       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STEVEN LODIS and DEBORAH
LODIS, a marital community,                          DIVISION ONE                   _.-,-




                      Appellants,                    No. 72342-1-1
                                                                                        c~>


                                                                                            C>
                 v.
                                                     PUBLISHED OPINION                      -^.
CORBIS HOLDINGS, INC., a                                                                      vo
Washington corporation; CORBIS                                                                   **-

                                                                                                 o"
CORPORATION, a Nevada corporation;
and GARY SHENK, an individual,

                      Respondents.                   FILED: December 28, 2015



       Dwyer, J. — Trials matter. The results of trials matter. The manner in

which a trial takes place, the evidence admitted, and the judicial rulings made all

matter. In this case, the plaintiff, Steven Lodis, being already unhappy with the

results of two separate jury trials arising from causes of action asserted in the

complaint herein, finds himself similarly disaffected by the result of the third jury

trial in this matter. In an effort to obtain yet a fourth jury trial in this cause, Lodis

seeks to recharacterize and redefine numerous discretionary rulings made by the

trial judge. As should be the case with all endeavors of this type, Lodis's entreaty

"now meets the implacable gaze of the appellate court."1 We affirm.




       1 Green v. Normandy Park Riviera Section Cmtv. Club, 137 Wn. App. 665, 680, 151 P.3d
1038 (2007).
No. 72342-1-1/2




        1. Lodis Sues Corbis; His Claims are Dismissed by the Trial Court or
Rejected by the First Jury; A Second Jury Finds That Lodis Breached His
Fiduciary Duty and Awards Damages to Corbis; Lodis Appeals.

       We summarized the facts preceding the first appeal herein in Lodis v.

Corbis Holdings. Inc., 172 Wn. App. 835, 292 P.3d 779 (2013).2

              Corbis Corporation supplies digital images and stock
       photography worldwide. Steven Lodis was hired in 2005 by then-
       chief-executive-officer (CEO) Steve Davis to serve as vice
       president of worldwide human resources (HR) for Corbis. In July
       2007, 37 year old Gary Shenk replaced Davis as CEO. Davis
       expressed concerns to Shenk about Lodis's performance. Instead
       of terminating Lodis, Shenk appointed Lodis to his nine person
       executive management team. Lodis was 55 at the time of the
        promotion. He initially received positive performance reviews from
        Shenk.
                After becoming CEO, Shenk made many comments
        indicating his preference for younger workers. He talked about
        olderworkers being "out of touch," "an old-timer," "grandmotherly,"
        or "the old guy on [the] team." Shenk also expressed interest to
        Lodis in hiring younger workers for his executive team.
                Lodis spoke with Shenk on several occasions about Shenk's
        age related comments. Lodis explained that there was a growing
        concern among Corbis employees about Shenk's comments. As
        the highest ranking HR officer at Corbis, Lodis reminded Shenkthat
        age should not be a factor in hiring or firing employees. Lodis
        explained later that he admonished Shenk, because he was "trying
        to protect [him]." In late 2007, Lodis expressed his concern about
        Shenk's comments to Corbis General Counsel Jim Mitchell.
        Around that same time, in late 2007 or possibly January 2008,
        Shenk promoted Lodis to senior vice president. Lodis also received
        a pay raise and incentive bonus at that time.
               In January 2008, Shenk organized executive team members
        and an independent consultant to conduct Lodis's annual
        performance review. The parties dispute the circumstances
        surrounding that performance review. Lodis alleges that Shenk
        specifically recruited Lodis detractors to compile a list of Lodis's
        faults and reasons to fire Lodis, because of Lodis's complaints to
        Shenk about the possible age discrimination. Corbis counters that
        2Because the first appeal concerned, in part, the trial court's grant ofsummary judgment
dismissal of Lodis's retaliation claim, our factual summary recited the facts in the light most
favorable to Lodis. Lodis. 172 Wn. App. at 846.
No. 72342-1-1/3



      the independent consultant found Shenk's reviews to be "off the
      charts negative," which precipitated Shenk putting Lodis on
      probation.
              Part of Lodis's probation required him to meet and discuss
      his working relationships with his colleagues. Shenk terminated
      Lodis for cause on March 26, 2008, for failing to meet the terms of
      his probation. Lodis allegedly lied to Shenk about meeting with the
      people who reported directly to him and failed to improve his
      relationship with them. Corbis claims this is the actual reason for
      Lodis's termination, along with ongoing performance issues and
      retaliation against another employee regarding a sexual
      harassment claim. Lodis counters that the performance review and
      probation were pretextual in order to fire Lodis for his complaints
      about Shenk's purported age discrimination.
             Three months after his termination, Lodis sued Corbis and
      Shenk, alleging age discrimination under RCW 49.60.180 and
      retaliation under RCW 49.60.210. Judge Michael Hayden granted
      Corbis's motion for summary judgment on the retaliation claim. . . .
      At trial, Judge Bruce Heller denied . . . Lodis's requests to . ..
      reinstate his retaliation claim.

             During discovery, Corbis . . . discovered that Lodis failed to
      record any vacation time in the payroll system during his tenure, but
      accepted a payout of $41,155 plus a 401(k) match of $1,235 for
      329 hours of accrued but unused vacation time. Based on this
      evidence, Corbis counterclaimed against Lodis for breach of
      fiduciary duty, unjust enrichment, and fraudulent misrepresentation.
      At trial, Mary Tomblinson, Corbis's payroll coordinator and HR
      system analyst, testified that Lodis used at least 35 more vacation
      days than he was entitled to. A summary of her analysis of those
      records was also admitted into evidence.
             Before the first trial, the trial court refused to decide as a
      matter of law whether Lodis owed a fiduciary duty, instead leaving
      the issue for the jury. The jury found that Corbis had not engaged
      in age discrimination. It found in favor of Lodis on the unjust
      enrichment and fraud counterclaims. However, the jury found that
      Lodis owed a fiduciary duty and breached that duty, but awarded
      no damages. The trial court granted a new trial on Corbis's breach
      of fiduciary duty counterclaim based on this incongruous result of
      liability but no damages.
               Before the second trial, Corbis moved for partial summary
      judgment to establish that Lodis was an officer with fiduciary duties.
      In its reply brief to that motion, Corbis introduced corporate
      resolutions indicating Lodis's status as an officer. Based on this
      evidence, Judge Heller found as a matter of law that Lodis was an
      officer.



                                         3-
No. 72342-1-1/4



            The second jury found that Lodis ... did breach his fiduciary
      duty by failing to record any vacation time and accepting the
      payout. The jury awarded damages in the full amount of the
      vacation payout: $42,389.

Lodis. 172 Wn. App. at 842-46 (footnote omitted).

