                                                                        FILED
                                                                     JULY 14, 2020
                                                             In the Office of the Clerk of Court
                                                            WA State Court of Appeals, Division III




           IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
                              DIVISION THREE

JULIE M. ATWOOD,                            )
                                            )        No. 35872-1-III
                    Respondent,             )        (Consolidated w/ No. 35911-5-III)
                                            )
      v.                                    )
                                            )
MISSION SUPPORT ALLIANCE, LLC               )        UNPUBLISHED OPINION
and STEVE YOUNG, an individual,             )
                                            )
                    Appellants,             )
                                            )
      and                                   )
                                            )
DAVID RUSCITO, an individual,               )
                                            )
                    Defendant.              )

      SIDDOWAY, J. — Following a month-long trial, a jury found in favor of Julie

Atwood on her claims of gender discrimination and retaliation against her former
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


employer, Mission Support Alliance, LLC (MSA), and her former supervisor, Steve

Young. It awarded her $2.1 million in economic damages and $6 million for emotional

harm. The trial court awarded her tax-adjusted attorney fees and costs. MSA appeals the

judgment on the jury’s verdict and the trial court’s denial of its motions for a new trial or

remittitur.

       Whether the verdict should stand turns on aggressive positions taken by Atwood,

sustained by the trial court, on issues affecting both liability and damages. We agree that

the trial court committed reversible error, reverse the judgment on the jury’s verdict, and

remand for further proceedings consistent with this opinion.

                     FACTS AND PROCEDURAL BACKGROUND

       While MSA disputed much of Atwood’s evidence at trial, it does not contend on

appeal that her evidence, if believed by the jury, was insufficient to support the verdict on

liability. Liability is the controlling basis on which we reverse. Absent a sufficiency

challenge, there is no need to conduct a review of the evidence in the light most favorable

to Atwood.

       Since we find error, there is a need for us to look at the trial theories of both

parties, and the importance (or not) of the evidence that MSA contends was admitted or

excluded in error. We therefore describe both parties’ evidence and theories.

       MSA is a federal contractor that provides integration support for work being

performed by the United States Department of Energy (DOE) and other federal

                                              2
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


contractors to clean up the 586 square mile Hanford Site in Richland. In 2013, MSA had

almost 1,200 employees. One of its divisions, the Portfolio Management Division,

assisted DOE in integrating the work being performed by DOE’s many contractors.

Those familiar with the Portfolio Management Division often refer to it by the acronym

“PFM.”

       Julie Atwood was hired to serve as a project manager in PFM in February 2010.

Her offer letter, which she signed to signify her acceptance, stated that her employment

was at will, and could be terminated by her or the company “at any time for any reason,

with or without cause or advance notice.” Ex. 41, at 2.

       On September 19, 2013, Atwood was notified that her employment by MSA was

being terminated. A letter presented to her at that time attributed her discharge to

“disregard to management’s verbal and documented instructions” and “a consistent

unacceptable pattern and failure to abide by the Company’s Standards of Conduct.”

Ex. 13. Atwood was surprised and upset on learning of the decision. She refused to sign

the letter of termination, but did sign a substitute letter of resignation.

       Eighteen months later, on March 10, 2015, Atwood filed a charge of

discrimination with the EEOC,1 alleging gender discrimination, retaliation, and disparate

unfavorable treatment of female employees. She accused MSA of discrimination and

retaliation taking place in September 2013, when it terminated her employment, and in

       1
           The United States Equal Employment Opportunity Commission.
                                               3
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


March 2014, when she alleged it caused her name to be removed from a bid for a federal

contract submitted to DOE by Longenecker & Associates.

       Atwood’s charge of discrimination alleged she had received consistently positive

employment reviews and that shortly before she was fired, MSA’s investigation of

discrepancies in her accounting for work time “cleared [her] of all allegations.” Clerk’s

Papers (CP) at 9513. She charged that she was nonetheless fired and that MSA personnel

told DOE senior management “that I was discharged because of time accounting

discrepancies,” something that “has damaged my reputation and continues to affect my

ability to gain employment.” Id.

       MSA’s response to the EEOC denied ever stating that its decision to terminate

Atwood’s employment was the result of time card impropriety. It told the EEOC that the

company chose to end the employment relationship with Atwood

       after she exhibited a pattern of failing to abide by requests of her supervisor
       regarding her whereabouts during work hours, failing to provide advance
       notice of leave, and having a practice of using her relationship with a DOE
       client to avoid and/or circumvent her supervisors’ plans and/or directives.

Ex. 16, at 1. As for Atwood’s claim of bid interference, MSA provided the EEOC with a

statement from Longenecker’s COO2 that MSA had nothing to do with her application or

failure to be placed in an assignment with DOE.




       2
           Chief operating officer.

                                              4
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


       Atwood filed suit against MSA and Young in August 2015. By the time of trial,

she claimed constructive discharge in violation of public policy, retaliation for opposing

discrimination, and constructive termination substantially motived by her gender. She

alleged that Young had aided and abetted the statutory violations. In answering her

complaint, MSA and Young denied liability and claimed to have had legitimate, non-

discriminatory reasons for terminating her employment.

       During discovery, MSA asserted attorney-client privilege and instructed witnesses

not to answer questions about a September 19, 2013 meeting at which MSA’s then-

president and general manager, Frank Armijo, made the decision to discharge Atwood.

Its claim of privilege was upheld by the trial court. In ruling on motions in limine, the

trial court ruled that having claimed the shield of privilege for the meeting, the MSA

lawyers and management employees who were present would not be permitted to testify

to discussion at the meeting as support for nondiscriminatory reasons for Atwood’s

discharge.

                                           TRIAL

       The case proceeded to a month-long trial in September 2017. Armijo, who had

accepted a position with another company and moved out of state, was not called as a

witness. The reasons given by MSA for discharging Atwood were in evidence, however,

through Atwood’s testimony and MSA’s response to Atwood’s EEOC complaint, which

Atwood offered as exhibit 16. They were also reviewed in Atwood’s closing argument.

                                             5
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


       Atwood called 24 witnesses in her case in chief, MSA called 17 witnesses in the

defense case, and Atwood called 3 rebuttal witnesses. Well over 100 exhibits were

admitted. On the issues that prove dispositive the following evidence was presented,

although additional detail is provided in the Analysis section of this opinion.

       Before becoming employed by MSA in 2010, Atwood had worked for the

Washington State Department of Ecology and for private companies handling solid and

hazardous waste management issues. Four of her former supervisors testified at trial to

her good work and work ethic.

       In March 2012, Armijo hired Young, who was then the mayor of the city of

Kennewick, to serve as vice president of PFM. Young had spent his working career in

the nuclear industry. In 2008, at a time when he operated a consulting business and was a

subcontractor to DOE, he had become a member of the Kennewick City Council. After

being elected mayor in 2010, he shut his consulting business. Shortly thereafter, Armijo

hired him for a 90-day project that was extended a couple of times. Young accepted the

full-time position of PFM vice president in March 2012. He thereafter consistently

recorded 56 to 60 hours of work a week: 40 for MSA and 16 to 20 hours for mayoral

work for the city of Kennewick.

       Once Young was hired, Atwood reported directly to him. Young’s first

performance review for Atwood, which covered the period from July 2011 through June

2012, was generally positive. Some employees in PFM perceived friction in Atwood and

                                             6
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


Young’s working relationship, however. Several believed that Atwood did not support

Young’s role as vice president of the division. Young felt that there were times where it

seemed that he “was not important enough for [Atwood] to communicate with.” Report

of Proceedings (RP) at 3782.

