       IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON


BRIAN LONG,
                                               No. 70529-6-1
                    Appellant,
                                               DIVISION ONE



BRUSCO TUG & BARGE, INC., a
                                                                           <^2
Washington corporation; BO
BRUSCO and his marital community,              UNPUBLISHED OPINION
                                                                            en
                    Respondents,               FILED: August 11, 2014           —
                                                                                      f/>r;'
             and
                                                                                      :5°
BRUSCO MARITIME CO., a
                                                                                 re
Washington corporation,

                    Defendant.



      Becker, J. — Appellant Brian Long sued his employer, alleging retaliatory

termination. Long appeals from a defense verdict. We affirm the challenged

evidentiary rulings and conclude Long did not establish juror misconduct that

would demand a new trial.

      The respondent is Long's former employer, Brusco Tug & Barge. Brusco

provides cargo barging and towing services at ports and at sea. Long began

working at Brusco in 1995 as a deckhand. In 2007, Long accepted a position as
No. 70529-6-1/2




a ship assist captain with Brusco at the Port of Everett. In April 2009, Long was

promoted to port manager for Brusco's operations at the Port of Everett.

       In September 2009, Long hired Anthony Morgan as a deckhand. Morgan

has a prosthetic leg. Long believed Morgan could handle the job, but chief

executive offer Bo Brusco complained about the hire. Morgan filed a disability

discrimination charge against Brusco with the Equal Employment Opportunity

Commission later that month.


      At the end of December 2009, Brusco terminated Long from his

managerial position. Long's theory at trial was that Brusco terminated him in

retaliation for hiring Morgan and opposing what Long claimed was Brusco's

discrimination against Morgan. Brusco claimed that Long was terminated

because of his mismanagement of an incident involving the ship Sevilla on

December 21, 2009.

      As port manager for Brusco, Long was responsible for ensuring all vessels

were properly manned. He was expected to act as a second ship assist captain

in the event that an incoming ship requested one. Long went on vacation on

December 21, 2009. The Sevilla was scheduled to come into the Port of Everett

that day at 4:30 p.m. with a single tug assist. Long testified that he had arranged

for John Juker, his second-in-command, to captain the tug that would assist the

Sevilla into port. He also testified that he had arranged for J.C. Anderson to be

available to captain a second tug if the Sevilla needed one.
No. 70529-6-1/3




      As it turned out, the Sevilla was delayed eight hours and did not arrive

until after midnight on December 22. A second tug assist was needed, but

Anderson was not available to captain the tug. David Brusco, Bo Brusco's son,

ended up acting as second captain to assist the Sev/7/a into port. Brusco was

unhappy that Long did not have a second tug assist lined up for the Sevilla.

      On November 2, 2011, Long filed this suit alleging that Brusco unlawfully

retaliated against him for opposing what he reasonably believed to be Brusco's

discrimination against Morgan. Long argued the Sevilla incident was pretext.

Trial began April 22, 2013. The jury returned a defense verdict, 10-2. Long

appeals.

Exclusion of comparator evidence

      Long contends the court abused its discretion in excluding evidence that

Brusco treated comparably situated employees less harshly.

      To make a case for retaliatory termination, a former employee must show

retaliatory motive for the alleged adverse employment action. Johnson v. Dep't

of Social & Health Servs.. 80 Wn. App. 212, 227, 907 P.2d 1223 (1996).

Disparate treatment of similarly situated employees constitutes circumstantial

evidence supporting a finding of retaliation. Johnson, 80 Wn. App. at 227.

Individuals are similarly situated when they have similar jobs and display similar

conduct. Vasquez v. County of Los Angeles, 349 F.3d 634, 640-41 (9th Cir.

2003). But the employees need not be identically situated. Earl v. Nielsen Media

Research. Inc.. 658 F.3d 1108, 1114 (9th Cir. 2011).
No. 70529-6-1/4




         The trial court allowed comparator evidence as to Rich Nordstrom, Adam

Wellenbrock, and David Brusco. Nordstrom was a tug captain who was not fired,

though he failed to show up for many jobs and was once caught with alcohol on a

ship in violation of Coast Guard regulations, and unable to captain. Wellenbrock

was hired back after receiving several write-ups for, among other things, being

absent and insubordination. David Brusco was not fired, though he was late for a

ship assist while working as Brusco's port manager at the Port of Everett,

resulting in a delay.

