure,

during which time Jezierski could have been deposed. It held that the disclosure

had been sufficient.



       84   Mayer v. Sto Industries, Inc., 156 Wn.2d 677, 687-88, 132 P.3d 115
(2006).
       85   Mermis, 91 Wn. App. at 133.

       86   Clerk's Papers at 5824.

                                            22
No. 76065-3-1/23

      The trial court did not abuse its discretion in permitting Jezierski to testify

without a last minute deposition. Johnson has not provided authority establishing

any such abuse.

      Johnson cites in rebuttal to Magana v. Hyundai Motor America.87 But that

case does not help.

      There, Jesse Magana brought a products liability action against Hyundai

after suffering severe personal injury allegedly caused by a seat back failure.88

Pretrial, Magana requested production of documents indicating any such failures

since 1980.89 Hyundai provided incomplete responses, characterizing the

specific requests as overly broad.9° But Magana still prevailed at tria1.91 Hyundai

appealed.92 For reasons not relevant here, the case was remanded for retria1.93

       Before retrial commenced, Magana made further requests for

production.94 Hyundai responded that several of these requests were over



                                         ,


       87 167 Wn.2d       570, 220 P.3d 191 (2009).

       88   Id. at 577-78.

       89   Id. at 577.

       99   Id.

       91   Id. at 578.
       92   id.

       93   Id.

       94   Id. at 579.

                                              23
No. 76065-3-1/24

burdensome.95 It did not provide complete responsive discovery.96

       Based on the insufficiency of discovery, Magana moved for a default

judgment.97 The trial court granted that motion, finding that Hyundai willfully

violated CR 26, substantially prejudicing Magana, and that a lesser sanction

would not do.95 This court reversed the imposition of the default judgment but

the supreme court reinstated it, holding that "[t]he Court of Appeals substituted its

own discretion for the trial court's."99 It was not the province of an appellate court

to reverse the trial court's discretionary imposition of sanctions for a CR 26

violation so long as based on sufficient findings.100

       This case stands for the proposition that the trial court has discretion to

impose sanctions for violations of CR 26, so long as it complies with certain

procedures not relevant here. In no way does Magana mandate the imposition of

sanctions for any violations in this case.

       One exception to this general rule applies to certain violations of CR 26(g).

Sanctions for such violations are mandatory.101 Johnson cites for this proposition




       95   id.

       86   Id.

       97   Id. at 580.

       98   Id. at 582.

       99 Id. at 590.

       100   Id.

        Wash. State Physicians Ins. Exchange & Ass'n v. Fisons Corp., 122
       101
Wn.2d 299, 355, 858 P.2d 1054 (1993).

                                             24
No. 76065-3-1/25

to Washington State Physicians Ins. Exchange & Association v. Fisons

Corporation.102 But Johnson cites no comparable authority for the proposition

that violations of CR 26(b), CR 26(e), or LCR 26(k) trigger mandatory

penalties.103 Nor is there any reasoned argument why the precedent set forth in

Fisons should be extended beyond the rule relevant in that case. The claimed

violation of CR 26(g) in the reply brief is too late to warrant this court's

consideration.104

       Johnson contends that they requested production of the resumes and

reports of experts expected to testify. And they further contend that SPU

declined to provide these documents. But they cite for this purpose to SPU's

fourth response to requests for production dated September 30, 2015. Such a

document, served several months before the cutoff dates noted above, is not

relevant to compliance with those dates. Although SPU appears not to have

supplemented this response, it identified Jezierski in the witness disclosure list.

       Johnson summarily argues that Jezierski's testimony was inadmissible

under ER 402, 403, 701, and the Frye v. United States test.105 They allege that

Jezierski relied on "junk science," that she had never testified as an expert



       102 122 Wn.2d 299, 355, 858 P.2d 1054 (1993).

     103 See Darkenwald v. Emp't Sec. Dep't, 183 Wn.2d 237, 248, 350 P.3d
647(2015); RAP 10.3(a)(6).

      104 RAP 10.3(c); Basin Paving Co. v. Contractors Bonding and Ins. Co.,
123 Wn. App. 410, 415, 98 P.3d 109 (2004).
       105 Brief of Appellants at 49-50 (citing Frye v. United States, 293 F. 1013
(D.C. Cir. 1923)).

                                              25
No. 76065-3-1/26

before, and that she drew her opinions from a company database. This court

does not address arguments so cursorily presented.106

                             COMMENT ON EVIDENCE

       Johnson argues that the trial court unconstitutionally commented on a

matter of fact. Because this argument was not preserved below and does not

qualify for any exception for review, we disagree.