      2012 Anonymous Complaint and Investigation

      In September 2012, MSA received an anonymous complaint about Atwood

through its Employee Concern (EC) Program. The EC Program was described at trial as

a whistleblower protection-type program that DOE requires of all of its contractors. DOE

contracts dictate that “employee concerns” reported to a contractor under the program be

investigated within certain time frames and be documented in particular ways.

      At MSA, the EC Program was carried out by the office of the president and was

supervised by Chris Jensen, the senior director of independent oversight. Jensen has a

law enforcement background. His function within the president’s office was independent

of MSA’s other line organizations and included internal audit and risk management

functions in addition to the EC Program.

      The employee concern about Atwood, dated September 19, 2012, said that

Atwood

      has created a hostile work environment through intimidation tactics,
      bullying, and her influence with Jon Peschong of DOE/[Richland]. Julie
      has openly bragged about her influence with DOE, and her ability to have
      people removed from their jobs. Julie is often unaccountable at work,
      saying she is in the 200 Area at meetings, when she is actually someplace

                                             7
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


       else. Julie arrives to work at 9 am and leaves around 4 very regularly. In
       addition, she often calls in “sick” but charges a full day of work as she is
       working from home. This has been an ongoing issue with other employers
       at [sic] she has had at Hanford. . . .

       Currently, Julie is openly using her influence with Jon Peschong of DOE to
       retaliate against MSA Senior Management in response poor performance
       [sic] feedback that she disagrees with.

Ex. 10A at 2. The author did not sign the complaint, expressing “fear that Julie will

affect my ability to continue employment with MSA.” Id.

       At the time of the employee concern, Wendy Robbins was MSA’s EC Program

manager, reporting to Jensen. Robbins interviewed Young, who told her that he heard

that Atwood was sometimes not where she was supposed to be during work hours, could

be difficult to get a hold of, sometimes called in sick but recorded the day as a workday,

and had threatened people in PFM. He told Robbins he nonetheless gave Atwood a

“stellar” performance appraisal in June 2012 “based on [her] delivery of quality products

on time.” RP at 2500.

       Young also told Robbins that Atwood had “endeared herself to a couple of DOE

representatives which [made] it difficult for him to take action.” RP at 2493. Young was

particularly concerned about Atwood’s friendship with Jon Peschong, the deputy to

Jonathan Dowell, one of DOE Richland Operations’ assistant managers. Young and

Peschong testified at trial to an unpleasant encounter the two had in August 2012, after

Young asked Peschong to get additional budget authorization to cover Atwood’s salary,


                                             8
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


failing which Young might terminate her employment. Young claims that at the meeting,

Peschong had an internal MSA budget record on which he had highlighted three of

Young’s staff, telling Young they were the personnel Young should get rid of. Because

Young felt sure that Atwood must have retrieved the budget record from a locked shred

bin and provided it to Peschong (something she denied), he required her to relinquish her

key to the bin.

        Peschong’s version of the meeting was that Young told him he was going to get

rid of Atwood unless Peschong funded her and Peschong cut the discussion off, saying it

was “inappropriate to talk about that.” RP at 1273. He testified that he did tell Young

that he had too much of his budget “sitting in your front office.” Id. He denied that the

document to which he referred in the meeting was an internal MSA record.

        Robbins ultimately did not complete an investigation of the 2012 complaint. A

November 28, 2012 entry in her “Record of Events,” a standard EC Program

investigation time line, states that management was aware of issues with Atwood before

the employee concern was filed and was working to address them. Atwood was not told

about the employee concern or the investigation, and learned of them only after filing

suit.

        According to Management, Continuing Issues

        Atwood admitted that Young frequently communicated, orally and in writing, his

expectation that his employees keep him posted on their whereabouts on work days. She

                                             9
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


heard from others that Young occasionally had trouble locating her. She agreed there

were times she was late or missed meetings without giving prior notice. But Atwood

testified she had committee work that required her to leave the office often, and her

practice was to leave a note on her door with her contact information so people knew

where she was and could e-mail or phone her if they needed to reach her.

       Between 2012 and 2013, Atwood occasionally was late to work without giving

advance notice and sometimes gave notice that she was going to be late after the work

day had already started.

       DOE clients testified that they did not have difficulty contacting Atwood,

however. They testified to being very happy with her work.

       A Violation Deemed Insubordinate, and a New Anonymous Complaint

       Early Thursday morning, August 1, 2013, Lynn Tanasse, a PFM employee who

reported to Atwood, e-mailed Young, two of his staffers, and other employees who

reported to Atwood an “FYI” on “Status on Julie.” Ex. 212. The e-mail stated, “Here is

a text message I received from her yesterday at 5:30 p.m. This is all I know. . .” Id.

Atwood’s forwarded text message said:

       It will sound like I made this up - After my apt flooded (for the 3rd time) I
       left a little early to let people in to fix it, I got a call from my sister inviting
       me last minute to go to Malaysia to be on set while they film a NYC
       disaster espionage film. It turned into a real offer later in evening so I said
       yes and sent you all an email from Airport. I will be out today and
       tomorrow, was already off Friday and mon Tues. I followed up an [sic] all


                                                10
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


       emails and moved only two things that were not time critical. Went over
       progress and everything is making its way to completion as planned. I’m
       enroute to Kuala Lumpur rt now. Once in a lifetime op w sister, I’ll be
       doing work while there Steve - re abstract, I’m drafting one for review.

Ex. 213.

       According to Young, he had no advance notice from Atwood that she would be

away from work. By the time of her text message to Tanasse, that amounted to four days

on which, according to him, Atwood failed to appear for work without notice. Young

testified that he considered it insubordinate for Atwood to leave without approval and to

fail to report to him directly. Within an hour of receiving the forwarded text message,

Young sent it along to two employees in MSA’s human resources (HR) department,

Cynthia Protsman and Susan Hiller, and to Jensen. Protsman was the member of the HR

business partner staff assigned to support Young. Young’s transmittal of the message

stated, “This is for our records. We received no contact from Julie until late yesterday. I

still have received nothing from her.” Ex. 212.

       Later in the day, Young sent Atwood an e-mail stating he had received her

message to Tanasse, that policy did not permit her to work remotely, and that he would

report her time out as furlough time. He told her in the e-mail to “come see me when you

get back” and copied the e-mail to Protsman. Ex. 166B.




                                             11
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


      Atwood returned to work on August 12. Sometime on or after the day of

Atwood’s return, another anonymous complaint mentioning Atwood was received by

MSA. It was typewritten and was dated August 12. It said:

      I want to mention a problem in Portfolio Management that is getting close
      to Hostile Work Environment or is already there.
      Julie Atwood was gone from work for two weeks without staff or the
      manager knowing where she was or when she would get back to work.
      (Others in Portfolio Management have to tell the managers even when they
      will arrive to work late or go to see a Doctor during the day. Vacation time
      is approved before vacation is taken and work is taken care of.) This is a
      double standard and everyone can see that.
      It is her influence with her DOE leader that probably accounts for the
      different work treatment she gets. And that is not fair to others who do the
      work and follow the rules in place.
      The other staff is required to work harder to cover her work, because it is at
      the end of the work year when so many things are due to complete.
      She did the same kind of thing last year with an elective “medical” issue.
      No plans made in advance and she abused that all year long.

Ex. 215.

      Following receipt of this complaint and beginning with a meeting that appears to

have taken place on August 22, the parties’ versions of events leading up to the decision

to discharge Atwood diverge. Prescient witnesses included a number of MSA employees

working in two chains of command. The following is an partial organization chart that

depicts the relationship of the principal MSA employees involved in reviewing Atwood’s

employment between the time the 2013 anonymous complaint was received and the

decision to discharge Atwood was reached:

                                             12
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.



