                                                                             FILED
                                                                        COURT OF APPEALS
                                                                             DIVISION II

                                                                       2015 FEB - 3          8 58
                                                                        STATE OF WASHINGTON

    IN THE COURT OF APPEALS OF THE STATE                                                            ON


                                          DIVISION II




 CHRISTOPHER BOYD,                                                         No. 45174 -3 -II


                                 Respondent,


        v.



 STATE OF WASHINGTON; DEPARTMENT                                     UNPUBLISHED OPINION
 OF SOCIAL AND HEALTH SERVICES; and
 WESTERN STATE HOSPTIAL,


                                 Appellants.


       Melnick, J. —   Western State Hospital (WSH) appeals the jury verdict and judgment against

it in Christopher Boyd'   s employment retaliation case.     It argues that the trial court erred when it


denied WSH' s CR 50 motion because some of the actions Boyd relied on were not adverse

employment actions and there was no causal connection between Boyd' s actions and the WSH' s

adverse employment actions.     WSH   also argues   that the trial   court erred   by   allowing Boyd to base
45174 -3 - II



                                                        bias theory. We hold that Boyd presented substantial
                                pawl




liability   on   the   cat' s          or subordinate



evidence of adverse employment actions and a causal connection to support a verdict in his favor.

The trial court correctly allowed Boyd to rely on the cat' s paw theory where he presented evidence

that a supervisor' s animus was a substantial factor in WSH' s decision to discipline him. We affirm

and award Boyd attorney fees on appeal.

                                                          FACTS


I.          SEXUAL HARASSMENT ALLEGATIONS


            Boyd is a registered nurse at WSH. Patricia Maddox was a supervisor in the ward adjacent

to Boyd'     s ward.      She   would cover    Boyd'    s ward when   his   ward supervisor was absent.   Initially,

Maddox treated Boyd affectionately.                She bought him t -shirts from her       vacations.   She would


corner Boyd in the nurse' s office and sit extremely close to him or position herself in a suggestive




1 Under the " cat' s paw" theory, the animus of a non -decision -maker who has a singular influence
may be imputed to the decision- maker. See, e. g., Staub v. Proctor Hosp., 562 U.S. 411, 131 S. Ct.
1186, 179 L. Ed. 2d 144 ( 2011).

                       The term " cat' s   paw" originated          Monkey and the Cat," by
                                                             in the fable, " The

            Jean de La Fontaine. As told in the fable, the monkey wanted some chestnuts that
            were roasting in a fire. Unwilling to burn himself in the fire, the monkey convinced
            the cat to retrieve the chestnuts for him. As the cat carefully scooped the chestnuts
            from the fire with his paw, the monkey gobbled them up. By the time the serving
            wench caught the two thieves, no chestnuts were left for the unhappy cat.



Julie M. Covel, The Supreme Court Writes A Fractured Fable ofthe Cat's Paw Theory in Staub v.
Proctor Hospital [ Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011)J, 51 Washburn L.J. 159 ( 2011).
In the workplace, the cat represents an unbiased decision -maker who disciplines an employee
unknowingly due to a supervisor' s bias, represented by the monkey. Edward Phillips, The Law at
 Work: Staub v. Proctor Hospital: The Cat's Paw Theory Gets Its Claws Sharpened, 47 Tenn. B. J.
     June, 2011), at 21.




                                                              2
45174 -3 -I1




manner.     Maddox     referred    to Boyd    as "[   h] er penis." 3 Report of Proceedings ( RP) at 257. Maddox

also made suggestive comments to Boyd while he installed heaters at her house.

          In April 2009, Boyd          confronted          Maddox       and     told her to leave him            alone.   Maddox


responded by telling Boyd that if he told anyone about the harassment, she would " make sure that

 he]   can' t work   in any   of   the 50 states."         8 RP   at   983.    After the confrontation, Maddox stopped


acting   affectionate      toward Boyd      and   became hostile.             Boyd did not immediately inform WSH of

Maddox' s behavior.