        Long contends the court erred by excluding evidence as to Craig Petit,

Nick Bernert, Joe Bromley, Corey Johnson, and Mark Guinn. Petit, a deckhand,

was not fired, though he allegedly missed a job in September 2010 after being

pulled over and questioned on suspicion of drunk driving. Bernert, an engineer,

was rehired despite having previously delayed a ship run for eight hours by

showing up late. Bromley, an ocean tugboat captain, was promoted to

supervisor despite pleading guilty to misdemeanor assault. Johnson, a

deckhand, missed a number of jobs but was not fired. Guinn, Brusco's manager

in another location, was not immediately fired although his involvement in the

discharge of dredged materials without a permit subjected Brusco to significant

civil and criminal liability for oil spillage.
No. 70529-6-1/5




      The trial court explained its rationale in a ruling made on April 22, 2013:

      When we talk generally about deckhands or engineers, I think
      those are not analogous and would not be appropriate. When we
      talk about Mr. Guinn, the bay area manager, we're talking about the
      oil spill and he was, in fact, fired so it really doesn't seem at all
      analogous as well.

The next day, the court provided further explanation:

       I have had a chance to take a look at the cases, and the cases do
      generally require that, for comparator evidence to be admissible,
      that there be a sufficient similarity in both ... the jobs in question
      and the purported misconduct in question, such that the inference
      can be drawn if there was something more at play than simply
      discipline for that particular conduct.
               ... it doesn't have to be an identical situation either in terms
      of the purported misconduct or the job. It's a relatively flexible
      standard. The question is whether or not the inference can be
      drawn.


The court thus decided to exclude Long's proposed comparators who were

involved in assaults, kidnappings, and oil spills, as well as those who were

deckhands or engineers, as being not sufficiently similar.

       Long contends the trial court's approach to admitting comparator evidence

was too narrow. He argues that the excluded comparators caused or risked

significant ship delay or else engaged in criminal conduct, yet they were not

treated as harshly as he was.

      A showing that the employer treated similarly situated employees more

favorably can be probative of pretext. However, employees in supervisory

positions "are generally deemed not to be similarly situated to lower level

employees." Vasquez, 349 F.3d at 641. A company that places some level of

managerial and supervisory authority in one individual may hold that individual to
                                           5
No. 70529-6-1/6




a higher standard than those in whom less authority is vested. Treating

employees who were involved in assaults and alcohol abuse less harshly than a

manager who was unprepared for a tug assist does not give rise to a strong

inference of pretext.

       We find no abuse of discretion in the trial court's rulings on comparator

evidence.


Impeachment with prior inconsistent statement

       Long contends the trial court erred by refusing to let him impeach the

testimony of Anderson with a recording of a statement Long made to his

investigator.

       A party may attack the credibility of a witness by impeachment with a prior

inconsistent statement. ER 613. The test for inconsistency is determined by the

whole impression or effect of the two statements, not by individual words or

phrases. The question is whether the two utterances are inconsistent—do they

appear to have been produced by inconsistent beliefs? State v. Dickenson, 48

Wn. App. 457, 467, 740 P.2d 312, review denied, 109Wn.2d 1001 (1987).

       Brusco's version of the events surrounding the Sevilla was that Long had

not adequately prepared for the possibility that while he was on vacation, an

incoming ship would need a second tug assist. Long's version was that he had

arranged for Anderson to be available, and Anderson would have been available

if the Sevilla had arrived on schedule. According to Long, Juker did not tell him

the Sevilla was delayed, and thus, Long did not have the opportunity to make
No. 70529-6-1/7




calls and find a substitute. On October 29, 2012, while preparing for trial, a

member of Long's attorney's office interviewed Anderson by phone and made a

recording of part of the call. In the call, Anderson confirmed that Long had called

him in late 2009 to see if he would be willing to cover a second tug job "if

something came up in Everett." Anderson also said that he had previously

spoken with someone at Brusco "about having permission to cover" a second tug

job.