          Office of Independent Oversight,            Office of the President,
           Chris Jensen, Senior Director                  Frank Armijo



                 Wendy Robbins,                        Chief Operations Office,
                EC Program Manager                         Dave Ruscitto




                                               Todd Beyers,
                                      Vice President, Human Resources


  HR Services and Development                   Benefits                             Labor Relations
     Juliet Rohrer, Manager                                                       Mary Murphy, Director
                                              23 employees




   17 employees. Among them                                                      6 employees. Among them is:
             are:
                                                                                 HR Principal/EEO/Diversity
       Business Partners                                                             Christine DeVere
     Julie Lindstrom, Lead

     Cindy Protsman and 2
        other employees


       Staffing Services
       Kadi Bence, Lead

    Susan Hiller and 5 other
          employees

See, e.g., Exs. 1B and 25.

       Before we turn to the parties’ competing versions of events, we provide a time line

of events between August 22 and September 19 that are largely undisputed. A meeting

                                              13
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


was held on August 22 that began with HR business partner Protsman; her client, Young;

and the HR Staffing Services lead, Kadi Bence. Christine DeVere, who was MSA’s

equal employment opportunity officer, joined the meeting in progress. DeVere

announced at that meeting or on the following Monday that she would be investigating

the anonymous complaint of a hostile work environment.

      On August 27, Young met with Atwood to counsel her that she had violated his

directives to be onsite and available or apprise him of her whereabouts. He followed up

before lunch with an e-mail, saying, “I want to remind you of the policy I had established

for PFM:”

      1.     If you leave the workplace during normal work hours please send me
      an email or you can text me[. . . ]. Please let me know the time you will be
      leaving and the approximate time of your return. If you must leave quickly
      due to an emergency please let me know as soon as possible.
      2.     All PTB[3] must be approved by me in advance. Just a reminder that
      only I can approve PTB.
      As you remember these rules were established early in my tenure as Vice
      President and it is important that all employees comply.

Ex. 222. Young forwarded a copy of this e-mail to Protsman. He also e-mailed

Bence to let her know that he met with Atwood and “reiterated the rules.” Ex. 22.

      On August 28, DeVere conducted her first interview of a PFM employee in

connection with her hostile work environment investigation. A meeting was then

scheduled for September 5 for DeVere and Protsman to meet with Young. At the

      3
          PTB was explained at trial as vacation time.
                                             14
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


meeting that took place in Young’s office, Young told the women he intended to tender

his resignation to Armijo. He proceeded to do so, but Armijo did not accept it.

      That afternoon, DeVere received a call from her boss, HR Vice President Todd

Beyers, who asked “what the heck was going on” and told her that Young felt she was

threatening him. RP at 1870. He told DeVere to cease and desist her interview process.

      Also on the afternoon of September 5, Young asked his chief of staff to assemble

his lead employees for a meeting. Atwood could not be found. Once the other leads had

gathered, he told them he was being investigated and they should cooperate.

      Atwood learned she had missed the meeting and sent Young an e-mail the next

day to say that she had been in the “PACE” (later described as a high-tech conference

room) when he called the leads to his office. She added, “No one let me know, or sent

email or text or I would’ve excused myself and come up.” Ex. 9. Young’s only reply to

Atwood was, “‘A complaint has been filed against me, please cooperate with the

investigators and answer their questions honestly.’” RP at 2615.

      On September 9, Atwood delivered material to Peschong’s office and he told her

she needed to speak with Dowell. Atwood went to Dowell’s nearby office, where he told

her he had heard from the deputy manager of DOE Richland Operations, who heard from

MSA COO Dave Ruscitto, that she was being investigated for time card fraud. Atwood

told Dowell it was not true. She then went looking for Young. When she found Young,



                                             15
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


she asked if the investigation being conducted was about her, and he said “No, it’s about

me.” RP at 2858.

       Early on the morning of September 12, there was a meeting between Beyers,

Young, Jensen, and Ruscitto to review the situation with Atwood. E-mails, documents,

and notes provided by Young and his staff were reviewed, and notes were made on a

white board that included a history of incidents, beginning with February 2012, when

Young contended Atwood failed to comply with his directives. At the conclusion of the

meeting, Jensen had his secretary transcribe the notes from the white board. Many of the

incidents identified in the September 12 meeting were later cited (along with others) in

MSA’s response to Atwood’s EEOC complaint as examples of her failure to abide by

Young’s directives. The transcribed record of the white board notes was admitted at trial

as exhibit 221.

       A “Separate bullet information” section of the white board record contained what

Jensen testified was a summary of their review of the documentation:

             Consistent failure to submit accurate and timely timecard
             Numerous absences without supervisor authorization
             Consistent pattern of period of time in work day when nobody
              knows where she is

Ex. 221. Jensen testified that coming out of the meeting, no decision had been made with

respect to Atwood’s employment because investigation of the recent anonymous

complaint had not been completed.


                                             16
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


       Later that day, Jensen and Beyers met with Robbins and DeVere and directed

them to conduct a joint investigation into the anonymous complaint. Jensen told the

women that “[Robbins] would look at any special treatment or time-charging anomaly,

and . . . DeVere would continue on parallel paths with [Robbins] with her investigation

about hostile work environment.” RP at 3872. Robbins and DeVere were asked to make

the investigation a priority, with a goal of wrapping it up in the following week.

       Robbins and DeVere conducted joint interviews of 10 MSA employees from PFM

and 2 subcontracted employees on September 16 and 17. Eight of the interviewees said

they had not witnessed special treatment, 2 said they believed Atwood received special

treatment of time off approval exemptions and used her relationship with DOE managers

Peschong and Dowell to avoid being held to the same standards of conduct, and 1 of the

subcontractors told them Atwood kept employees notified of her whereabouts and time

off.

       Atwood was interviewed by DeVere and Robbins on September 16.

       On September 17 or 18, Robbins and DeVere provided Jensen and Beyers with a

briefing on the investigation results to date.

       On September 19, Robbins followed up with some employees on her own because

DeVere said she was occupied with an unrelated audit. One follow-up was with Atwood,

who had been unable to provide details about her notice and contact during her Malaysian



                                                 17
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


trip. On September 19, Robbins was directed to pull Atwood out of a meeting and firm

up her time line of contact.

       Robbins’s and DeVere’s conclusions reached following the investigation into the

anonymous concern were that there was no evidence of time charging violations, special

treatment, or hostile work environment.

       After Robbins completed the September 19 follow-up meeting with Atwood,

Atwood was told she needed to go to Beyers’s office. When she arrived, she was taken

to a conference room to meet with Beyers; also present was one of MSA’s in-house

lawyers. Beyers provided her with the letter notifying her of the company’s decision to

terminate her employment, which he asked her to sign to acknowledge receipt. Rather

than sign the termination letter, she signed a letter of resignation.

       The parties’ disagreement about events occurring on and after August 22 explain

their divergent trial theories.

       Atwood’s Trial Theory

       We summarize Atwood’s evidence in support of her trial theory.

       Christine DeVere, whose legal name at the time of trial was Christine Moreland,

left MSA’s employ in 2014. (For clarity, we refer to her at the time of trial as DeVere

Moreland.) DeVere Moreland testified that she was invited by Protsman to the meeting

that took place on August 22 because Protsman had received an anonymous complaint

that Young was creating a hostile work environment. According to DeVere Moreland, it

                                              18
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


was not the anonymous concern dated August 12 that is reproduced above. DeVere

Moreland testified that the first time she ever saw that document was after litigation

started.