II.       INVESTIGATIONS AGAINST BOYD


          On December 26, 2009, Boyd delayed assessing a patient. Rod Bagsic, Boyd' s co- worker,

requested a patient assessment             from Boyd         at about    1: 00   A. M.    Boyd did not arrive immediately,

and Bagsic called again. Boyd answered the phone and impersonated another employee. Bagsic

asked where       Boyd     was, and   Boyd left       at   that point to      assess   the   patient.   Bagsic gave the patient

the requested medicine at 2: 20 A. M.


          Staff   reported   the incident to Maddox,              who reported         it to her    supervisor.     The supervisor


directed Paula Cook -Gomez, Boyd'                 s   ward    supervisor,      to investigate the incident.            Both Cook -


Gomez and Maddox collected witness statements and conducted interviews regarding the incident.

          During     the    investigation,      Cook -Gomez overheard Boyd make                            statements that     she


perceived as      threatening. Boyd had been discussing assault rifles with co- workers and the best

way to burn       a woman' s    body. He also demonstrated how to use a chef' s knife in an allegedly

threatening    manner.       Another       staff member       told Cook -Gomez that Boyd                 said, "[   T] hey may fire

me[,]    but they   will sure as    hell   remember me."          Ex. 94.


          WSH     assigned    Maddox to investigate Boyd'                s alleged       threats.    On January 21, 2010, as a

result of   the ongoing investigation, WSH                  reassigned     Boyd to       another ward.      He    was not allowed
45174 -3 - II



patient   interaction      during       his   reassignment.      WSH also reported Boyd' s conduct to both the


Department of Health and the police.


          During an e -mail exchange on January 22, 2010, Maddox told Cook -Gomez " I don' t trust

 Boyd]     about   anything      as     he is known to lie."       3 RP    at   349.   On January 26, 2010, Boyd told

Maddox' s supervisor that Maddox' s presence at his disciplinary meeting made him uncomfortable.

The supervisor e- mailed a Human Resources representative, who stated that Maddox could still


attend the meeting and WSH would explain her presence as a training exercise.

          At the   disciplinary         meeting, the      witness who overheard         Boyd say, "[   T] hey may fire me,

but they   will sure as     hell   remember me,"          told Maddox that Boyd' s comment related to apple cider


and she    did   not perceive      it   as   threatening. Ex. 23. Maddox discussed the witness' s " apple cider"

explanation with Human Resources but did not include it in the report she provided to WSH' s

management.        3 RP    at   358 -59.      Boyd asserted that his other comments were not meant as threats.


Instead, he said they related to conversations about a television show, military training, and being

careful with a knife while cooking.

          Cook -Gomez and Maddox reported their findings to the Management Resource Team.2

The Management Resource Team reviewed the investigations and decided to present both matters

to the Chief Executive Officer (CEO) and recommend that Boyd be disciplined.

          In October 2010, the CEO                 sent   Boyd   a "   Notice   of   Intent to Discipline."   Ex. 116.   In


December 2010, Boyd' s attorney sent a letter to WSH regarding his sexual harassment allegations

against    Maddox.         At that time, WSH decided to have David Rivera re- investigate all of the

allegations      against   Boyd.         First, Rivera limited his investigation of Boyd' s alleged threats to




2 The . Management Resource Team includes Human Resources representatives, an incident
management representative, the nurse executive, and sometimes nursing supervisors.


                                                                  4
45174 -3 -II




Boyd' s statement " they may fire me, but they will sure as hell remember me. "3 10 RP at 1426 -27.
After Rivera learned that the witness recanted her statement, Rivera closed his investigation


without examining any of Boyd' s other allegedly threatening statements.

            Then, Rivera        re- investigated    the   allegations   that Boyd      had failed to   assess a patient.   In


exploring this matter, Rivera relied, in part, on the statements and interviews prepared by Maddox

as   well    as   his    own    interviews     with   witnesses.      Rivera initially had difficulty scheduling an

interview with Boyd. WSH ultimately decided to not re- interview Boyd. It relied on the interview

conducted         by   Cook -Gomez       and   Maddox.      Based on Rivera' s findings, WSH concluded that the


original investigation was fair.