      2. Following Appeal, Lodis's Retaliation Claim is Remanded for Trial
Before A Third Jury.

      On appeal following the second jury trial, we affirmed the prior judgments

and jury verdicts regarding the age discrimination claim and the breach of
fiduciary duty counterclaim, but reversed Judge Hayden's order granting
summary judgment dismissal of Lodis's retaliation claim. Lodis. 172 Wn. App. at
852. As a result, the retaliation claim was remanded for what would be the third

trial in this action, held before Judge Heller in May 2014.

       3. Lodis's Retaliation Claim is Premised Upon Five Alleged
Admonishments of Shenk.

       To establish a claim for retaliation under RCW 49.60.210, Lodis needed to

prove that he had engaged in certain protected activity and that Corbis, in turn,
took adverse employment action against him for having done so. Lodis, 172 Wn.
App. at 846-47. Lodis alleged that his protected activity was comprised of
admonishing Shenk on five separate occasions for making "ageist" comments.
Corbis and Shenk denied that any of these admonishments ever occurred.
       Lodis testified that the first of the five alleged admonishments occurred
sometime in the spring of 2007, after Shenk allegedly referred to Corbis's then-
director ofcompensation and benefits as the "old guy" on Lodis's human
resources team. Lodis testified that he asked Shenk to "stop referring to [the

employee] as 'the old man on the team.'" Shenk denied ever referring to the
No. 72342-1-1/5



employee in that manner or ever being admonished by Lodis for doing so.

       Lodis next testified that in the spring or summer of 2007, he admonished

Shenk for a second time after Shenk referred to his new executive team as a

"young team,"3 which was brought to Lodis's attention by Corbis's then-human

resources manager. Lodis also testified that he again admonished Shenk in

August or September 2007 for referring to his executive team as a "young team,"

after Lodis (he claimed) discussed the issue with Corbis's then-CFO. Further,

Shenk admitted that he referred to his executive team in that manner but stated

that it had nothing to do with age and, rather, was meant "to express the passion,

energy, and newness, the new thinking that those team members brought to the
table." Further, Shenk denied that Lodis had ever discussed this issue with him.

       Lodis further testified that, in approximately November 2007, he

admonished Shenk for a fourth time after Shenk referred to a Corbis employee—

who had been identified for possible termination as part of a reduction in force-

as "old." Shenk denied ever referring to the employee in that manner and denied

that Lodis had ever discussed this issue with him.

       Finally, Lodis testified that, in late November or early December 2007, he
admonished Shenk for a fifth time after Shenk expressed that he wished to

replace the then-senior vice president of Corbis's "Green Light Division" with a
"young Hollywood type." Shenk denied that he sought to replace the employee
with a "young Hollywood type," although he acknowledged that he considered an



       3The majority of the members of Shenk's executive team were over 40 years of age and
several were over 50.
No. 72342-1-1/6



applicant for employment who resided in the Hollywood, California area.4 Shenk
again denied that Lodis ever expressed any concerns regarding this issue to him.

       Lodis testified that, in early December 2007, he reported his concerns

about Shenk's comments to Jim Mitchell, Corbis's then-general counsel. Mitchell

denied that this conversation ever occurred. In any event, Lodis admitted that he

had no knowledge as to whether Mitchell informed Shenk of his conversation

with Lodis.

       At trial, Lodis introduced no written documents or corroborating testimony

evidencing that any of the claimed admonishments took place.5
       4. The Trial CourtEnters Orders In Limine Restricting the Evidentiary
Scope of the Trial to Lodis's Retaliation Claim.
       Prior to commencement of the third trial, Corbis filed motions in limine

seeking to limit the scope ofthe trial to the one remaining claim at issue.
Specifically, Corbis moved to preclude Lodis from attempting to use irrelevant
and prejudicial evidence of alleged age discrimination, which had already been
rejected by the jury in the first trial. Corbis also moved to preclude Lodis from
attempting to relitigate the issue of whether he had breached a fiduciary duty
owed to Corbis by failing to record vacation time—an issue central to Corbis's
after-acquired evidence defense. Judge Heller granted each motion and entered
orders limiting the admission of this evidence.



        4This applicant was approximately the same age as the employee that, Lodis testified,
Shenk sought to replace on account of his age.
       5 Lodis claims that he maintained documentation of the admonishments in his Corbis
office files but that Corbis "destroyed" the documents after Lodis brought suit. At no time did
Lodis seek relief from the trial court for such alleged spoliation of evidence. Corbis produced
Lodis's notes during discovery and vehemently denied destroying orwithholding any documents.
No. 72342-1-1/7



              a. The Trial Court Orders that Evidence of Alleged Age
       Discrimination Be Limited to the Five Alleged Admonishments.

       In its motion to preclude admission of certain evidence of alleged age

discrimination, Corbis argued that evidence of alleged age discrimination not

related to Lodis's claimed admonishments was inadmissible under the legal

doctrines of law of the case and collateral estoppel, as well as pursuant to the

applicable rules of evidence. Judge Heller did not accept Corbis's law of the

case or collateral estoppel arguments but did grant Corbis's motion based upon

its evidentiary arguments, reasoning as follows:

       The issue in the first motion is whether the same evidence of age
       discrimination that was introduced in the first trial to prove that
       Lodis' termination was based on his age is now admissible to prove
       retaliatory discharge. Lodis cites Brundridge[6] for the proposition
       that an employer's treatment of other employees is admissible to
       show retaliatory discharge. That's true, but the treatment of the
       other employees in Brundridge was retaliation, not any type of
       discriminatory behavior. Thus, Brundridge would allow Lodis to
       introduce evidence of retaliatory behavior by Shenk towards other
       employees. Lodis will also be permitted to introduce evidence
       concerning the alleged discriminatory behavior by Shenk that Lodis
       admonished Shenk about. But alleged ageist statements by Shenk
       that Lodis did not address with Shenk are inadmissible. Counsel
       will recall that during the first trial the court ruled that alleged sexist
       remarks by Shenk were not admissible to prove age discrimination.
       The same logic applies here with respect to the connection
       between ageist remarks and retaliatory motives.

             b. Lodis Repeatedly and Surreptitiously Introduces Evidence
       Excluded by the Trial Court's Order, Prompting Admission of the First Jury
       Verdict.

       In conjunction with his ruling that Lodis would be limited to introducing

evidence of alleged admonishments he made to Shenk, Judge Heller initially

ruled that evidence of the age discrimination verdict from the first trial would be

       « Brundridge v. Fluor Fed. Servs.. Inc.. 164 Wn.2d 432, 191 P.3d 879 (2008).
No. 72342-1-1/8



inadmissible. However, during trial, Lodis proceeded to introduce broad

evidence and testimony of alleged age discrimination in contravention of the trial

court's order. For example, Lodis repeatedly testified about and referred to the

ages of members of Shenk's executive team and suggested that Shenk was

motivated to make age-based employment decisions, even though there was no

allegation that Lodis ever admonished Shenk for such actions. Lodis also

suggested that Shenk had made "ageist" comments for which Lodis did not

admonish him.