       DeVere Moreland testified that the concern she saw was brought to the August 22

meeting by Protsman, who showed it to her and Young. It was only a couple of lines

long, said “Anonymous” at the top, and accused Young of creating a hostile work

environment by treating some of his employees differently—and it did not mention

Atwood. Atwood did not offer a copy of the complaint described by DeVere Moreland at

trial. DeVere Moreland testified she never obtained a copy from Protsman.

       After reviewing the anonymous complaint, DeVere told Young at the August 22

meeting that she would need to interview everyone in his department. She described

Young as cooperative and seeming to understand.

       DeVere Moreland testified that when she and Protsman next met with Young on

September 5, he told the two women he had spoken to two of his staff who believed he

was creating a hostile work environment, so he was going to make it easy for them and

resign. He also told them he thought the anonymous complaint was probably from

Atwood. DeVere Moreland described Young as calm and professional during the

meeting.




                                             19
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


       DeVere Moreland conceded that Beyers called her later that afternoon and told her

that Young felt threatened by her interview. Beyers was irritated and told her to stop her

investigation.

       On the afternoon of September 12, DeVere and Robbins were asked to meet with

Jensen and Beyers, who directed the women to complete a joint investigation of the

anonymous concern with Robbins as lead, and with DeVere’s role being to look into the

alleged hostile work environment. DeVere Moreland testified that she asked Beyers if

the anonymous concern was the one he told her to stop investigating and he said yes, so

she had no knowledge of a different, longer complaint that concerned Atwood.

       According to DeVere Moreland, Atwood told them when interviewed that Young

treated her differently because she was a woman. DeVere Moreland could not recall

specifics. She identified exhibit 20 as her handwritten notes taken during the

investigation that were produced by MSA. They included a page and a half of notes of

the September 16 interview of Atwood.

       Her notes of Atwood’s interview stated, “Steve does treat her differently, but not

as a favorite—can see in his actions.” Ex. 20B at 9 (unnumbered). Her notes do not refer

to gender discrimination or to any examples of disparate treatment. DeVere Moreland

testified that this is because the notes produced by MSA are incomplete.

       DeVere Moreland agreed that “the majority” of her and Robbins’s interview of

Atwood was Robbins asking questions about time cards, absences, and related policies.

                                             20
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


RP at 2085. She testified that during the timekeeping discussion, Atwood said

“something about looking at [Young’s] calendar to see if he was doing City of

Kennewick work on MSA time.” RP at 2085. She testified this is reflected in her notes,

which state, “His time accounting and work w/ city.” Ex. 20B at 9.

      Atwood testified that she gave DeVere and Robbins a number of examples of how

Young treated women differently from men. She testified to telling them about two

sexist comments Young had made: he asked his female chief of staff, Linda Delannoy, if

a prescription bottle was birth control or “[m]ean-a-pause” pills and commented about a

male employee having a standing desk as “so gay.” RP at 2863-64. She said she felt

excluded from activities and meetings, such as charity events. She told them Young had

questioned the competence of a female DOE manager.

      Atwood testified that when Robbins turned the subject matter of the interview to

questions about Atwood’s time reporting she was confused, because she was not aware

any complaint had been made about her. Atwood testified that she told them that if they

were going to look at her time, they better look at Young’s, because he was doing city of

Kennewick work on MSA time. She defended her action in accepting the invitation to

Malaysia, stating that all PFM employees had been notified they needed to schedule

furlough time and she had bracketed time in late July and early August when she

anticipated possibly taking furlough.



                                             21
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


      DeVere Moreland testified that at the “status update” she and Robbins gave

to Beyers and Jensen on September 17 or 18, Robbins told Beyers and Jensen that

Atwood suggested that they look at whether Young was doing city work on MSA time.

RP at 2088.

      Atwood’s theory about the real reasons for her discharge was based in particular

on (1) DeVere Moreland’s testimony that on September 5, Young expressed his belief

that the complaint against him was made by Atwood; (2) Atwood’s testimony that when

interviewed, she accused Young of gender discrimination; and (3) Atwood’s and DeVere

Moreland’s testimony that Atwood told them on September 16 that they should look at

whether Young was doing city work on MSA time, and DeVere Moreland’s testimony

that Robbins passed that information along to Beyers and Jensen on September 17 or 18.

It was Atwood’s theory that because Young’s position as Kennewick mayor was useful to

MSA, Armijo and his team became concerned that she would press her charge that

Young was committing time card fraud. On the basis of that evidence, Atwood claimed

she was discharged in retaliation for MSA’s and Young’s mistaken belief that she filed

the complaint of a hostile work environment, and because, when interviewed, she

accused Young of disparate treatment and of violating the False Claims Act4 by billing

the federal government for time spent on city business.



      4
          31 U.S.C. §§ 3729-3733.
                                             22
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


       Her discrimination claim was based on her evidence of sexist comments and

exclusion from meetings, her evidence of four “comparators” who were treated more

favorably than her (discussed below), and the testimony of Sandra Fowler, a former lead

counsel for MSA, whose testimony about her own discriminatory treatment by Armijo

and other male managers was admitted under ER 404(b).

       MSA’s Trial Theory

       We summarize MSA’s evidence in support of its trial theory.

       MSA’s trial theory was that Young had a longstanding and clearly communicated

policy that his employees had to be on-site, on time, and locatable. If they could not be,

they needed to let him know in advance or as soon as possible. MSA contended that

Atwood had frequently been noncompliant, and her two-week unannounced absence

before and during the travel to Malaysia was viewed by Young as insubordinate.

       It contended that even before learning about the new anonymous complaint,

Young sought help from HR staff on counseling Atwood about her failure to comply with

his policies. HR Staffing Services lead Kadi Bence testified that Young mentioned his

problem with Atwood in a meeting with her and Susan Hiller. The August 22 meeting

was arranged to counsel Young on taking disciplinary action against Atwood.

       MSA contends there was only one anonymous complaint in 2013—the one

reproduced above—and that Protsman gave a copy to DeVere. Copies of the August 12

complaint were admitted at trial as exhibits 215 and 414B and bear a handwritten

                                             23
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


notation, “Received by EEO on 8/22/13,” which MSA claims is DeVere’s handwriting.

No other trial witness claimed to have seen the several-line complaint against Young that

DeVere Moreland described. And e-mails purporting to be written by DeVere and sent

from her MSA e-mail account to Robbins or Beyers on August 26, August 28, and

September 5, discuss Atwood as a subject matter of the anonymous complaint,

characterize the issues with Atwood as a “management problem,” and disparage Young’s

concern about Atwood’s influence with DOE. DeVere Moreland claimed at trial that

those e-mails, some of which bear puzzling times,5 must have been created by someone

else. She testified they were not written by her.

       MSA contends that Protsman invited DeVere to sit in on the August 22 meeting

because of the anonymous concern’s statement that problems with Atwood were “getting

close to Hostile Work Environment or is already there.” Ex. 215. It contends that

DeVere Moreland was aggressive toward Young during the August 22 meeting, causing

him concern about her objectivity. Young testified that at the end of the August 22

meeting, DeVere Moreland told him the Atwood situation revealed “a manager problem.”

RP at 2564-65. Bence’s recollection of the August 22 meeting is that DeVere had more




       5
         E.g., Exhibits 26B and 227 include e-mails from DeVere that bear transmission
dates and times of 3:13:15 a.m. on August 27, and 12:33:53 a.m. on August 29,
respectively. The same e-mails are included in other exhibits as having been transmitted
at 8:13 p.m. on August 26, and 5:34 p.m. on August 28, however. See Exs. 219 and 347.

                                             24
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


to say, and was rude and disrespectful of Young, at one point telling him, “There is no

need to name drop here.” RP at 3692.