            On January 5, 2012, Boyd received a letter from WSH' s CEO suspending him for two

weeks without pay for failing to assess a patient and for impersonating a co- worker. On January

30, 2012, WSH'           s   CEO issued Boyd        a written reprimand      for making threatening        comments.   The


reprimand relied on Maddox' s report. The reprimand listed Boyd' s alleged comments, including

statements about the damage a chef s knife could cause, how to burn a woman' s body so it would

be unidentifiable, the use of sniper rifles and AK -47s, and how WSH may fire him but it will

remember          him.       WSH forwarded the            reprimand     to Boyd'   s   new   supervisor.   Although other


employees participated in the conversations about guns and burning bodies, only Boyd was

disciplined.


III.        PROCEDURE


            On March 19, 2012, Boyd filed a complaint against WSH under the Washington Law

Against Discrimination (WLAD),                    chapter 49. 60 RCW, alleging sexual harassment and retaliation.




3
    Initially Rivera misspoke when he testified as to what another LRN said, but corrected himself.
This quote        reflects    his   correction.
45174 -3 -II



CP   at   1.     WSH    moved   for summary judgment.         It argued that both the sexual harassment and


retaliation       claims   should   be dismissed.    The trial court granted WSH' s motion for summary

judgment regarding the sexual harassment claim but denied the motion regarding the retaliation

claim.




           The case proceeded to jury trial and at the close of Boyd' s case, WSH moved for judgment

as a matter of law under CR 50. It argued that four of the bases for adverse employment actions —


the investigation of Boyd' s threatening comments, his written reprimand, and the two transfers to

different       wards —were not      actionable.    It also argued that Boyd failed to show a causal link


between the protected activity and any adverse employment actions. Finally, it argued that it had

non -retaliatory reasons for investigating Boyd. The trial court denied WSH' s CR 50 motion.

           The trial court gave the following " adverse employment action" instruction over WSH' s

obj ection:


                      An adverse employment action is defined as an employment action or
           decision that constitutes an adverse change in the circumstances of employment.
           An employment action is adverse if it is harmful to the point that it would dissuade
           a reasonable employee from making complaints of sexual harassment or retaliation.
           An adverse employment action must involve a change in employment conditions
           that is more than an inconvenience or alteration of job responsibilities.

Clerk' s Papers ( CP) at 2160.


           The trial court gave the following " cat' s paw" instruction over WSH' s objection:

                    If a supervisor performs an act motivated by retaliatory animus that is
           intended by the supervisor to cause an adverse, employment action, and if that act
           is relied on by the employer and is a substantial factor in the ultimate employment
               action, then the employer is liable for retaliation.


CP at 2162.


               The trial court rejected WSH' s 17- question proposed special verdict form, which listed

several different alleged adverse employment actions. Instead, the trial court used a special verdict




                                                          6
45174 -3 -II




form that   asked whether "          the defendant       retaliate[      d]   against   the   plaintiff,"   and, if so, what is the


total amount of damages. CP at 2169 -70.

        The      jury   found that WSH had            retaliated against         Boyd    and awarded        him $ 173, 000. WSH


appeals.



                                                          ANALYSIS


I.      STANDARD OF REVIEW


        We review a trial court' s denial of a CR 50 motion for judgment as a matter of law de novo,


engaging in the same inquiry as the trial court. Schmidt v. Coogan, 162 Wn.2d 488, 491, 173 P. 3d

273 ( 2007).      Judgment as a matter of law is proper only when, viewing the evidence in the light

most favorable to the nonmoving party, substantial evidence cannot support a verdict for the

nonmoving party. Schmidt, 162 Wn.2d at 491, 493.