       On these occasions, Corbis objected to the admissibility of such evidence

and asserted that, by suggesting that Shenk was an "ageist," Lodis had "opened

the door" to the admissibility of evidence of the age discrimination verdict. The

trial court repeatedly upheld its prior ruling excluding evidence of the age

discrimination verdict,7 while also cautioning Lodis's counsel that "he was taking

a bit of a risk by going down th[at] road."

       Ultimately, on the fifth day of trial, after Lodis repeatedly elicited testimony

suggesting both that Shenk was biased against older workers and had engaged
in age discrimination, the trial court concluded that Lodis had opened the door to

admission of evidence of the age discrimination verdict.

       I've spent a fair amount of time thinking about the issue of whether
       the prior jury verdict regarding age should come into evidence. As
       you know, my primary concern in ruling that it should stay out is I
       was concerned, as I indicated this morning, that if the jury was
       aware of that verdict, that they might make shortcuts and, for
       example, decide that if there is no basis for the age claim, then
       there is no basis for the retaliation claim.

       7"I'm not going to make any rulings at this point as to whether or not the door has been
opened on the age claim. At this point, I'll hold the line on that as well as what happens
tomorrow."
No. 72342-1-1/9



              However, there has been evidence, quite a bit of evidence,
       regarding age within the context of the retaliation claim. I'm thinking
       particularly of the evidence that came in yesterday in the cross-
       examination of Mr. Shenk regarding the fact that Mr. Shenk turned
       to Gillett, Brotman, and whoever the third member was of the
       executive team who were the younger members of the team, and
       the argument was that they wouldn't have stood up to him. That
       was one inference that could be drawn from it. I think that's an
       example of the jury hearing evidence regarding age and not
       knowing what to do with it.
               [Corbis's counsel] has persuaded me that just as Mr. Lodis
       needs to be protected from what I refer to as "shortcuts," I think
       Corbis also needs to be protected from the opposite thinking, which
       is, Well, we think that Mr. Shenk engaged in age discrimination by
       going to the younger members of the team, for example.
               So I think the jury needs some kind of a limiting instruction
       that tells them that the two issues are entirely separate.

       After ruling that evidence of the jury verdict was admissible, the trial court

gave the jury a limiting instruction as follows:

              Members of the jury, during this trial, you have heard that a
       prior jury found Mr. Lodis's termination was not the result of age
       discrimination. You must keep in mind that this is a retaliation case,
       not an age discrimination case. The issue of whether the
       defendants engaged in age discrimination is not before you and
       should not be considered by you in evaluating Mr. Lodis's
       retaliation claim.
              With respect to retaliation, the issues you must decide are,
       one, whether Mr. Lodis reasonably believed that Mr. Shenk made
       ageist comments; and, two, whether Mr. Lodis's alleged
       expressions of concern to Mr. Shenk about these comments was a
       substantial factor in his termination.
              That concludes the instruction. Thank you.

            c. The Trial Court Precludes Lodis from Relitigating Whether He
       Breached a Fiduciary Duty.

       Corbis's motion in limine regarding Lodis's prior breach of fiduciary duty

sought to prohibit Lodis from denying that such breach had occurred—a fact

established in two prior trials before two prior juries. Corbis contended that

Lodis's breach of fiduciary duty was directly relevant to its after-acquired
No. 72342-1-1/10



evidence defense, in that Lodis's misconduct would have otherwise led to a

justified termination, thereby limiting any damages he could recover for what he

was alleging to be a wrongful, retaliatory termination. In litigating this defense,

Corbis argued that Lodis should be prohibited under the legal doctrines of law of

the case and collateral estoppel from denying that his failure to record vacation

time constituted a breach of his fiduciary duties to Corbis.

       Judge Heller granted Corbis's motion, reasoning as follows:

       As to the second motion, the jury's verdict against Lodis regarding
       breach of fiduciary duty is that law of the case. Lodis will therefore
       not be permitted to re-litigate the issue by arguing, for example, that
       the acceptance of the vacation pay-out after his termination
       precludes a breach of fiduciary duty claim. The focus at trial will be
       on whether Corbis would have terminated Lodis had it known about
       Lodis' failure to record vacation time.

       Judge Heller later ruled that evidence of the verdict from the second jury

on Corbis's breach of fiduciary duty claim was relevant and, hence, admissible

under the rules of evidence, reasoning as follows:

              There are some other prior jury verdicts. I am going to allow
       the juryto hear that a prior juryfound that Mr. Lodis violated his
       breach of fiduciary duty by failing to record his vacation time ....
              My reasoning for doing that is one of the issues in the after-
       acquired evidence defense that will be raised by Corbis is that they
       have to show that Mr. Lodis's conduct was serious. And then, of
       course, they have to show that if they had known about it, they
       would have terminated him.
              The fact that a prior jury found that he breached his fiduciary
       duty is clearly relevant to the seriousness issue.

       5. The Trial Court Allows The Jury To Consider Corbis's After-Acquired
Evidence Defense.




                                          10
No. 72342-1-1/11



        Prior to the third trial, Lodis moved for judgment as a matter of law under

CR 50 on Corbis's after-acquired evidence defense.8 The trial court denied

Lodis's motion, reasoning as follows:

        I wanted to address a number of pending motions. The first is
        [Lodis's] motion for judgment as a matter of law on defendants'
       after-acquired evidence defense.
             And the issue that is being argued is whether or not there is
       any actual employment practice of terminating employees for not
        recording vacation.
                   [Lodis's counsel] argues that in the absence of any evidence
        of that, there can be no after-acquired evidence defense; it can't be
        based on a statement that "I would have terminated somebody."
                   The problem that I have with that argument is that even if
        there has not been a termination based on this kind of conduct, the
        question is: Has there ever been this kind of conduct in the past
        that would warrant termination?
               I know that there are disputes between the parties as to what
        the practice has been and whether or not other employees have
        failed to record vacation. As I understand Corbis's argument, there
        is a difference between not recording an insignificant number of
        days, however one wants to define that, and this situation.
               Ithink that question really needs to be decided by the jury.
        So based on the reasons that I have already given previously, I will
        allow the after-acquired evidence to go to the jury.[9]
        6. The Third Jury Rules in Corbis's Favor, Rejecting Lodis's Retaliation
Claim; The Trial Court Denies Lodis's Motion ForA New Trial.