      Young did not know DeVere well, but he had seen her socializing with Peschong

on two occasions, and her apparent friendship with Peschong concerned him. DeVere

Moreland acknowledged at trial that she had worked with Peschong years earlier, that as

followers of the local hockey team, they “shared hockey in common,” and that he had

served as a personal reference for her. RP at 2346.

      Between August 26 and September 5, DeVere and others communicated with

Robbins about the new anonymous complaint because it was similar to the complaint

Robbins had investigated in 2012. For a time, Robbins recorded these communications

in the record of events for the anonymous 2012 complaint. An entry on August 28, 2013,

records Robbins meeting with DeVere “to discuss a new anonymous concern received by

HR that alleged a hostile work environment in the Portfolio Management group as a

result of Atwood’s special treatment and relationship with DOE.” Ex. 11.

      After DeVere began her and Protsman’s September 5 meeting with Young by

saying, “I have some questions for you, I’m doing an investigation,” Young became upset

and told DeVere, “I’ll resign before I allow you to investigate me.” RP at 2566. He

testified that he viewed DeVere’s relationship with Peschong as creating a conflict of

interest and it bothered him that “nobody’s told me what I’m being investigated for.”

RP at 2568.

                                             25
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


       Protsman testified that during the September 5 meeting with Young, “It appeared

[DeVere] was encouraging him to resign.” RP at 3599. MSA suggested DeVere did

want Young to resign, pointing to an e-mail that DeVere sent to Robbins shortly after the

September 5 meeting. Asked by Robbins how the meeting with Young had gone,

DeVere responded, “Meeting went well. Actually better than I anticipated.” Ex. 232.

       Meanwhile, Young went see Armijo and angrily told him that if he was going to

be investigated, he was entitled to know what he was being investigated for. He

discovered that Armijo knew nothing about an investigation and told him to calm down.

Armijo told Young he would look into it.

       Jensen testified that Beyers told DeVere to stop her investigation after Jensen

learned of the anonymous complaint, became aware of problems Young was having

managing Atwood, and was told that the complaint was being investigated by DeVere.

Jensen felt that Robbins, as the EC Program director, should be investigating the

allegations of special treatment and any time-charging issues. Beyers and Jensen spoke

with Ruscitto, and the three agreed that responsibility for the investigation should be

divided between DeVere and Robbins, who would conduct joint interviews.

       Robbins testified that it was at the September 12 meeting with Beyers, Jensen, and

DeVere that she first received a copy of the August 12 anonymous complaint. She

presumed “with a high level of confidence” that DeVere had the same anonymous



                                             26
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


complaint that she had. RP at 1749. Robbins opened a new EC Program file, making her

first entry on September 12.

       Robbins testified that when interviewed on September 16, Atwood told her and

DeVere that Young had taken away her role as buyer technical representative and

reduced other roles and responsibilities, and she felt retaliated against. According to

Robbins, Atwood did not attribute the reduction in her role to the fact that she was a

woman, however. Like DeVere’s notes of the September 16 interview of Atwood,

Robbins’s notes of the interview do not refer to any claim of gender discrimination or to

any of the examples Atwood claims to have given. Robbins’s September 17, 2013 entry

in her record of events says of Atwood’s interview, “Atwood stated that she does receive

‘special treatment’ by being excluded from the group and having duties taken away.

Atwood believes she is being treated unfairly, but chose not to raise a concern regarding

the reduction in duties.” Ex. 24. Robbins testified that Atwood did not say anything

about Young doing city business during MSA working hours during the September 16

interview.

       Robbins testified that what was reported to Jensen and Beyers when she and

DeVere briefed them on September 17 or 18 was that they had not found time-charging

violations or a hostile work environment but had learned that Atwood and Young clash

and Atwood was perceived as having little respect for Young. They reported that DOE

influence could not be confirmed or disproved.

                                             27
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


       Robbins testified that it was only when she followed up with Atwood on

September 19 to pin down Atwood’s time line of alleged communications about the

Malaysia trip that Atwood said if they were going to look at Atwood’s time, they should

look at the time of Delannoy, who Atwood said accompanied Young to city events during

MSA time. That statement by Atwood appears in a page of Robbins’s notes taken on

September 19 and on her September 20, 2013 entry in her record of events.

       MSA’s trial theory was that the decision to terminate Atwood’s employment was

based on her continuing disregard of Young’s policies. While it treated the 2013

anonymous complaint as an employee concern and needed to complete an investigation,

MSA took the position that HR’s review of Young’s problems with Atwood was

preexisting, intensified with the Malaysia trip, and was proceeding on a separate path

before the anonymous complaint came to light. Its position was that while the EC

investigation found no evidence to sustain the charges in the August 12 anonymous

complaint, the history of Atwood’s disregard of Young’s directives was a separate issue

and a sufficient basis for discharging an at-will employee.

       MSA contended that Young did not treat women differently, that he did not

believe Atwood filed a complaint against him, and that MSA management was unaware

in deciding to terminate Atwood’s employment that Atwood had accused Delannoy or

Young of doing city work on MSA time. MSA also contended it would not have been

worried about Young’s city work, pointing out that when a formal concern about

                                             28
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


Young’s timekeeping was later made in 2015, it triggered a cybersecurity investigation

that found no time-charging violations or e-mail misuse. It did result in a requirement

that Young keep more detailed time records.

        At the conclusion of trial, the jurors returned unanimous verdicts finding the

discrimination and retaliation alleged by Atwood. One juror believed that MSA proved

that Atwood failed to mitigate her damages, and two jurors disagreed with the damages

awarded. The jury awarded Atwood $2.1 million in economic damages and $6 million in

emotional distress damages.

        MSA filed posttrial motions, including a motion for a new trial or for remittitur. It

argued in part that Atwood’s counsel committed misconduct during closing argument by

improperly encouraging the jury to punish MSA and that the damage award could be

explained only as the product of passion and prejudice.6 The trial court denied the

motions. MSA appeals.




        6
            It pointed to counsel’s argument, speaking of Atwood’s discrimination claim,
that:
        We have to call them out or it won’t stop. . . . It doesn’t make a difference
        to us in terms of damages, but it does make a difference in terms of their
        conduct today and their conduct tomorrow. Our goal is to eradicate
        discrimination. So that’s why this claim is still here.
                . . . We need to change their way of thinking.
RP at 4900-01.


                                              29
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


                                        ANALYSIS

I.     THE TRIAL COURT COMMITTED ERROR IN ADMITTING EVIDENCE INVOLVING
       DISCIPLINE OF AND COMPLAINTS BY OTHER EMPLOYEES, AND THE ERROR IS
       REVERSIBLE

       MSA contends that the trial court committed reversible error by admitting

evidence of its treatment of five other employees: Lowell M., Scott B., Michael T., Mary

R., and Sandra Fowler.7 Before trial, MSA moved in limine to exclude evidence of its

treatment of other employees, relying on ER 404(b). Atwood did not file a written

response, but agreed in oral argument that ER 404(b) analysis applied. While we would

analyze “other employee” evidence differently depending on whether the other employee

was being discriminated against or treated favorably,8 it does not matter here. Both


       7
         The first four employees’ identity is irrelevant and their discipline was presented
without notice to them or any opportunity to respond. For that reason, we identify them
in a limited way.
       8
         In a lawsuit alleging discrimination or retaliation, two types of evidence of an
employer’s treatment of other employees can be relevant. One is evidence of the
employer’s acts of discrimination or retaliation against other employees. ER 404(b) does
not permit evidence of wrongs or acts to be used to prove bad character or action in
conformity with that bad character, however. Evidence of the employer’s acts of
discrimination or retaliation against other employees must be reviewed for its
admissibility under ER 404(b).
        The other type of relevant evidence is evidence that an employee outside of the
plaintiff’s protected class faced a similar accusation of wrongdoing or problematic
behavior by the employer that was addressed by the same decision maker or decision
makers but was more favorably treated. The existence of such a “comparator” is
circumstantial evidence from which an inference can be drawn that discrimination
explains the different treatment.
        Both types of evidence require similarities between the circumstances of the other
employee and the plaintiff. In the case of 404(b) evidence, similarity is required because
                                             30
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


parties and the court believed that before “other employee” evidence was admissible, ER

403 balancing of undue prejudice against ER 401 relevance applied.