        We       review alleged errors           of   law in   jury      instructions de       novo.     Blaney v. Int' l Ass 'n of

Machinists & Aerospace Workers, Dist. No. 160, 151 Wn.2d 203, 210, 87 P. 3d 757 ( 2004).                                       Jury

instructions are proper when they permit the parties to argue their theories of the case, do not

mislead    the   jury,   and   properly inform the        jury     of applicable        law. Hue    v.   Farmboy Spray Co.,    127


Wn.2d 67, 92, 896 P. 2d 682 ( 1995).


        To establish a prima facie case of retaliation for a protected activity under the WLAD4, an

employee must show             that ( 1)   he   engaged   in   a   statutorily    protected     activity, ( 2) the employer took


an adverse employment action against the employee, and ( 3) there is a causal connection between


4
        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).




                                                                     7
45174 -3 -II




the employee' s activity       and   the   employer' s adverse   action. Estevez v. Faculty Club of Univ. of

Wash., 129 Wn.     App.   774, 797, 120 P. 3d 579 ( 2005); Scrivener            v.   Clark Coll., 181 Wn.2d 439,


446, 334 P. 3d 541 ( 2014).      If the employee establishes a prima facie case, then the employer may

rebut the claim by presenting evidence of a legitimate nondiscriminatory reason for the adverse

action.   Estevez, 129 Wn.      App.       at   797 -98; Scrivener, 181 Wn.2d   at   446.   The burden then shifts


back to the employee to show that the employer' s reason is pretext. Estevez, 129 Wn. App. at 798;

Scrivener, 181 Wn.2d      at   446.    Once " the record contains reasonable but competing inferences of

both discrimination     and      nondiscrimination, `        it is the jury' s task to choose between such

inferences. '   Estevez, 129 Wn. App. at 798 ( quoting Hill v. BTCIIncome Fund -I, 144 Wn.2d 172,

186, 23 P. 3d 440 ( 2001)) (     other citations omitted).       Here, WSH argues that Boyd failed to prove


that WSH took an adverse employment action and, even if he had shown adverse employment

actions, there is no causal connection between Boyd' s protected activities and any adverse

employment actions.



II.       ADVERSE EMPLOYMENT ACTIONS


          First, WSH argues that the trial court erred when it failed to limit Boyd' s claimed adverse


employment actions. Specifically, it asserts that the trial court erred when it denied WSH' s CR 50

motion arguing that some of the retaliatory actions Boyd alleged were not adverse employment

actions, gave an adverse employment action jury instruction that was contrary to law, and failed

to give WSH' s proposed verdict form.

          A.     CR 50 Motion


          WSH argues that the trial court erred when it denied WSH' s CR 50 motion to dismiss

because Boyd failed to         prove   that WSH took        an adverse employment action against        him.   We


disagree.




                                                             8
45174 -3 -II




         An adverse employment action involves a change in employment that is more than an

inconvenience or alteration of one' s job responsibilities. Alonso v. Qwest Commc 'ns Co., LLC,


178 Wn. App. 734, 746, 315 P. 3d 610 ( 2013).                         It includes a demotion or adverse transfer, or a


hostile work environment. Kirby v. City of Tacoma, 124 Wn. App. 454, 465, 98 P. 3d 827 ( 2004

 quoting Robel         v.   Roundup Corp.,        148 Wn.2d 35, 74          n. 24,    59 P. 3d 611 ( 2002)).         The employee


must show that a reasonable employee would have found the challenged action materially adverse,

meaning that it        would      have "'   dissuaded a reasonable worker from making or supporting a charge

of   discrimination. "' Burlington N. & Santa                  Fe Ry. Co. v. White, 548 U. S. 53, 68, 126 S. Ct. 2405,

165 L. Ed. 2d 345 ( 2006) ( quoting Rochon                    v.   Gonzales, 438 F. 3d 1211, 1219 ( 2006)). " Whether a


particular reassignment is materially adverse depends upon the circumstances of the particular

case,   and `   should be judged from the perspective of a reasonable person in the plaintiff' s

position. "'    Tyner       v.   State, 137 Wn.   App.    545, 565, 154 P. 3d 920 ( 2007) (          quoting Burlington N. &

Santa Fe   Ry.       Co., 548 U. S. at 71).