       Anderson was questioned on direct examination in the plaintiff's case on

April 24, 2013. When asked to confirm that Brusco employee Kevin Lehto or

Tom Campbell had called to ask if he could assist Long as relief captain,

Anderson answered that he never received a call from them. When asked about

his prior statement to the investigator, Anderson said he was busy driving a boat

at the time and did not pay much attention to the call. Long asked to impeach

Anderson by playing a recording of that interview. The court refused, and the

examination of Anderson proceeded. Anderson testified that he had once called

Lehto to ask generally about the possibility of working with Brusco, but he did not

pursue it because he was not interested at the time. Anderson remembered

getting a call from Long, but "I told him that I could not do the job for him, that I

wasn't interested in it, that I had other things." Presented with telephone call logs

showing that he and Long had spoken on the phone for seven minutes on

December 18, 2009, and two minutes on December 21, 2009, Anderson said he

could not remember what was discussed on those particular dates.
No. 70529-6-1/8




       Long contends the court abused its discretion. However, as the court

explained, the answers Anderson gave in the recorded interview were not

inconsistent with the answers he gave at trial. In the recorded interview,

Anderson remembered having a conversation with Lehto, Long, or Campbell

about getting authorized to cover a second tug job, but he did not say that Lehto

or Campbell initiated the call. He remembered getting a call from Long, but he

did not say he agreed to serve as a tug captain. The trial court properly

exercised its discretion to refuse impeachment.

Admissibility of the "Westwood notes" under ER 904

       Long obtained a few pages of handwritten notes in production from

Westwood Shipping, the Sevilla's owner. The notes obviously concern the

Sevilla incident on December 21, 2009, but they are not self-explanatory. In a

joint statement of evidence proposed under ER 904, Long offered the notes into

evidence. ER 904, "Admissibility of Documents," provides that certain

documents proposed as exhibits after appropriate notice "shall be deemed

admissible" unless an objection is timely made. ER 904(b). Brusco timely

objected.

      The court refused to admit the notes. Long argues the evidence was "per

se admissible" under ER 904.

       During trial, Long filed a motion for a trial subpoena for a records

custodian from Westwood Shipping. Brusco complained that the records

custodian was unnecessary because authenticity of the documents was not in

                                          8
No. 70529-6-1/9




dispute. Long noted that Brusco had also raised a hearsay objection and said

the subpoena would be withdrawn "if they will stipulate that they're business

records kept in the ordinary course of business." Brusco stipulated that the

documents were business records.

         Later, during the testimony of Juker, Long offered the notes into evidence

as proof of the timeline of the Sevilla incident. He wanted to argue to the jury,

based on the notes, that Juker failed to let him know about the Sevilla's delay in

time for him to call Anderson or make alternative plans for a substitute.

According to Long, Brusco's stipulation removed any objection to the notes on

the basis of authenticity or hearsay. Brusco responded that the stipulation was

not to admissibility, and it only relieved Long of the responsibility of producing a

custodian to prove the notes were business records. "Even if those handwritten

notations were a business record for purposes of overcoming a hearsay issue, a

records custodian still would not be able to describe what was meant by those

notations."


         Agreeing with Brusco, the trial court excluded the notes: "It takes an awful

lot of explanation to try to see what the significance of the document might be. I

think there's—I don't think a custodian could lay the foundation for it. It would

have taken a witness to explain it in order to get that interpretation before the

jury."

         To support his argument that documents offered under ER 904 are "per se

admissible," Long cites Miller v. Arctic Alaska Fisheries Corp., 133 Wn.2d 250,
No. 70529-6-1/10




259, 944 P.2d 1005 (1997). Miller explains that there is a presumption of

admissibility under ER 904. Where documents are timely offered in accordance

with the rule, the rule creates an expectation of admission in the absence of a

timely objection. Miller, 133 Wn.2d at 260. It is error to exclude documents on

the basis of an objection that is untimely.

       What Long overlooks is that objections to relevancy of a document need

not be made until trial. ER 904(c)(2). At trial, Brusco objected to admission of

the handwritten notes on the ground that they were meaningless without a

witness who could explain them. While Brusco and the trial court did not

explicitly use the word "irrelevant" to explain why the notes should not be

admitted, lack of relevance was the problem. A meaningless document cannot

be relevant. Long's plan to have counsel explain the notes in argument to the

jury would not have been a fair or adequate substitute for some testimony

providing a foundation for interpreting the meaning of the notes.