       A. Disparate Treatment of Other Employees

       Disparate treatment of similarly situated employees constitutes circumstantial

evidence supporting a finding of discrimination or retaliation. Johnson v. Dep’t of Soc. &

Health Servs., 80 Wn. App. 212, 227, 907 P.2d 1223 (1996). Individuals are similarly

situated when they have similar jobs and are involved in the same type of workplace

violation. Vasquez v. County of Los Angeles, 349 F.3d 634, 640-41 (9th Cir. 2003). A

proper comparator in this case would be a male at-will employee in a position similar to

that of a PFM project manager, against whom action was taken for failing to be on site,

available and locatable during working hours.

       Lowell M. Atwood was permitted to present evidence that in November 2015,

more than two years after her resignation in lieu of termination, a “last chance letter” was

issued to Lowell M. Ex. 87 (capitalization omitted). Lowell was a union member.

According to the letter, he was a metal trades worker supervised by the manager of



“[f]or such testimony to be relevant . . . the plaintiff must show the circumstances
involving the other employees are such that their statements can logically or reasonably
be tied to the decision to terminate the plaintiff.” Curtis v. Oklahoma City Pub. Sch. Bd.
of Educ., 147 F.3d 1200, 1217 (10th Cir. 1998) (alterations and internal quotation marks
omitted). In the case of a comparator, it is the similarities between the plaintiff’s and the
comparator’s employment position, workplace violation, and common decision maker
that allows a trier or fact to rationally infer that harsher treatment of the employee in the
protected class was the result of discrimination or retaliation.
                                             31
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


Electrical Utilities. The letter pointed out that in prior months, Lowell failed to report to

an overtime assignment, failed to report that he would be late, or called in late, claiming

to be sick. The letter stated that “further violations of any kind will result in termination

of your employment.” Ex. 87 (boldface omitted).

       The letter was displayed to jurors and Beyers was questioned about it.9 Although

Beyers pointed out that Lowell was a union employee, Atwood’s counsel used the exhibit

to make the point that “a last chance letter is something the company can do for any

employee if it wants to.” RP at 3337.

       While failing to call in or show up for work on time was similar to the charge that

Atwood violated directives to be on-site, on time, and locatable, there was no evidence

that Lowell’s position was similar to Atwood’s. There was no evidence that his last

chance letter, remote in time from Atwood’s termination, was issued by the same

decision makers. The fact that Lowell was a union member entitled to progressive

discipline was reason enough to exclude him as a proper comparator.

       Michael T. Atwood was allowed to offer a memorandum from Beyers to Michael

T. from June 2010, over three years before Atwood resigned in lieu of termination. No

evidence was presented as to what Michael did for MSA or even the division for which


       9
         The trial court stated it was admitting the letter for illustrative purposes,
evidently because it did not intend to make it available to jurors during deliberations. We
agree with MSA that whatever the court intended, describing the exhibit as admitted for
“illustrative purposes,” RP at 3336, would be lost on the jury without further explanation.

                                              32
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


Michael worked. While Beyers signed the memorandum, he testified he would not have

written it; it would have been written by his staff, and he did not recall the details.

Asked, “But it was a guy, right? This is a man?” Beyers answered, “Only by name would

I make that connection.” RP at 3345.

       Beyers’s memo reminded Michael that he or she had agreed not to disclose

confidential information, and stated, “Your participation of ongoing negative and

demeaning comments that directly affected the relationships with the DOE client and

MSA employees is unacceptable and will not be tolerated.” RP at 3344-45. The memo

revealed that Michael was given a two-week suspension.

       The only similarity between Michael’s workplace violation and Atwood’s

employment history was that Young believed Atwood shared a confidential budget

record with Peschong in August 2012—but that was not a basis for her termination.

There is no evidence that Michael held a similar position with MSA.

       Scott B. Most problematic was an investigation report Atwood was allowed to

offer involving an employee concern filed by an MSA truck driver, Gerry I., who

complained that Scott B., a vice president, retaliated against him after Gerry told Scott to

stop flirting with and attempting to contact Gerry’s wife. Gerry had addressed the

flirtation/contact issue with Scott himself, without requesting that the HR department

become involved.



                                              33
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


       When driver layoffs taking place at MSA later increased to a point that affected

Gerry, he feared Scott had manipulated the layoffs so that it would affect him. Gerry’s

employee concern about a retaliatory layoff was investigated by DeVere, who found

“[t]here was not any evidence to conclude that [Scott] had deliberately looked at a

seniority list . . . or changed any of his affected position numbers.” Ex. 400, at 5.

       In questioning Beyers, Atwood’s lawyer had no questions about Gerry’s

retaliatory layoff charge. He wanted to ask about the off-site sexual advance that Scott, a

management employee, made to Gerry’s wife. He read from an HR memo about how,

when Gerry and his wife visited with Scott at a bar one night, “[Gerry] noticed that

[Scott] had placed his hand on his wife’s inner thigh, near her crotch.” RP at 3324.

       DeVere Moreland testified it was her recommendation that for the off-site “sexual

harassment piece” Scott be “reprimanded” rather than subjected to any more serious

discipline. RP at 2350. Beyers testified that notwithstanding DeVere’s recommendation,

his recollection was that Scott was removed from his position and reclassified. He

testified that he did not provide the approval for whatever action was taken against Scott,

and he did not know who did.

       Atwood’s workplace violation was not off-site behavior and no third party

objection resolved it. No one involved in the decision to terminate Atwood’s

employment was shown to have blessed DeVere’s recommendation of a reprimand or

imposed whatever other discipline was imposed on Scott. Scott came nowhere near

                                             34
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


being a proper comparator. The transparent reason Atwood offered the evidence was to

present offensive sexual conduct committed by a management employee of a different

MSA division.

       Mary R. Finally, Atwood was allowed to offer evidence of a December 2010

memorandum to Mary R., giving her a written warning about having “malicious and

inappropriate conversations . . . regarding co-workers.” Ex. 163. Since the evidence did

not relate to another employee’s claim of discrimination or retaliation, Mary appears to

have been offered as a comparator. Inasmuch as Mary is a woman, however, she cannot

be a comparator in a gender discrimination case. Nor was any evidence presented of her

position when she committed this dissimilar workplace violation or whether someone

involved in disciplining Mary was a party to the decision to terminate Atwood’s

employment. As we conclude was the case with the other so-called comparators, the

evidence appears to have been offered to demonstrate that MSA had disciplinary

options—it was not required by policy or practice to discharge an errant employee.

       None of the four employees was a proper comparator. Admission of evidence of

their treatment was error. We do not reverse a verdict based on an evidentiary error

unless the error was prejudicial, however. Diaz v. State, 175 Wn.2d 457, 472, 285 P.3d

873 (2012). An error is prejudicial if it affects, or presumptively affects, the outcome of

the trial. Id. Conversely, an error is harmless if the improper evidence is “of minor

significance” in comparison to the evidence as a whole. State v. Bourgeois, 133 Wn.2d

                                             35
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


389, 403, 945 P.2d 1120 (1997). In deciding harmless error, we may consider how the

case was argued to the jury. State v. Brown, 147 Wn.2d 330, 332, 58 P.3d 889 (2002).