         The trial court correctly declined to determine as a matter of law that WSH' s actions were

not adverse employment actions.                   Washington courts look to .federal antidiscrimination law to


construe the WLAD and we are " free to adopt th[ e] se theories" which further the purposes of our

state statute.       Kumar        v.   Gate Gourmet Inc., 180 Wn.2d 481, 491, 325 P. 3d 193 ( 2014) ( quoting


Grimwood        v.   Univ. of Puget Sound, Inc., 110 Wn.2d 355, 361 - 62, 753 P. 2d 517 ( 1988)).                             Federal


law provides that context matters in analyzing the significance of any given act of retaliation

because "` [    a] n act    that   would    be immaterial in        some situations      is   material   in   others. "'   Burlington


N. & Santa Fe         Ry Co., 548 U.S. at 69 ( quoting Wash. v. Illinois Dep' t ofRevenue, 420 F. 3d 658,

661 ( 7th Cir. 2005)).             Accordingly, whether a particular action would be viewed as adverse by a

reasonable employee               is   a question of   fact   appropriate   for   a   jury.   See Burlington, 548 U. S. at 71-




                                                                      9
45174 -3 - II




73; McArdle          v.   Dell Products, L.P., 293 F. Appx. 331, 337 ( 5th Cir. 2008) ( " Whether a reasonable


employee would view the challenged action as materially adverse involves questions of fact

generally left for a jury to decide. ").

         Here, viewing the evidence in the light most favorable to Boyd, there is substantial

evidence   WSH             engaged   in   adverse employment actions.         See Schmidt, 162 Wn.2d at 491., 493.


Boyd presented evidence that WSH suspended him for two weeks without pay, issued a written

reprimand that contained a detailed list of his alleged threatening comments and disseminated it to

his supervisor, removed Boyd from his ward and from patient interaction, and reported him to the

Department       of       Health   and    the   police.   WSH argues that some of these actions were not adverse


employment actions; rather, they were " legitimate business decisions" that were disciplinary or

investigatory in nature. Appellant' s Br. at 24 -25 ( citing Kirby, 124 Wn. App. at 465 ( employment

events that were disciplinary or investigatory in nature did not constitute adverse employment

actions where there were mere inconveniences that did not have a tangible impact on the plaintiff' s

workload        or    pay)).       We express no opinion as to whether these employment actions, taken


individually,         constituted     adverse      employment actions    as   a matter of   law.   However, taken in


context, a reasonable jury could find that these actions, taken together, were materially adverse.

Boyd presented substantial evidence for the jury to find that these actions would have dissuaded a

reasonable worker from making a discrimination charge. See Burlington, 548 U.S. at 68.

         B.               Jury Instruction

         WSH further argues that the trial court'.s adverse employment action jury instruction was

contrary to law. The trial court' s instruction was:

                An adverse employment action is defined as an employment action or
         decision that constitutes an adverse change in the circumstances of employment.
         An employment action is adverse if it is harmful to the point that it would dissuade
          a reasonable employee from making complaints of sexual harassment or retaliation.


                                                                  10
45174 -3 -II




         An adverse employment action must involve a change in employment conditions
         that is more than an inconvenience or alteration ofjob responsibilities.

CP at 2160.. At trial, WSH objected to the instruction because the second sentence is derived from

federal case law.


         The trial court used language from the Supreme Court' s opinion in Burlington, 548 U. S.

53, a Title VII retaliation case, in the adverse employment action instruction. The Burlington court

held that " a plaintiff must show that a reasonable employee would have found the challenged


action   materially     adverse, `       which in this context means it well might have dissuaded a reasonable


worker    from making             or   supporting   a charge of   discrimination. "'    548 U.S. at 68 ( quoting Rochon,

438 F. 3d      at   1219) (   citations omitted).       Washington courts look to federal case law interpreting

Title VII to guide interpretations of the WLAD. Kumar, 180 Wn.2d at 491; see also Tyner, 137

Wn.   App.     at   565 ( citing Burlington, 548 U. S.            at   68);   Kirby, 124 Wn. App. at 465 ( citing federal

cases as guidance           for   determining whether      an event      is   an adverse employment action).   Therefore,


the trial court properly incorporated the Burlington language into its instruction and did not err.