        Following an eight-day trial, the third jury returned a verdict in Corbis's

favor, finding that Corbis had not engaged in retaliation. Lodis filed a motion for



        8Corbis had previously moved for partial summary judgment on its after-acquired
evidence defense, arguing thatthe defense had been established, as a matter of law, because
there had been a finding that Lodis breached his fiduciary duty, and there was undisputed
evidence that this breach was a terminable offense. The court acknowledged the validity of
Corbis's position, yet found that there remained questions offact for a jury, explaining that "[t]he
question at this stage is not whether Corbis can establish the elements ofthe after-acquired
evidence defense at trial, but whether the evidence is so strong that no reasonable jurorcould
find otherwise."
        9After thejury rendered its verdict, Lodis filed a renewed CR 50 motion on Corbis's after-
acquired evidence defense on identical grounds, which Judge Heller similarly denied.

                                               -11 -
No. 72342-1-1/12



a new trial under CR 59. The trial court denied Lodis's motion and entered

judgment for Corbis. Lodis now appeals for the second time.

                                           II


       Lodis first contends that the trial court erred by "precluding" him from

presenting evidence of his "reasonable belief of age discrimination and by

admitting evidence of the age discrimination verdict in Corbis's favor. This is so,

he asserts, because the evidence of his reasonable belief was relevant but

evidence of the verdict against him was both irrelevant and unfairly prejudicial.

We disagree.

       The evidentiary principles of relevancy and prejudice are familiar ones.

      All relevant evidence is admissible. ER 402; Medcalf v. Dep't of
       Licensing. 83 Wn. App. 8, 16, 920 P.2d 228 (1996), affd, 133
       Wn.2d 290, 944 P.2d 1014 (1997). "Relevant evidence" is
       "evidence having any tendency to make the existence of any fact
       that is of consequence to the determination of the action more
       probable or less probable than it would be without the evidence."
       ER 401; Medcalf. 83 Wn. App. at 16. Evidence tending to establish
       a party's theory, or to qualify or disprove the testimony of an
       adversary, is relevant evidence. Lamborn v. Phillips Pac. Chem.
       Co., 89 Wn.2d 701, 706, 575 P.2d 215 (1978); Maicke v. RDH. Inc..
       37 Wn. App. 750, 752, 683 P.2d 227 (1984).

Haves v. Wieber Enters.. Inc., 105 Wn. App. 611, 617, 20 P.3d 496 (2001).

       Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice. ER 403. "Evidence
may be unfairly prejudicial under ER 403 if it is evidence 'dragged in' for the sake
of its prejudicial effect or is likely to trigger an emotional response rather than a
rational decision among the jurors." Haves. 105 Wn. App. at 618 (citing Carson

v. Fine. 123 Wn.2d 206, 223-24, 867 P.2d 610 (1994)). "The ability of the danger



                                          12
No. 72342-1-1/13



of unfair prejudice to substantially outweigh the probative force of evidence is

'quite slim' where the evidence is undeniably probative of a central issue in the

case." Carson. 123 Wn.2d at 224 (quoting United States v. 0.161 Acres of Land.

837 F.2d 1036, 1041 (11th Cir. 1988)). "[T]he burden of showing prejudice is on

the party seeking to exclude the evidence." Carson. 123 Wn.2d at 225.

       "ER 403 must be administered in an evenhanded manner." Carson. 123

Wn.2d at 225. "Because of the trial court's considerable discretion in

administering ER 403, reversible error is found only in the exceptional

circumstance of a manifest abuse of discretion." Carson. 123 Wn.2d at 226.

       Lodis assigns error to two trial court rulings regarding the admissibility of

purported evidence of Shenk's alleged age discrimination. Each ruling is

addressed, in turn, below.

       However, as a preliminary matter, we note that Lodis confuses the issue

by resting his claims on the trial court's rulings in limine, even though the trial
court later reconsidered the pertinent rulings in the course of the proceedings

based on the parties' conduct at trial. As our Supreme Court has explained:

       A judge may reverse or modify a pretrial ruling at any time prior to
       the entry of final judgment. See State v. Kinard, 39 Wn. App. 871,
       873, 696 P.2d 603, review denied. 103 Wn.2d 1041 (1985). When
       this happens, a party must demonstrate the trial ruling itselfwas
       erroneous in order to secure a reversal. See State v. Brooks, 20
       Wn. App. 52, 60, 579 P.2d 961 (if evidence is admitted at trial
       contrary to a pretrial order in limine, reversal is not required unless
       the trial ruling was erroneous), review denied. 91 Wn.2d 1001
       (1978).




                                          13
No. 72342-1-1/14



Adcox v. Children's Orthopedic Hosp. & Med. Ctr.. 123 Wn.2d 15, 37, 864 P.2d

921 (1993). Thus, we consider only the trial court's final rulings regarding the

evidence at issue.


                                                  A


        Lodis first asserts that the trial court erred by "precluding" him from

presenting evidence of his "reasonable belief that he opposed discriminatory

conduct.10

        As we noted in our prior decision herein:

                The WLAD [Washington Law Against Discrimination]
        protects employees engaged in statutorily protected activity from
        retaliation by their employer. See RCW 49.60.210. It provides:

                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.

        RCW 49.60.210(1) (emphasis added).

Lodis, 172 Wn. App. at 847-48. The so-called "opposition clause," which

provides protection when an employee opposes forbidden practices, is at issue

here.

        "To establish a prima facie case of retaliation under the WLAD, the

employee must show that (1) he engaged in statutorily protected activity; (2) the

employer took some adverse employment action against the employee; and (3)


         10 Lodis's briefing on this issue also argues that neither the doctrine of collateral estoppel
nor the lawof the case doctrine provides a basis for the challenged trial court ruling. Because the
trial court did not rely on either doctrine in rendering its decision, and Corbis does not contend on
appeal that either doctrine applies, we do not further address these arguments.

                                                -14-
No. 72342-1-1/15



there is a causal link between the protected activity and the adverse action."11

Lodis. 172 Wn. App. at 846. "'[A]n employee who opposes employment

practices reasonably believed to be discriminatory is protected by the "opposition

clause" whether or not the practice is actually discriminatory.'" Renz v. Spokane

Eve Clinic. P.S.. 114 Wn. App. 611, 619, 60 P.3d 106 (2002) (alteration in

original) (internal quotation marks omitted) (quoting Graves v. Dep't of Game. 76

Wn. App. 705, 712, 887 P.2d 424 (1994)); accord Lodis, 172 Wn. App. at 852

("An employee need only show he had an objectively reasonable belief that his

employer violated the law, not that the employer did in fact violate the law." (citing

Ellis v. City of Seattle. 142 Wn.2d 450, 460-61, 13 P.3d 1065 (2000))).