       Under RAP 2.5(a)(3), a party may raise, for the first time on appeal, a

manifest error affecting a constitutional right.107 The party "must identify the

constitutional error and show that it actually affected his or her rights at trial" in

order to claim a manifest error affecting a constitutional right.108 This requires

that the party "make a plausible showing that the error resulted in actual

prejudice, which means that the claimed error had practical and identifiable

consequences in the trial."109

       Article IV, section 16 of the Washington constitution provides that "Judges

shall not charge juries with respect to matters of fact, nor comment thereon, but

shall declare the law." "A statement by the court constitutes a comment on the

evidence if the court's attitude toward the merits of the case or the court's
                                                                          )1110
evaluation relative to the disputed issue is inferable from the statement.


       106 Bercier v. Kiga, 127 Wn. App. 809, 824, 103 P.3d 232(2004).

       107 See State v. Lamar, 180 Wn.2d 576, 582, 327 P.3d 46 (2014).
       108   Id. at 583.

       109   Id.
       110 State v. Lane, 125 Wn.2d 825, 838, 889 P.2d 929 (1995).

                                               26
No. 76065-3-1/27

       Here, Johnson relies on this state constitutional provision to argue that the

trial court committed reversible error. But the question is whether the record

shows that any such error was "manifest." We conclude that it does not.

       Unnamed individuals outside the courthouse distributed a pamphlet

entitled "A Jury of Peers" that discussed jury nullification in relation to racial

disproportionalities in the criminal justice system and incarceration. At least two

potential jurors on the venire in this case received this pamphlet.

       The trial court addressed this matter with counsel before summoning the

venire. It described the pamphlet to counsel as neither attorney had seen it.

While distinguishing this case from the criminal matters discussed in the

pamphlet, the trial court suggested that potential jurors "may want to discuss

these issues" with counsel during voir dire.

       The trial court made similar remarks shortly after to the venire. It

acknowledged to potential jurors that similar issues of racial disproportionality

were "very much in the forefront in the media." Because the case involved

employment discrimination, the trial court recognized that such issues may or

may not appear relevant to the potential jurors. It explained that while such

issues might not appear relevant to some potential jurors, they should "feel free

to discuss it with the attorneys."

       Johnson fails on this record to demonstrate that these remarks violated

the constitutional prohibition in any way. The remarks did not show the court's

view of the evidence nor otherwise offended the state constitution. The claimed

error is not manifest. Accordingly, we do not further address this claim.


                                               27
No. 76065-3-1/28

                                         ER 1006

         Johnson argues that the trial court abused its discretion by admitting

exhibits 497,498, 499, 501, and 502. We again disagree.

         ER 1006 provides:

              The contents of voluminous writings, recordings, or
       photographs which cannot conveniently be examined in court may
       be presented in the form of a chart, summary, or calculation. The
       originals, or duplicates, shall be made available for examination or
       copying, or both, by other parties at reasonable time and place.
       The court may order that they be produced in court.

       The documents underlying such summaries must themselves be

admissible.111 But the inaccuracy of a summary under ER 1006 goes to weight,

not admissibility.112 An ER 1006 summary remains admissible even though a

small portion is not supported by documentation when opposing counsel had the

opportunity to cross-examine the authenticating witness.113

       This court reviews for abuse of discretion the admission of a summary

chart under ER 1006.114 And it will only reverse due to evidentiary error if "it is

reasonable to conclude that the trial outcome would have been materially

affected had the error not occurred."115




         111   State v. Marshall, 25 Wn. App. 240, 243,606 P.2d 278 (1980).

         112 See   BD ex rel. Jean Doe v. DeBuono, 193 F.R.D. 117, 130(S.D.N.Y.
2000).

         113 224 Westlake, LLC    v. Engstrom Properties, LLC, 169 Wn. App. 700,
732, 281 P.3d 693(2012).

         114 State   v. Barnes, 85 Wn. App. 638, 658, 932 P.2d 669(1997).

         115   Lutz Tile, Inc. v. Krech, 136 Wn. App. 899, 905, 151 P.3d 219 (2007).

                                               28
No. 76065-3-1/29

       At the threshold, Johnson fails to provide reasoned argument regarding

the inadmissibility of exhibits 499 and 502. They further clarify in their reply brief

that the reference to exhibit 499 was accidental. We deem the challenges to

these two exhibits abandoned.116

       Regarding exhibit 497, Johnson argues that the information for Tanisha

Wagner is inaccurate. The exhibit indicates that she was suspended for 30 days

in lieu of termination. Johnson argues that this is inaccurate because it fails to

indicate that Wagner received the alternative discipline of suspension in

exchange for entering a last chance agreement. But this does not render

inaccurate the facts presented in the summary. To the extent it qualifies or

complicates the facts presented, this goes to the summary's weight, not

admissibility.