          C.          Verdict Form


         Next, WSH argues that the trial court erred when it used a simpler verdict form and not

WSH' s 17- question proposed verdict form.5 This argument is based on WSH' s assertion that the

trial court erred by failing to limit the alleged adverse employment actions presented to the jury.

WSH      cites      Davis   v.    Microsoft   Corp.,    149 Wn.2d 521, 539, 70 P. 3d 126 ( 2003), to support its


argument. The Davis court stated that " where a general verdict is rendered in a multitheory case

and one of the theories is later invalidated, remand must be granted if the defendant purposed a




5 Boyd argues that WSH did not preserve an objection to the verdict form. We disagree. Although
WSH ultimately accepted the trial court' s verdict form, this was after WSH proposed and argued
for a different verdict form.



                                                                   11
45174 -3 -II




clarifying     special verdict   form."    149 Wn.2d        at   539.    But, as discussed above, the trial court did


not err when it allowed Boyd to present all of his alleged adverse employment actions to the jury.

Therefore, Davis is inapposite and this argument fails.


          Further, a trial court' s refusal to submit a special verdict form based on the facts of that


case is reviewed for abuse of discretion. State v. Lucky, 128 Wn.2d 727, 731, 912 P. 2d 483 ( 1996),

overruled on other grounds         by State   v.   Berlin, 133 Wn.2d 541, 947 P. 2d 700 ( 1997). A trial court


abuses its discretion when its discretionary decision is " manifestly unreasonable or based upon

untenable grounds or reasons."            Davis    v.   Globe Mach.      Mfg.     Co.,   102 Wn.2d 68, 77, 684 P. 2d 692

 1984) ( citing State    ex rel.   Carroll   v.   Junker, 79 Wn.2d 12, 26, 482 P. 2d 775 ( 1971)).                  Here, the


trial court stated it was " concerned" the special verdict form had " too many questions, that it' s

broken down too        much."     12 RP at 1828. The trial court made it clear that, in light of the facts of

this   case,   WSH'   s proposed   jury   form    was not "   something that        a    jury   could work with."   12 RP at


1832.     WSH'    s proposed     17- question     special verdict       form is   cumulative and       confusing.   Many of

the questions overlap with the jury instructions provided and require the jurors to answer the

questions out of order. Therefore, the trial court' s decision to not give WSH' s special verdict form

was reasonable and exercised on tenable grounds. The trial court did not abuse its discretion.

III.      CAUSAL CONNECTION


          WSH next argues that the trial court erred when it denied WSH' s CR 50 motion because

Boyd failed to provide evidence establishing a causal connection between his activity and WSH' s

adverse employment actions.            WSH asserts that there was no evidence that the decision makers

were aware of the sexual harassment claims until after WSH began the investigations against Boyd

and there was no evidence that Maddox was involved with the decision to discipline Boyd.

Although WSH is correct that it did not have notice of Boyd' s sexual harassment claim until after




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45174 -3 - II



it had started the investigations into Boyd' s conduct, the adverse employment acts commenced

after    Maddox threatened Boyd to            not report   her harassment   of   him.   He presented evidence that


Maddox' s actions were a substantial factor in the investigations and resulting discipline. Rivera' s

investigation did not break the causal connection between her animus and the adverse employment

actions.




            A] plaintiff bringing suit under RCW 49. 60. 210 must prove causation by showing that

retaliation was a substantial           factor motivating the   adverse employment      decision." Allison v. Hous.