       As a preliminary matter, contrary to Lodis's assertion, he was not

"precluded" from presenting evidence of his reasonable beliefthat he was

opposing discriminatory conduct. The record herein demonstrates that, in fact,
Lodis was permitted to present evidence concerning every one of the five

instances of allegedly discriminatory conduct that he claimed to have openly

opposed.

        Notwithstanding that the trial court's ruling permitted him to present

significant evidence of allegedly discriminatory conduct by Shenk, Lodis

contends that the trial court erred by prohibiting him from presenting evidence of

each instance of allegedly discriminatory conduct of which he was aware.

Lodis's contention overlooks the trial court's discretion to exclude minimally


        11 A retaliatory motive need not be the employer's sole or principal reason for the
discharge so long as the employee establishes that retaliation was a substantial factor. Wilmot v.
Kaiser Aluminum & Chem. Corp.. 118 Wn.2d 46, 68-69, 821 P.2d 18 (1991 ^: Kahn v. Salerno. 90
Wn. App. 110, 128-29, 951 P.2d 321 (1998).


                                              -15-
No. 72342-1-1/16



relevant and highly prejudicial evidence. Indeed, the relevance of this evidence

is questionable. The fact that Lodis did not think that this conduct, unlike the

conduct that he chose to oppose, was worth mentioning, suggests that evidence

of the conduct lacks probative value as to whether Lodis reasonably believed that

he was opposing discriminatory conduct on other occasions. In any case,

because the excluded evidence did not concern conduct that Lodis openly

opposed, it was far from the core of Lodis's claim that he was discharged in

retaliation for opposing discriminatory conduct.

       Moreover, permitting Lodis to present unlimited evidence of alleged

discriminatory conduct by Shenk would have risked significant, unfair prejudice to

Corbis. Such evidence would have left the unfair—and purely collateral-

impression that Shenk was an ageist. Furthermore, permitting Lodis to present

such evidence would have risked jury confusion regarding whether this was

actually an age discrimination case, ratherthan the retaliation case that it was
promoted to be. At a minimum, the presentation ofthis evidence by Lodis, the
presentation of rebuttal evidence by Corbis, and the consideration ofthe sum
total of that evidence by the jury would have imposed undue cost, delay, and

inefficiency on the proceedings.

       The trial court did not abuse its discretion by denying Lodis carte blanche

to introduce evidence of alleged discriminatory conduct, regardless of its

connection to his claim.




                                         16
No. 72342-1-1/17



                                           B


       Lodis next asserts that the trial court erred by allowing Corbis to present

evidence of the first jury's verdict against Lodis on his age discrimination claim,

including the actual verdict form.

       Pursuant to the "long-recognized" "open door" rule, "[generally, once a

party has raised a material issue, the opposing party is permitted to explain,

clarify, or contradict the evidence." State v. Berg, 147 Wn. App. 923, 939, 198

P.3d 529 (2008), abrogated on other grounds. State v. Mutch. 171 Wn.2d 646,

254 P.3d 803 (2011). Our Supreme Court explained the rule's rationale thusly:

       It would be a curious rule of evidence which allowed one party to
       bring up a subject, drop it at a point where it might appear
       advantageous to him, and then bar the other party from all further
       inquiries about it. Rules of evidence are designed to aid in
       establishing the truth. To close the door after receiving only a part
       of the evidence not only leaves the matter suspended in air at a
       point markedly advantageous to the party who opened the door, but
       might well limit the proof to half-truths.

State v. Gefeller, 76 Wn.2d 449, 455, 458 P.2d 17 (1969).

       A review of the proceedings leading up to the pertinent trial court ruling is

illuminating.

       Judge Heller initially ruled that the age discrimination verdict was
inadmissible. Corbis did not contest or otherwise object to the trial court's ruling,

conceding thatthe verdict was irrelevant to the issue ofwhether Corbis retaliated
against Lodis for having allegedly admonished Shenk for making age-based
comments. As the trial progressed, Lodis repeatedly introduced testimony

concerning alleged age discrimination about which he did not allegedly admonish
Shenk, in violation of the trial court's ruling. Indeed, even while upholding his


                                           17
No. 72342-1-1/18



ruling that the age discrimination verdict was inadmissible, throughout the

proceedings, Judge Heller repeatedly cautioned Lodis that he was "taking a bit of

a risk" in persisting in his efforts to introduce additional evidence of alleged age

discrimination.

       As a direct result of Lodis's insistence on introducing evidence that unfairly

left the jury with the implication that Shenk was biased against older workers,

Judge Heller reversed his prior ruling mid-trial and allowed Corbis to introduce

the age discrimination verdict in order to "protect" Corbis against any unfair
conclusion that Shenk had engaged in age discrimination. Specifically

recognizing that Lodis had introduced "quite a bit of evidence regarding age
within the context of the retaliation claim," Judge Heller reasoned that admission

of the prior jury verdict was necessary because Corbis was entitled "to be
protected from . . . [jury] 'shortcuts'. . . [inferring] that Mr. Shenk engaged in age
discrimination." In order to remedy any possible jury confusion resulting from the

introduction of the age discrimination evidence, the trial court gave the jury a
limiting instruction emphasizing that the focus of the trial was Lodis's retaliation
claim, not collateral allegations of age discrimination.

       The trial court's ultimate ruling permitting Corbis to present evidence of the

first jury's verdict, in order to rebut Lodis's created implication that Shenk was an
"ageist," was both prudent and even-handed. The challenged ruling, which was
consistent with the "open door" rule, was not an abuse of the trial court's

discretion.




                                         -18
No. 72342-1-1/19




         Lodis next contends that the trial court erred by invoking the law of the

case doctrine to prevent him from presenting evidence with the goal of relitigating

the second jury's breach of fiduciary duty verdict. Relatedly, he contends that

evidence of the second jury's verdict was both irrelevant to Corbis's after-

acquired evidence defense and unfairly prejudicial. His contentions are

unavailing.

         We apply the same principles of relevancy and prejudice summarized

above.

                                            A


         Lodis first asserts that the trial court erred by prohibiting him, based on the

law of the case doctrine, from relitigating the question of whether he breached a

fiduciary duty owed to Corbis.

         The law of the case doctrine "is often confused with other closely related

doctrines." Roberson v. Perez, 156 Wn.2d 33, 41, 123 P.3d 844 (2005), all of

which promote predictability, uniformity, consistency, finality, and efficiency in the

law, including stare decisis, collateral estoppel (i.e., issue preclusion), and res

judicata (i.e., claim preclusion). Because this case involves an attempt to

relitigate a prior claim, the doctrine most related to the law of the case as it

applies to these circumstances is res judicata.