       Regarding exhibit 498, Johnson brings two challenges. First, they argue

that this short exhibit was not based on voluminous records. Second, they argue

that the activity summary for Michael Mannery is inaccurate. That summary

includes the line "Adj., svc orders, and notes on dad's acct." Johnson contends

that this omits facts in the supporting documentation regarding seven service

orders Mannery made on his father's account, and that Manner made a

transaction that violated SPU Policy CS-106. These challenges lack merit.

       Johnson fails to cite authority indicating some threshold of

voluminousness the trial court must find to not abuse its discretion. The exhibit



       116 See   Holder v. City of Vancouver, 136 Wn. App. 104, 107, 147 P.3d 641
(2006).

                                             29
No. 76065-3-1/30

does indicate service orders on Mannery's account. And Johnson fails to show

how omission of an additional policy violation demonstrates an inaccuracy or

prejudiced the result at trial.

       Regarding exhibit 501, Johnson argues that admissible evidence did not

support the summary of activity on Arece Hampton's account. That summary

read "1. No trans on own acct; 2. Rreviewed [sic] trans related to shut off." The

trial court reviewed Johnson's identical challenge below to the claim that no

transactions were found on Hampton's own account and reasoned that it would

require SPU to "prov[e] a negative." Because this would not be possible, the trial

court ruled that the exhibit was admissible. As to the language about reviewing

transactions related to shut off, Johnson fails to explain how such a minor

omission of documentation would render the exhibit inadmissible or cause him

prejudice. Nor do they explain their failure to challenge the authenticating

witnesses on cross-examination.

                                  JURY INSTRUCTIONS

       Johnson argues that the trial court abused its discretion by not giving

proposed instructions numbers 3,4, and 13. We hold that the rejection of these

proposed instructions was proper.

       "Jury instructions are sufficient when they allow parties to argue their

theory of the case, are not misleading, and, when taken as a whole, inform the




                                            30
No. 76065-3-1/31

jury of the applicable law."117 A trial court need not give a party's proposed

instruction, even if accurate, if the instructions are otherwise sufficient.118

       The party challenging the refusal to provide an instruction must also show

prejudice.118 The failure to give a proposed instruction is not prejudicial where

the verdict would not have changed.12°

       This court reviews for abuse of discretion a trial court's ruling on jury

instructions.121

                               Implicit Bias Instructions

       Johnson argues that the trial court abused its discretion by not giving

proposed instructions numbers 3 and 4 concerning implicit bias.

       Proposed instruction no. 3 is over a page long. In summary, it explains to

the jury that people hold automatic and biased assumptions. It references the

work of social scientists in the field of implicit bias. On this basis, it urges jurors

to reflect on their possible implicit bias, taking the time and exercising the focus

to reach an objective result. It encourages jurors to imagine the parties "looked

different" or "belonged to a different group." It asks jurors to consult with other

jurors "who may have different backgrounds."



       117   Farah v. Hertz Transp., Inc., 196 Wn. App. 171, 177, 383 P.3d 552
(2016).
       118   Id.

       119 Terrell   v. Hamilton, 190 Wn. App. 489, 499, 358 P.3d 453(2015).
       120   Id.

       121   Farah, 196 Wn. App. at 177.

                                              31
No. 76065-3-1/32

       Proposed instruction no. 4 reads:

              As we discussed in jury selection, growing scientific research
       indicates each one of us has 'implicit biases,' or hidden feelings,
       perceptions, fearsbi and stereotypes in our subconscious. These
       hidden thoughts often impact how we remember what we see and
       hear, and how we make important decisions. While it is difficult to
       control one's subconscious thoughts, being aware of these hidden
       biases can help counteract them. As a result, I ask you to
       recognize that all of us may be affected by implicit biases in the
       decisions that we make. Because you are making very important
       decisions in this case, I strongly encourage you to critically evaluate
       the evidence and resist any urge to reach a verdict influenced by
       stereotypes, generalizations, or implicit biases.(1221

       Several reasons support the trial court's refusal to give these instructions.

First, while the proposed instructions provide further neuroscientific elaboration,

they are similar in substance to language in instruction number 1, requiring jurors

to "reach your decision based on the facts proved to you and on the law given to

you, not on sympathy, bias, or personal preference."123 Johnson does not

explain why this instruction was insufficient.