       The trial court appropriately exercised its discretion to exclude the

Westwood notes.


Motion for a new trial


       After the defense verdict, Long moved for a new trial, alleging juror

misconduct. Long obtained affidavits from jurors indicating that during

deliberations one of the jurors made extensive comments based on his naval

experience. The comments were to the effect that there was no way any

maritime organization would have allowed a person with a prosthetic leg to work

                                          10
No. 70529-6-1/11




as a deckhand and the juror was aware of the law and no law would permit it

because of the safety risk. Long contends the trial court erred by denying his

motion.


      Appellate courts will generally not examine how the jury collectively or as

individuals goes about reaching its verdict. Richards v. Overlake Hosp. Med.

Ctr., 59 Wn. App. 266, 270, 796 P.2d 737 (1990), review denied, 116 Wn.2d

1014 (1991). An exception to this rule exists where a juror injects novel evidence

into the deliberations. Verdicts are upheld unless (1) the affidavits of the jurors

allege facts showing misconduct and (2) those facts support a determination that

the misconduct affected the verdict. Richards, 59 Wn. App. at 271. Juror

affidavits may be considered only to the extent that they do not attest to matters

inhering in the verdict. Richards, 59 Wn. App. at 272. The individual or collective

thought process leading to a verdict inheres in that verdict and cannot be used to

impeach it. Richards, 59 Wn. App. at 272.

       A trial court has discretion to grant or deny a new trial for juror misconduct,

which will not be overturned absent an abuse of discretion. Richards, 59 Wn.

App. at 271. A trial court abuses its discretion when its decision is manifestly

unreasonable, exercised on untenable grounds, or for untenable reasons.

Richards, 59 Wn. App. at 271. "'A strong, affirmative showing of misconduct is

necessary in order to overcome the policy favoring stable and certain verdicts

and the secret, frank and free discussion of the evidence by the jury.'"



                                          11
No. 70529-6-1/12




Breckenridge v. Valley Gen. Hosp., 150 Wn.2d 197, 203, 75 P.3d 944 (2003),

quoting State v. Balisok, 123Wn.2d 114, 117-18, 866 P.2d 631 (1994).

       Long cites six cases to support his argument that the juror committed

misconduct. The first case is Adkins v. Aluminum Co. of America, 110 Wn.2d

128, 138, 750 P.2d 1257 (1988). In Adkins, jurors in a personal injury case

looked up "negligence" and "proximate cause" in Black's Law Dictionary. The

Supreme Court affirmed the trial court's decision to grant the motion for a new

trial because Black's Law Dictionary definitions were extrinsic information not

admitted into evidence at trial and the trial court did not abuse its discretion when


it found that the extrinsic evidence affected the verdict. Adkins, 110 Wn.2d at

137.


       The second case is Bouton-Perkins Lumber Co. v. Huston, 81 Wash. 678,

143 P. 146 (1914). In Bouton-Perkins, jurors consulted a pamphlet purporting to

contain relevant Washington law during deliberation. The trial court denied a

motion for new trial. The Supreme Court reversed and remanded with

instructions to grant the motion for new trial because the pamphlet was extrinsic

evidence.


       This case is not like Adkins or Bouton-Perkins. The juror did not bring in

any written material like a dictionary or a legal pamphlet. Although he spoke

from notes, there is no evidence that he compiled the notes by consulting

extrinsic evidence.




                                         12
No. 70529-6-1/13




       The third case is State v. Clausing, 147 Wn.2d 620, 56 P.3d 550 (2002).

In Clausing, the Supreme Court reversed a criminal conviction after finding that

an expert improperly testified on law, usurping the role of the trial judge. This

case is not on point as it deals with trial court error in controlling the testimony of

a witness, not an allegation that a juror brought in extrinsic evidence of law. As

Adkins demonstrates, it is clear that a juror commits misconduct by bringing in

extrinsic evidence of law. The question remains: did the juror in this case bring

in extrinsic evidence of law? Clausing does not help to answer that question.