         A primer on the relationship between these doctrines is helpful.
               Res judicata generally bars not only attempts to relitigate
         matters actually litigated, but also all other matters that should have
         been asserted in the earlier proceeding. In re Estate of Siebrasse.
         [ ] 722 N.W.2d 86, 90 [(S.D. 2006)]. The "law of the case" doctrine,


                                          -19
No. 72342-1-1/20



      on the other hand, stands for the general rule that "a question of
      law decided by the [appellate] court on a former appeal becomes
      the law of the case, in all its subsequent stages, and will not
      ordinarily be considered or reversed on a second appeal when the
      facts and the questions of law presented are substantially the
      same." jd. "The 'law of the case' doctrine is the weaker corollary of
      the doctrines of res judicata, collateral estoppelf,] and stare decisis
      and is intended to prove some degree of certainty where those
      doctrines could not yet apply." id.
             As we previously noted:
             Although the principles of the law of the case doctrine
             and res judicata are similar, their application differs.
             The law of the case rule involves the effect of a
             previous ruling within one action on a similar issue of
             law raised subsequently within the same action. The
             rules of res judicata apply to previous rulings in an
             action on a similar determination in a subsequent
             action,
      jd. Thus, "[w]here successive appeals are taken in the same case
      there is no question of res judicata, because the same suit, and not
      a new and different one, is involved." Id.

             "The 'law of the case' doctrine is intended to afford a
      measure of finality to litigated issues." Grvnberg Exploration Corp.
      v. Puckett, [ ] 682 N.W.2d 317, 322 [(S.D. 2004)]. This doctrine has
      many policy considerations: "(1) to protect settled expectations of
      the parties; (2) to insure uniformity of decisions; (3) to maintain
      consistency during the course of a single case; (4) to effectuate the
      proper and streamlined administration of justice; and (5) to bring
      litigation to an end." In re Estate of Jetter. [ ] 590 N.W.2d 254, 258
      [(S.D. 1999)]. We have cautioned, however, that "the 'law of the
      case' [doctrine] should not be used to perpetuate an erroneous
      decision[.]" Grvnberg. [ ] 682 N.W.2d at 322. Indeed, the doctrine
      "is not a rigid rule, and will not be invoked on a second appeal if the
      prior decision is palpably erroneous and if it is competent for the
      court to correct it on the second appeal." Siebrasse, [ ] 722 N.W.2d
      at 91. Furthermore, "a court may reopen a previously resolved
      question if the evidence on remand is substantially different or if a
      manifest injustice would otherwise result." ]d.

In re Pooled Advocate Trust, 813 N.W.2d 130, 139 (S.D. 2012) (some emphasis

added).




                                        20
No. 72342-1-1/21



      Thus, the essential difference between the doctrines is that the law of the

case doctrine applies to successive proceedings in the same case, whereas res

judicata is applicable to successive proceedings in different cases. See Pepper

v. United States. 562 U.S. 476, 506, 131 S. Ct. 1229, 179 L. Ed. 2d 196 (2011)

("'[A]s most commonly defined, the doctrine posits that when a court decides

upon a rule of law, that decision should continue to govern the same issues in

subsequent stages in the same case.'" (quoting Arizona v. California. 460 U.S.

605, 618, 103 S. Ct. 1382, 75 L. Ed. 2d 318 (1983)) (emphasis added))); Lusardi

v. Curtis Point Prop. Owners Ass'n. 86 N.J. 217, 226 n.2, 430 A.2d 881 (1981)

(The law ofthe case doctrine "applies only to proceedings prior to the entry ofa
final judgment. After that, rules of res judicata determine whether a prior
determination of law or fact is binding.").

       "The law of the case principle relates to (a) the binding force of trial court

rulings during later stages of the trial, (b) the conclusive effects of appellate
rulings at trial on remand, and (c) the rule that an appellate court will ordinarily
not reconsider its own rulings of law on a subsequent appeal.'" Arceneaux v.

AmstarCorp., 66 So.3d 438, 448 (La. 2011) (quoting Petition of Sewerage &

Water Bd. of New Orleans, 278 So.2d 81, 84 (La. 1973)); accord Mun. of San

Juan v. Rullan. 318 F.3d 26, 29 (1st Cir. 2003) ("[The law of the case] doctrine

has two components: 'One branch involves the so-called mandate rule [ ]which,
with only a few exceptions, forbids, among other things, a lower court from
relitigating issues that were decided by a higher court, whether explicitly or by
reasonable implication, at an earlier stage of the same case[ ]. The other branch


                                              21
No. 72342-1-1/22



. . . provides that unless corrected by an appellate tribunal, a legal decision made

at one stage of a civil or criminal case constitutes the law of the case throughout

the pendency of the litigation.'" (quoting Ellis v. United States, 313 F.3d 636, 646

(1st Cir. 2002)) (alteration in original)).

       In Washington, the principles of the law of the case doctrine are

memorialized in the Rules of Appellate Procedure. Roberson. 156 Wn.2d at 41;

State v. Worl. 129 Wn.2d 416, 424, 918 P.2d 905 (1996) (describing RAP 2.5(c)

as "codifying the law of the case doctrine"). RAP 2.5, which relates to the scope

of appellate review, provides, in pertinent part:

              (c) Law of the Case Doctrine Restricted. The following
       provisions apply if the same case is again before the appellate
       court following a remand:
             (1) Prior Trial Court Action. If a trial court decision is
       otherwise properly before the appellate court, the appellate court
       may at the instance ofa party review and determine the propriety of
       a decision of the trial court even though a similar decision was not
       disputed in an earlier review of the same case.
               (2) Prior Appellate Court Decision. The appellate court may
       at the instance of a party review the propriety of an earlier decision
       of the appellate court in the same case and, where justice would
        best be served, decide the case on the basis of the appellate
        court's opinion of the law at the time of the later review.

       "By using the term 'may,' RAP 2.5(c)(2) is written in discretionary, rather
than mandatory, terms. The plain language of the rule affords appellate courts
discretion in its application." Roberson, 156 Wn.2d at 42: see Folsom v. County

of Spokane, 111 Wn.2d 256, 264, 759 P.2d 1196 (1988).

        The same discretion is not afforded to the trial court on remand from the

appellate court. "'Upon the retrial, the parties and the trial court [are] all bound by


                                              22
No. 72342-1-1/23



the law as made by the decision on the first appeal. On appeal therefrom, the

parties and this court are bound by that decision unless and until authoritatively

overruled.'" Bunn v. Bates. 36 Wn.2d 100, 103, 216 P.2d 741 (1950) (quoting

Baxter v.Ford Motor Co.. 179 Wash. 123, 127, 35 P.2d 1090 (1934)). This

principle is reflected in RAP 12.2, relating to the procedure following issuance of

an appellate court decision, which provides, in relevant part:

      Upon issuance of the mandate of the appellate court .... the
      action taken or decision made by the appellate court is effective
      and binding on the parties to the review and governs all subsequent
      proceedings in the action in any court, . . . except as provided in
      rule 2.5(c)(2). After the mandate has issued, the trial court may,
      however, hear and decide postjudgment motions otherwise
      authorized by statute or court rule so long as those motions do not
      challenge issues already decided by the appellate court.