Auth. of City of Seattle, 118 Wn.2d 79, 96, 821 P. 2d 34 ( 1991).                In Staub v. Proctor Hospital, 562


U. S. 411, 131 S. Ct. 1186, 1191, 179 L. Ed. 2d 144 ( 2011), the Supreme Court confronted the


problem where the official who made the decision to take an adverse employment action " has no

discriminatory animus but is influenced by previous company action that is the product of a like

animus     in   someone else."         There, the plaintiff, a member of the Army Reserve, was fired and sued

his employer under the Uniformed Services Employment and Reemployment Rights Act

 USERRA).            Staub, 131 S. Ct.       at   1190.   He alleged that his supervisor' s antimilitary animus

influenced his        employer' s      decision to terminate him. Staub, 131 S. Ct.       at   1190.   The Court held


that "   if a supervisor performs an act motivated by antimilitary animus that is intended by the

supervisor to cause an adverse employment action, and if that act is a proximate cause of the

ultimate employment action, then the employer is liable under USERRA." 6 Staub, 131 S. Ct. at

1194 ( footnotes omitted).


           The Court also stated that an independent investigation does not necessarily relieve the

employer        of   liability   for   an adverse employment action.        Staub, 131 S. Ct.     at   1193. "[   I] f the




6 We applied subordinate bias liability as it is articulated in Staub in City of Vancouver v. Wash.
Pub. Emp' t Relations Comm' n, 180 Wn. App. 333, 325 P. 3d 213 ( 2014).

                                                              13
45174 -3 -II




employer' s investigation results in an adverse action for reasons unrelated to the supervisor' s

original   biased    action ...          then the   employer will not       be liable." Staub, 131 S. Ct.        at   1193. " But


if the independent investigation              relies on     facts   provided   by the biased    supervisor —   as is necessary

in any     case   of cat' s -paw         liability —then the employer ( either directly or through the ultimate

decision [ ]      maker) will have effectively delegated the factfinding portion of the investigation to

the biased      supervisor."        Staub, 131 S. Ct. at 1193.


          Here, Boyd presented evidence of Maddox' s animus. He testified that, after he told her to


stop harassing him she became hostile and threatened to " make sure [ he] can' t work in any of the
50   states."     8 RP   at   983.    Subsequently, Maddox involved herself in investigating the complaints

against    Boyd.     Although Cook -Gomez was assigned to investigate Boyd' s failure to assess the

patient,    Maddox       collected        witness    statements       and   conducted      some   of   the interviews.      WSH


assigned     Maddox to investigate Boyd'                s   threatening     comments.       Maddox wrote in an e -mail to


Cook -Gomez that "[           she    didn' t] trust [ Boyd]       about   anything   as   he is known to lie."        3 RP at 349.


WSH      relied on    Maddox'        s   investigation      and   factfinding in disciplining        Boyd.   Therefore, a jury

could find that Maddox' s acts were a proximate cause of the adverse employment actions.


           Rivera' s additional investigations are not supervening causes. Rivera' s re- investigation of

Boyd' s failure to assess the patient•relied on facts provided by the biased supervisor, Maddox. At

the time of Rivera' s investigation, some witnesses could not clearly recall the events and instead

relied on the statements collected by and interviews Maddox conducted. And, Rivera did not re-

investigate Boyd' s threatening               comments.        Although Maddox' s report included several different


comments and the CEO' s reprimand mentioned the same comments, Rivera only investigated one

                                                  may fire          but they   will sure as   hell   remember me."        10 RP at
of   the alleged    comments — "           they              me,




1426.      He stopped his investigation after learning that the witness who reported this statement had



                                                                     14
45174 -3 -II




recanted.   The trial court did not err when it denied WSH' s CR 50 motion on a lack of a causal


connection.

IV. "      CAT' S PAW" INSTRUCTION


        Next, WSH          argues    that the trial   court erred when      it   gave   the   cat' s paw   instruction.   It


contends that Maddox did not act with discriminatory animus, Rivera' s investigation was a

supervening cause of any animus, and the instruction was inconsistent with the jury instruction on

retaliation. We disagree.