       As a general principle, absent a definite contract, employees are terminable at will.

Rose v. Anderson Hay & Grain Co., 184 Wn.2d 268, 275, 358 P.3d 1139 (2015).

Atwood’s signed acceptance of MSA’s offer letter made this explicit as to her

employment. The jury was properly instructed that Atwood was an “at-will” employee

       who could be lawfully discharged at any time without good cause, or for
       bad cause, or for no cause at all unless otherwise prohibited by law.

CP at 11051 (Instruction 6). It was instructed that her three claims required her to prove

that “Ms. Atwood’s gender was a substantial factor in MSA’s decision to terminate her,”

CP at 11052 (Instruction 7), that “a substantial factor in the decision to terminate Ms.

Atwood was her opposition to what she reasonably believed to be discrimination or

retaliation on the basis of gender,” RP at 4656 (Instruction 9), and “that [Atwood’s]

public policy linked conduct was a substantial factor in the employer’s decision to

terminate her.” RP at 4659 (Instruction 12).

       The jury could not infer discrimination or retaliation from the fact that over a five

year period, four of MSA’s almost 1,200 to over 1,350 employees10 received discipline

for unrelated workplace violations that was less harsh than termination of employment.


       10
          The EEOC requested information from MSA about the number of persons it
employed and it responded that it had 1,193 employees in 2013, 1,175 in 2014, and as of
the time it responded in 2015, it had 1,360. Ex. 16, at 12.

                                             36
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


Evidence of the unrelated discipline of these other employees was not relevant. To quote

ER 401, the manner in which Lowell, Scott, Michael, and Mary were disciplined had no

“tendency to make the existence of any fact that [was] of consequence to the

determination of [Atwood’s claims] more probable or less probable than it would be

without the evidence.”

       Atwood misused this irrelevant evidence. In theory, the comparator evidence

should have been relevant only to the discrimination claim: if two significantly similar

discipline situations are reviewed, the only difference is the employees’ gender, and the

male is treated more favorably, an inference of discrimination can be drawn.

       Atwood, however, relied on the comparators for all her claims, and to suggest to

jurors that they could infer an unlawful motive from the fact that unlike Lowell, Scott,

Michael, and Mary—none shown to be a similar situation—she did not receive discipline

short of termination. Atwood’s lawyer suggested in questioning witnesses that the

comparator evidence was relevant to show that MSA had the option to be “more

compassion[ate]” and impose progressive discipline. RP at 3341. In closing argument,

Atwood argued that if an employer terminates an employee precipitously rather than

impose progressive discipline, “that’s a good indicat[ion] . . . they’re concerned about

some behavior that most recently happened”—in other words, the termination is

retaliatory. RP at 4715. Atwood’s lawyer asked jurors at one point to “take out” the

discrimination claim, consider only her whistleblower theories, and consider the

                                             37
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


relevance of denying her progressive discipline. See RP at 4892-97. Atwood argued that

the whistleblower claims were proved, among other ways, by “show[ing] that there is no

paper trail” leading to termination, and “[t]here’s no record of counseling or progressive

discipline”—by showing that MSA “fired [an employee] even though [the employee] was

doing a great job and without documented progressive discipline.” RP at 4895, 4897.

       Atwood used the comparators to imply that MSA had a duty to consider lesser

discipline, which is to contend that she was not terminable at will—and she explicitly

agreed to be terminable at will.

       Not only was the evidence not relevant, but it had a clear capacity to confuse the

issues and mislead the jury. All of it implied to jurors that the fact that MSA meted out

milder discipline to four differently-situated employees over a period of five years was

relevant to their deliberations, when it was not. And the evidence about Scott was “bad

acts” evidence, mischaracterized as a comparator, which Atwood used to argue that

MSA’s retaliation was unsurprising, given its misogynistic culture. See RP 4727-32. In

closing argument that was not limited to the discrimination claim, Atwood argued

(contrary to the evidence in an important respect):11

       [L]ook what’s also happening under Armijo. Exhibit 400. This guy, vice
       president . . . a male, reporting to Armijo. He basically puts his hand on the
       leg near the crotch of this spouse of an MSA truck driver at a party. What a


       11
       As earlier explained, Gerry, the truck driver, never sought assistance from the
HR Department in dealing with Scott’s inappropriate conduct toward his wife.

                                             38
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


      pig. Oh, my goodness. What do you do with somebody like that? You fire
      them like that. Well, he doesn’t get fired. He gets—basically the husband
      has to stand up and tell—picture this: You’re a truck driver and you’re
      telling a vice president, you leave my wife alone. You don’t put people in
      that position, but they did here. And he is not fired. Unbelievable that he is
      not fired and Ms. Atwood is and not even told what she did wrong. This,
      this shows you a culture in crisis. This is a world where Armijo, for
      whatever reason, if you’re in the boys club, you’re safe; if you’re a woman,
      we don’t need you.

RP at 4730-31.

      Later on in closing, Atwood argued:

              Comparators. This is how we prove this case. We have proved it
      with comparators. . . .
              But here’s the thing. These comparators are fairly dramatic. You
      don’t usually see this kind of thing, right? In a corporate culture that is
      healthy men who engage in improper behavior are treated the same as
      women; right? . . . [I]t appears like women fled the scene, but we have men.
      And even if you believe that Ms. Atwood did the deeds claimed of, so
      we’re sort of saying, let’s analyze this as a discipline case. Let’s compare
      her to other people who got disciplined. Of course our position is she
      should not have been disciplined because she didn’t do anything wrong,
      and I think we’ve proven that. But for comparator sake, let’s look at men
      that we know did something wrong and see how they were treated.
              . . . None of these men are terminated. That’s our case. That’s our
      discrimination case. That’s all it is. It has nothing to do with conspiracies,
      it has nothing to do with fake documents or what they did. That’s our case.
      And we think it’s enough for you to find discrimination.

RP at 4906-08.

      Atwood’s evidence was sufficient but her case was not strong. On events critical

to her claims (the September 5 meeting with Young, Atwood’s September 16 interview,

and DeVere and Robbins’s September 17 or 18 briefing of management), only DeVere


                                             39
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


and Atwood, if present, supported Atwood’s version of events; no one else did. Most of

MSA’s employees and former employees and key pieces of documentary evidence

supported its defense. Atwood countered MSA’s witnesses and exhibits by pointing out

inconsistencies and with a theory that real records had been destroyed, false records had

been created, and—given corrupt MSA management—its employees testified falsely, in

fear for their jobs. She also countered MSA’s evidence by arguing that given the

comparators, Atwood’s treatment was unfair. We do not lightly reverse a jury verdict,

but we are satisfied that the improper comparator evidence alone had a clear potential to

affect the outcome of the trial. Reversal is required.

       Because we reverse the jury’s verdict on liability, we need not address all of

MSA’s assignments of error. We address three additional issues because they present

additional error or because the same issues will be presented in a retrial.