(Emphasis added.)

       RAP 12.2 is consistent with the general principle that "'the decision of the

appellate court establishes the law ofthe case and it must be followed by the trial
court on remand.'" United States v. Rivera-Martinez. 931 F.2d 148, 150 (1st Cir.

1991) (quoting 1B J. Moore, J. Lucas, &T. Currier, Moore's Federal Practice

H0.404[1] (2d ed. 1991)): accord Nattah v. Bush. 770 F. Supp. 2d 193, 201

(D.D.C. 2011) ("Under the law ofthe case doctrine, [the trial court] may not revisit
any issues that it has previously resolved, nor may it re-evaluate the merits of

any disputes settled by the [appellate court] on appeal.").
       Herein, Lodis sought to present evidence attacking a priorjury's verdict

finding that he breached his fiduciary duty. Relitigating the jury's verdict was the
only purpose for which the evidence was proffered. Importantly, Lodis had
already challenged that verdict in his first appeal to this court. At that time, we


                                        -23
No. 72342-1-1/24



rejected Lodis's claims of error and affirmed the verdict. The jury's finding that

Lodis had breached a fiduciary duty owed to Corbis by failing to record vacation

time thus became the law of the case.

       Because the law of the case doctrine prohibited Lodis from relitigating the

jury's verdict in the trial court, whether Lodis breached a fiduciary duty owed to

Corbis was not a fact at issue in the proceedings on remand. Therefore, the

evidence that Lodis sought to have admitted was not material. The trial court did

not abuse its discretion by excluding irrelevant evidence. To the contrary, it

properly declined Lodis's invitation to undermine both the jury's verdict and the

appellate court's mandate in contravention of the law of the case doctrine.

                                          B


       Lodis next asserts that the trial court erred "in admitting testimony

regarding the second jury verdict and ... the actual second jury's verdict on

Corbis' breach of fiduciary duty counter-claim." Br. of Appellant at 4.

       Preliminarily, we note that Lodis's argument regarding the breach of

fiduciary duty verdict is muddled. At times, it is presented as inextricably linked
to Lodis's relitigation argument—that is, he seems to be arguing that, because he
should have been permitted to relitigate whether he had breached a fiduciary

duty owed to Corbis, the jury's verdict that he, in fact, did so lacks relevance.
Given our resolution of the immediately preceding issue, to the extent that Lodis

so argues, his claim fails.

       At other times, Lodis seems make an argument similar to his argument

regarding the first jury's age discrimination verdict—that is, he argues that, even


                                         24
No. 72342-1-1/25



though evidence of the misconduct that constituted a breach of his fiduciary duty

was admissible, evidence of the second jury's verdict, including the actual verdict

form, should not have been admitted in light of the principles of relevancy and

prejudice. This version of his argument was presented to the trial court.

       After the trial court granted Corbis's motion precluding Lodis from

relitigating the breach of fiduciary duty claim, Lodis attempted to parse the jury's

finding that Lodis had failed to record vacation time from its verdict that he

breached a fiduciary duty owed to Corbis, arguing:

       He [(Lodis)] cannot say that "I did not fail to record my vacation."
       We accept that. That has nothing to do with whether or not they get
       to hear breach of fiduciary duty. That's a whole separate issue
       because it is only relevant on the issue of after-acquired evidence.
       And it's not the breach that's relevant; it's the failure to record
       because Shenk alone will say, "I would have fired him for that."
              So I think that's pretty straightforward, Your Honor. They
       don't get to say breach of fiduciary duty.

Lodis's argument fails to recognize that the fact that Lodis's failure to record
vacation time constituted a breach of a fiduciary duty owed to Corbis was

separately relevant to Corbis's after-acquired evidence defense.

       "The 'after-acquired evidence' doctrine precludes or limits an employee

from receiving remedies for wrongful discharge if the employer later 'discovers'

evidence of wrongdoing that would have led to the employee's termination had

the employer known of the misconduct." Rivera v. NIBCO. Inc.. 364 F.3d 1057,
1070-71 (9th Cir. 2004) (quoting McKennon v. Nashville Banner Publ'g Co.. 513
U.S. 352, 360-63, 115 S. Ct. 879, 130 L. Ed. 2d 852 (1995)). An employer can

avoid back pay and other remedies by coming forward with after-acquired
evidence of an employee's misconduct, but only if it can prove by a


                                           25
No. 72342-1-1/26



preponderance of the evidence "that the wrongdoing was of such severity that

the employee in fact would have been terminated on those grounds alone if the

employer had known of it at the time of the discharge." McKennon, 513 U.S. at

362-63) (emphasis added); accord Janson v. N. Valley Hosp.. 93 Wn. App. 892,

971 P.2d 67 (1999) (adopting after-acquired evidence defense as articulated in

McKennon).

        Herein, the second jury found not only that Lodis had improperly failed to

record his vacation time, but also that this misconduct constituted a breach of a

fiduciary duty that he owed to Corbis. As the trial court noted, this second finding

significantly elevates the perceived seriousness of Lodis's misconduct.

Therefore, the jury's breach of fiduciary duty verdict against Lodis was

independently relevant to Corbis's after-acquired evidence defense, particularly

whether Lodis's misconduct was of "such severity" that Shenk would have

discharged him on that basis alone. Furthermore, given the sprawling nature of
the litigation herein, the trial court's effort to limit the issues by permitting
evidence of Lodis's misconduct to be presented in an abridged manner, in the

context of the jury's determination that he breached a fiduciary duty, was well-

founded.12

        The trial court did not abuse its direction in admitting evidence of the

second jury's breach of fiduciary duty verdict.




        12 The same concern for reigning in the proceedings in order to avoid juryconfusion
explains the trial court's decisions (1) to refuse to give an instruction on the elements ofbreach of
fiduciary duty (a claim that, after all, was not directly at issue therein), and (2) to limit the
presentation ofevidence regarding the claims that had been at issue in the second trial.

                                               -26-
No. 72342-1-1/27



                                           IV


       Lodis next contends that the trial court erred by allowing the jury to

consider Corbis's "after-acquired evidence" affirmative defense. This is so, he

asserts, because "Corbis presented insufficient evidence for the after-acquired

evidence defense ... to be presented to the jury." His contention is unavailing.