        First, Boyd presented evidence that Maddox acted out of animus. Before the investigations


began, she told Boyd that she would " make sure [ he] can' t work in any of the 50 states" after he

rejected   her   advances.      8 RP   at   983.   She also told Cook -Gomez, the other investigator, that she


knew Boyd        was a   liar. Maddox then reported Boyd' s conduct to management and assisted with


fact -gathering for both investigations             against   Boyd.    WSH relied on those facts in determining

Boyd' s discipline.


         Second, Rivera' s investigation was not a supervening cause. His review of Cook -Gomez' s

investigation     relied   on   information Maddox            prepared.   And he did not complete a review of


Maddox' s investigation. Instead, he stopped his review after determining that a witness to one of

the   alleged    threats   had      recanted.      Despite this lack of an independent investigation, WSH


reprimanded Boyd for all of his alleged threatening comments.

         Third, the "      cat' s    paw"    instruction was not inconsistent with the substantial factor

requirement.       The "   cat' s paw"      instruction   read, "   If a supervisor performs an act motivated by

retaliatory animus that is intended by the supervisor to cause an adverse employment action, and

if that act is relied on by the employer and is a substantial factor in the ultimate employment action,

then the employer        is liable for   retaliation."    CP at 2162. This instruction is consistent with the law




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on subordinate      bias    liability. "[   I] f   a supervisor performs an act motivated             by ...   animus that is


intended by the supervisor to cause an adverse employment action, and if that act is a proximate

cause of    the   ultimate employment action,               then the      employer   is liable." Staub, 131 S. Ct. at 1194


 footnotes      omitted).    Under Washington law, in order for the act to be a proximate cause, it must


be a substantial factor. City of Vancouver v. Wash. Pub. Emp' t Relations Comm' n, 180 Wn. App.

333, 356, 325 P. 3d 213 ( 2014) ( " a               complainant seeking to use the subordinate bias theory of

liability   must show       that the    subordinate' s animus was a substantial               factor in the decision "). The


trial court' s instruction properly informed the jury of the law. It required the plaintiff to prove that

the supervisor' s animus was a substantial factor in the decision. The trial court did not err when

it gave the cat' s paw instruction.


V.       PRETEXT


         Finally, Boyd met his burden of showing that WSH' s reasons for disciplining him were

pretext.     See Estevez, 129 Wn. App.                 at    798.     WSH presented nondiscriminatory reasons for

disciplining Boyd: he failed to timely assess a patient and he made inappropriate comments. Boyd

then presented evidence that the reasons were pretext. Maddox told Boyd she would retaliate, he


was the only employee disciplined for inappropriate comments even though other employees were

engaged in the conversations, and WSH disciplined him for making threatening statements even

though it had notice of Maddox' s bias and failed to conduct a thorough independent investigation.

Once "      the record contains reasonable but competing inferences of both discrimination and

nondiscrimination, `        it is the   jury' s    task to   choose       between    such   inferences. "'   Estevez, 129 Wn.


App.   at   798 ( quoting Hill, 144 Wn.2d              at    186).    Juries are empaneled to determine credibility of

witnesses and       to   weigh evidence.           We do      not    disturb those    on appeal.     State v. Camarillo, 115


Wn. 2d 60, 71, 794 P. 2d 850 ( 1990).                Here, the jury chose to believe Boyd. We affirm.



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VI.       ATTORNEY FEES


          Boyd   requests   attorney fees    under    RAP 18. 1   and   RCW 49. 60. 030.   RCW 49. 60. 030( 2)


states,




          Any person deeming himself or herself injured by any act in violation of this
          chapter shall have a civil action in a court of competent jurisdiction to enjoin further
          violations, or to recover the actual damages sustained by the person, or both,
          together with the cost of suit including reasonable attorneys' fees.

Because WSH'        s appeal   fails,   we award   Boyd attorney fees   on appeal.   Martini   v.   Boeing Co.,   137


Wn.2d 357, 377, 971 P. 2d 45 ( 1999).


          We affirm and award Boyd attorney fees on appeal.

          A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,

it is so ordered.




We concur:




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