       The fourth case is Fritsch v. J.J. Newberry's, Inc., 43 Wn. App. 904, 720

P.2d 845, review denied, 107 Wn.2d 1006 (1986). In Fritsch, a juror in a

personal injury case told the other jurors that after he injured his foot and was

unable to jog for a month, an attorney told him a reasonable sum for his pain and

suffering was $1,000. The Supreme Court found juror misconduct because the

juror injected evidence from outside the record and it affected a material issue in

the case. Fritsch, 43 Wn. App. at 907.

       The fifth case is Halverson v. Anderson, 82 Wn.2d 746, 513 P.2d 827

(1973). In Halverson, a teenager sued for personal injuries suffered in an auto

accident. Only the question of damages was submitted to the jury. There was

no evidence that the boy's earning capacity had been impaired, but the jury

heard that he had an ambition to be a pilot and was studying to be a surveyor.

During deliberations, one juror told the others that pilots generally make $2,000

per month and retire at age 40 and civil surveyors earn $1,500 per month. The

                                          13
No. 70529-6-1/14




trial court granted a defense motion for new trial. The Supreme Court agreed

that the juror had committed misconduct by bringing in extrinsic evidence and

held that the trial court did not err in concluding that it influenced the jury's

decision to award substantial damages.

       The sixth case is Loeffelholz v. CLEAN., 119 Wn. App. 665, 82 P.3d

1199, review denied, 152 Wn.2d 1023 (2004). In Loeffelholz, a sheriff's deputy

and county sued a variety of defendants, including a citizen's group, for

defamation and malicious prosecution. The jury found for the plaintiff deputy as

to the defamation claim and awarded $240,000 ($60,000 per defendant). Juror

affidavits showed that the basis for the damage award was one juror's statement

that "'he could figure out how much public servants earned and estimated Mr.

Loeffelholz's average salary at $30,000.'" Loeffelholz, 119 Wn. App. at 679. The

trial court granted a new trial as to damages. This court affirmed the ruling,

relying on Halverson. The jury had not been instructed to consider loss of

earning capacity, and the salary and retirement information placed by the juror

before his fellow jurors "was wholly outside the evidence and not subject to

scrutiny by either party." Loeffelholz, 119 Wn. App. at 683.

       In Fritsch, Halverson, and Loeffelholz, evidence was deemed extrinsic

because it was outside the scope of what had been discussed in court. In each

case, a juror urged other jurors to consider assertions of fact that the disfavored

party had no opportunity to rebut. That is not the case here. The juror's

discussion echoed Bo Brusco's testimony about the liability the company would

                                           14
No. 70529-6-1/15




be exposed to as the result of hiring Morgan to work on a boat when he had not

passed a physical. The juror used his personal experience, not extrinsic

evidence, to evaluate information received in court about Brusco's treatment of

Morgan and Long's reaction to it.

       This case is most like Richards, in which parents brought a medical

malpractice action against the doctors who delivered their baby. The parents

alleged the delivery team was negligent in the care of their newborn, resulting in

severe neurological deficits. The defendants claimed the newborn's deficits were

caused before the birth. During voir dire, a juror disclosed that she had medical

training and worked with developmentally disabled children as an occupational

therapist. The jury returned a 10-2 defense verdict. After the verdict, the

plaintiffs brought a motion for new trial based on affidavits that the juror opined

during deliberations that the mother's illness at 20 weeks could explain the

infant's condition. The motion was denied. This court affirmed, concluding that

the affidavits did not establish that the juror brought extrinsic evidence into

deliberations. The court discounted the Richards' allegation that "the information

imparted by juror Geisler was highly specialized and was uttered in the vein of

being an expert." Richards, 59 Wn. App. at 274. What was more significant was

that "on voir dire juror Geisler's background was fully disclosed and the Richards

did not remove her from the jury." Richards, 59 Wn. App. at 274.

       Here, as in Richards, the juror's background was disclosed in voir dire. At

most, he stated in deliberations that he was unaware of any law that would

                                          15
No. 70529-6-1/16




permit a person with a prosthetic leg to work as a deckhand. This was not a

positive statement about the law, and it did not conflict with instructions given to

the jury by the court. Even though the information the juror imparted may have

been highly specialized and uttered in the vein of being an expert, it was his own

thought process and it inhered in the verdict.

       We conclude the trial court acted within its discretion by denying the

motion for a new trial.

       Affirmed.




WE CONCUR:




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