       CR 50(a)(1), regarding motions for judgment as a matter of law, provides:

       If, during a trial by jury, a party has been fully heard with respect to
       an issue and there is no legally sufficient evidentiary basis for a
       reasonable jury to find or have found for that party with respect to
       that issue, the court may grant a motion for judgment as a matter of
       law against the party on any claim . . . that cannot under the
       controlling law be maintained without a favorable finding on that
       issue.

       "Granting a motion for judgment as a matter of law is appropriate 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." Sing v. John L. Scott. Inc.. 134 Wn.2d

24, 29, 948 P.2d 816 (1997). "Such a motion can be granted only when it can be

said, as a matter of law, that there is no competent and substantial evidence

upon which the verdict can rest." State v. Hall. 74 Wn.2d 726, 727, 446 P.2d 323
(1968). "Substantial evidence is said to exist if it is sufficient to persuade a fair-
minded, rational person of the truth of the declared premise." Brown v. Superior

Underwriters. 30 Wn. App. 303, 306, 632 P.2d 887 (1980).

       When reviewing a motion for judgment as a matter of law, appellate courts

apply the same standard as the trial court. Guiiosa v. Wal-Mart Stores. Inc.. 144
Wn.2d 907, 915, 32 P.3d 250 (2001).



                                         -27
No. 72342-1-1/28



      Lodis contends that he was entitled to judgment as a matter of law on

Corbis's after-acquired evidence defense.

      As summarized above, pursuant to the after-acquired evidence defense,

an employer can avoid back pay and other remedies for wrongful discharge by
coming forward with evidence of an employee's misconduct that was acquired
after the discharge, but only if it can prove by a preponderance of the evidence

"that the employee in fact would have been terminated on those grounds alone if
the employer had known of it at the time of the discharge." McKennon, 513 U.S.
at 362-63.

       In order to carry its burden, an employer is not required "to come forward
with proof that they discharged other employees for the precise misconduct at
issue (though such evidence would no doubt be helpful to their case)." O'Day v.
McDonnell Douolas Helicopter Co.. 79 F.3d 756, 762 (9th Cir. 1996). An

employer may prevail, for example, by proffering testimony that the employee
would have been terminated that is "corroborated both by the company policy,

which plausibly could be read to require discharge for the conduct at issue here,
and by common sense." O'Day, 79 F.3d at 762.
       Here, Corbis presented substantial evidence based upon which the jury
could have rendered a verdict in its favor. Corbis's "Code of Conduct" expressly

"forbid[s] certain behaviors [] based on common sense guidelines," including (1)
"falsification or misrepresentation of company records . . . including]. . . time
reports"; (2) "[violation of any Corbis policy";13 and (3) "[a]ny activity that has an


       13 Lodis's failure to record vacation time violated Corbis's time reporting policy.


                                              -28-
No. 72342-1-1/29



adverse effect on the company's interests." Shenk testified that engaging in any

of these impermissible behaviors is a ground for termination at Corbis and that,

as such, he would have terminated Lodis when he learned of his failure to record

any vacation time.14 The fact that a prior jury found that Lodis's conduct

constituted a breach of his fiduciary duties of undivided loyalty and care

establishes that Lodis's actions were "adverse [to] the company's interests" and

underscores their severity and seriousness. Moreover, common sense suggests

that a CEO would terminate the highest ranking human resources officer—the

self-proclaimed "moral compass" of the company—and member of his executive

team upon discovering that the executive had failed to record a single hour of

vacation throughout the duration of his employment, despite taking more than 89

days off, in violation of the very policies he was responsible for enforcing.15


        14 Shenk was unequivocal that he would have terminated Lodis.
        Q: If Mr. Lodis had still been employed by Corbis in October of 2008 at the time
        that you discovered these events, what would you have done?
        A. I would have fired him.
        15 Lodis makes three assertions in support of his contention to the contrary, none of
which are supported by the record.
        First, he asserts that "Corbis's own witness, Vivian Farris, the senior vice president of
human resources (and Mr. Lodis's replacement) testified on direct that it was not "a terminable
offense" to fail to record vacation time, even though it was a violation of company policy." Br. of
Appellant at 47. However, the report of proceedings to which Lodis cites in support of this
assertion, if it exists, was not designated on appeal. Thus, we do not further address this
assertion. See Rhinevault v. Rhinevault. 91 Wn. App. 688, 692, 959 P.2d 687 (1998) ("[T]he
appellant bears the burden of complying with the Rules of Appellate Procedure [ ] and perfecting
his record on appeal so the reviewing court has before itall the evidence relevant to deciding the
issues before it. The court may decline to reach the merits of an issue if this burden is not met."
(citation omitted)).
         Second, Lodis asserts that "[t]he evidence showed that Corbis knew . . . that others in
similar positions did the same thing." Br of Appellant at 47-48. In supportof this assertion, Lodis
cites to the trial court's letter ruling denying Lodis's pretrial CR 50 motion for judgment as a matter
of law on Corbis's defense. However, Lodis offers no support for the proposition that, at trial, he
presented any evidencethat people in positions similar to Lodis engaged in comparable
misconduct.
        Finally, Lodis asserts that "[t]he evidenceshowed that Corbis knew .. . that Lodis was not
recording his vacation time, and that itdid not mention that as a basis for his termination or
withhold his vacation payout, see Ex. 108." Br. of Appellant 47. In fact, however, Lodis cites no

                                                -29-
No. 72342-1-1/30



        Because Corbis presented substantial evidence in support of its after-

acquired evidence defense, the trial court did not err by refusing to grant

judgment as a matter of law thereon in Lodis's favor.1617

        Affirmed.



                                                             **?^ W
We concur:




    / * o;k c V        4
                           ^                               6&.ZF.




evidence suggesting that Corbis was aware of Lodis's misconduct before his termination. The
exhibit upon which Lodis relies establishes that, after Lodis had been terminated, Mitchell,
Corbis's general counsel, was made aware that Lodis had failed to record significant vacation
time.
        16 Related to this issue, Lodis also asserts that prejudicial character evidence of his
failure to report vacation time should not have been presented tothe jury. This argument
presumably hinges on his argument that he was entitled to judgment as a matter of law on
Corbis's defense, since the evidence isclearly relevant to that defense. To the extent that Lodis
is intending to argue that some particular evidence, though relevant to Corbis's defense, was
unfairly prejudicial, his argument fails because he does not assign error to any of the trial court's
evidentiary rulings.                                                                     .
        17 Lodis also assigns error to the trial court's denial of his motion for a new trial but does
not present argument relative to that assignment. Therefore, we do not further address this
claim. Skaait Countv Pub. Hqsp. Dist. No. 1 v. Dep't ofRevenue. 158 Wn. App. 426, 440, 242
P.3d 909 (2010) ("An appellant waives an assignment of error [by] fail[ing] to present argument or
citation to authority in support of that assignment.")

                                                -30-