       Second, these proposed instructions explicitly referenced neuroscientific

and social scientific evidence that was not adduced at trial. In their brief,

Johnson connects the content of these instructions to Dr. Greenwald's testimony.

Because the trial court excluded that testimony, it would mislead the jury to give

instructions that replicated it.




       122   Clerk's Papers at 711.
       123   Id. at 5588.

                                             32
No. 76065-3-1/33

       Additionally, Johnson fails to show that they were prejudiced by the trial

court's refusal to give these instructions, especially in light of instruction number

1.

                                 Pretext Instruction

       Johnson argues that the trial court abused its discretion by not giving

proposed instruction no. 13 concerning pretext.

       The challenged instruction reads:

              You may find that a plaintiffs age and/or race was a
       substantial factor in the defendant's decision to suspend, terminate,
       place on administrative leave, or threaten that plaintiff with
       suspension or termination if it has been proved that the defendants'
       stated reasons for either of the decisions are not the real reasons,
       but are a pretext to hide age and/or race discrimination.[124]

       This court previously examined this instruction in Farah v. Hertz

Transporting, Inc.128 In that case, Muslim airport "shuttlers" were terminated for

not punching out before prayer.128 They commenced an action for employment

discrimination and were represented by John Sheridan, Johnson's counsel

here.127 Sheridan proposed a pretext instruction substantively identical to

proposed instruction number 13.128




       124   Clerk's Papers at 720.

       125   196 Wn. App. 171, 383 P.3d 552(2016).

       126   Id. at 174.

       127 Id. at   173.

       128   Id. at 177.

                                             33
No. 76065-3-1/34

       This court held that this instruction accurately stated the law.129 But it

ultimately followed several federal appeals circuits that had held it was not

required.13° It determined that the arguments in its favor were not compelling

enough to hold that it is an abuse of discretion to refuse to give the instruction.131

The court's general instructions were sufficient for Farah to inform the jury of the

applicable law and allow Farah to argue his theory of the case.132

       Here, Johnson contends that this instruction was necessary "[Oven the

lack of diversity of the panel, the exclusion of implied bias evidence and jury

instructions, and the errors that followed." The pretext instruction, Johnson

contends,"would have helped the jury connect the dots to a discriminatory

motive."

       But this is not the standard. Johnson must demonstrate that the jury

instructions presented were insufficient to allow them to argue their case, or were

misleading or incomplete. They have not done so. Thus, as in Farah, it was not

necessary that the trial court give proposed instruction number 13, and the failure

to do so was not an abuse of discretion. Johnson does not show how the refusal

to give this instruction prejudiced the result.




       129   id.

       130 Id. at 179-80.

       131   Id. at 180.

       132   Id.

                                              34
No. 76065-3-1/35

       Johnson goes on to argue that this court should overrule Farah. This

court does not "overrule" the decisions of other panels. In any event, we do not

disagree with the decision in that case.

       Johnson also argues generally that the Washington Law Against

Discrimination is more protective than federal employment discrimination law.

While true, this adds nothing of substance to the arguments before us.

                                       NEW TRIAL

       Johnson argues that the trial court abused its discretion by denying their

motion for a new trial. We disagree.

       This court reviews for abuse of discretion a trial court's denial of a new

trial motion.133 "The test for determining such an abuse of discretion is whether

'such a feeling of prejudice [has] been engendered or located in the minds of the

jury as to prevent [the] litigant from having a fair trial.'"134

        Here, none of the alleged errors would have so prejudiced the jury as to

deny Johnson a fair trial.

                                   ATTORNEY FEES

       Johnson argues that this court should award them attorney fees if they

prevail under the Washington Law Against Discrimination, codified at RCW




       133Hickok-Knight v. Wal-Mart Stores, Inc., 170 Wn. App. 279, 324-25, 284
P.3d 749 (2012).

          Collins v. Clark County Fire Dist. No. 5, 155 Wn. App. 48, 81, 231 P.3d
        134
1211 (2010)(quoting Aluminum Co. of Am. v. Aetna Cas. & Sur. Co., 140 Wn.2d
517, 537, 998 P.2d 856 (2000)).

                                                35
No. 76065-3-1/36

49.60.030(2). Because they do not prevail, we deny the request for fees on

appeal.

      We affirm the judgment on the jury verdict and deny the request for

attorney fees on appeal.




WE CONCUR:




                                                ci    e,c(/ on