       B. Bad Acts Evidence

       Before trial, MSA moved to exclude evidence from Sandra Fowler, a former in-

house lawyer for MSA, who claimed that Armijo subjected her to disparate treatment and

Beyers subjected her to retaliation. The evidence was admissible under ER 404(b) only if

the trial court identified a proper purpose for which the evidence would be admitted and

then, on the record, balanced the probative value of the evidence against its potential for

prejudice. Brundridge v. Fluor Fed. Servs., Inc., 164 Wn.2d 432, 444-45, 191 P.3d 879

(2008). In addition, for the evidence to be admissible, the court was required to find at

                                             40
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


least substantial evidence, and arguably by a preponderance of the evidence, that the prior

discrimination occurred. Id. at 448-49.12

       Before ruling on MSA’s motion, the trial court required Atwood to present an

offer of proof that included an opportunity for cross-examination by MSA. The offer of

proof established that Fowler was employed for a time as MSA’s lead counsel and

voluntarily resigned in August 2015. She later filed a complaint with the EEOC. In

Atwood’s offer of proof, Fowler testified to the following:

           When Armijo became president and general manager in 2010, he treated her
            with disrespect. This included telling her to “shut up” in a meeting with
            MSA’s vice presidents;
           When Armijo made changes in his direct reports, it was often to replace
            women with men, and once Armijo was hired, it was male members of
            management who were given offices on his floor;
           During her tenure she hired two lawyers who reported to her. Both were paid
            more than her. Believing she was underpaid, she made several requests for a
            review of her salary;
           At a meeting with Armijo, Beyers, and Ruscitto in October 2012, Beyers—
            referring to her request for a salary review—accused her of filing a gender
            discrimination complaint;
           In the summer of 2014, Armijo promoted Fowler’s second staff attorney
            hire—Stan Bensussen—to the position of chief counsel, relegating Fowler to
            what amounted to an associate counsel position;
           Following his promotion, Bensussen treated her dismissively and told her that
            she should kiss the ground that Armijo and Ruscitto walk on;



       12
         In Brundridge, the Supreme Court reserved the issue of whether, when the
evidence is of a noncriminal act or is offered in a civil case, the proponent must prove by
a preponderance of the evidence that the act occurred. 164 Wn.2d at 448-49.

                                             41
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


          After she made an ethics complaint against Armijo in late December 2014 that
           was resolved in his favor in February or March 2015, he refused to speak to or
           acknowledge her.

See RP at 3356, 678-750.

       When cross-examined during the offer of proof, Fowler testified that she was 7 or

8 years out of law school and had no general counsel experience when MSA hired her as

in-house lead counsel. Her performance evaluation for calendar year 2012 was

presented, which spoke about a need for her to work on her presentations to senior

management, which were sometimes incomplete and confusing. It stated that her

interaction with DOE’s chief counsel’s office “remains a challenge” and she should

“work hard in the next year to gain the respect and establish a partnering relationship.”

RP at 698. The evaluation observed that during 2012 “she brought on an experienced

attorney to supplement her staff.” RP at 697. Fowler acknowledged that the lawyer

hire—her first—had over 30 years legal experience.

       It was established that Bensussen, the second of the two lawyers she hired, and the

one who was promoted to chief counsel, also had over 30 years’ experience. It was

established that Atwood had already resigned in lieu of termination before Fowler hired

Bensussen. Fowler was lead counsel when the decision was made to discharge Atwood.

       It was established that Fowler’s ethics complaint about Armijo was made shortly

before he left the position of president, that her charge was investigated by the internal

audit department of Lockheed Martin, which was Armijo’s employer (Armijo had been a

                                             42
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


borrowed employee) and that Armijo was cleared. His refusal to speak with her that

followed was at a time when he no longer worked for MSA.

       It was established that her 2015 employee concern alleging she was disparaged by

Bensussen did not complain of any other member of management, was investigated by

Robbins and another MSA employee, and was resolved as unsubstantiated.

       Fowler had testified that at the time she left MSA, she made a formal complaint

about being underpaid. In cross-examination, she was shown a report, marked for

identification as exhibit 30, which MSA’s counsel identified as a third party review

triggered by her complaint that concluded she was paid more than a market rate for a

lawyer with her experience. Fowler had not seen and did not agree with the report,

although she agreed that it accurately reflected her salary history at MSA.

       The trial court conducted an ER 404(b) analysis on the record. It did not find by a

preponderance of the evidence or find even substantial evidence that Fowler was paid

less based on her gender. It did find she had complained about being disparately

underpaid, however. It ruled that most of Atwood’s proposed evidence from Fowler was

admissible for the purpose of proving “motive, plan, intent and/or pretext for

discrimination.” RP at 743. While noting that Fowler’s experience did not always

involve the same chain of command as Atwood’s, the court cited as the “foundation for

[its] ruling” that “[a] corporate culture comes through its key players, those at the top.”

RP at 742. The only testimony from Fowler that it disallowed was testimony about

                                             43
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


claims by other employees that might have come to Fowler’s attention as MSA’s

counsel.13

       In the employment context, evidence of how an employer treats other employees

may be admissible to show motive or intent to retaliate. Brundridge, 164 Wn.2d at 445-

46. Brundridge involved the claim of 11 plaintiffs that they were retaliated against by

Fluor for reporting safety concerns. As issue on appeal was whether the trial court’s

decision to admit three matters was erroneous under ER 404(b).

       The first was evidence of a nonparty employee who voiced a safety concern and

experienced retaliation. Noting that the employee made the same type of complaint, to

the same chain of command, at the same time as the plaintiffs’ complaint, the court found

the evidence “highly probative” that Fluor’s retaliatory conduct was intentional.

Brundridge, 164 Wn.2d at 446.

       The second, also found to be relevant, was evidence of a nonparty employee who

spoke to a member of the chain of command about the lack of resolution of her concern

and was told “‘not to sacrifice [her] career for [her] ethics.’” Id. at 446 (alterations in

original).




       13
          The court also discouraged MSA from presenting a trial within a trial about
whether Fowler was in fact paid unfairly, as she claimed. But it recognized that MSA
might want to prove that she was fairly paid rather than accept the limiting instruction
that the court offered as an alternative.

                                              44
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


       The third was evidence of two other potentially dangerous gas releases that had

occurred at Fluor, one of which, through omissions of information, was arguably

downplayed in company reports. While the Supreme Court found the report omissions to

have some probative value, it concluded that taken together, the incidents had “minimal

probative value” to the elements of the plaintiffs’ claims and “had the potential to

prejudice the jury by leading them to believe that Fluor was a ‘bad company’ in general.”

Id. at 447.

       Brundridge cited to federal cases holding that only similar situations should be

admitted as evidence of an employer’s other bad employment acts. Federal courts

disagree on the required extent of similarity. See Emma Pelkey, Comment, The “Not Me

Too” Evidence Doctrine in Employment Law: Courts’ Disparate Treatment of “Me Too”

Verus “Not Me Too” Evidence in Employment Discrimination Cases.” 92 OR. L. REV.

545, 549-52 (2013). In Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379,

388, 128 S. Ct. 1140, 170 L. Ed. 2d 1 (2008), the United States Supreme Court held that

in a case alleging age discrimination by a plaintiff’s supervisor, the federal rules of

evidence do not make evidence of the discriminatory acts of a different supervisor per se

admissible or per se inadmissible. Rather, whether such evidence is relevant is “fact

based and depends on many factors, including how closely related the evidence is to the

plaintiff’s circumstances and theory of the case.” Id. Following Sprint, it has been

suggested that federal courts’ analyses “include the following factors: (1) temporal and

                                             45
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


geographic proximity between the other employee and the plaintiff, (2) whether the other

employee and the plaintiff were treated in the same manner, (3) whether the same

decisionmakers were involved, and (4) whether the other employee and the plaintiff were

similarly situated.” Pelkey, supra, at 554.

       We find no abuse of discretion by the trial court in allowing Atwood to present

Fowler’s testimony about actions of Beyers and Armijo (while he served as MSA’s

president and general manager) that she viewed as disparate treatment or retaliatory.

       We do find an abuse of discretion in allowing Fowler to testify to her complaints

about Bensussen and her claim that she suffered retaliation by Armijo after he no longer

worked for MSA.

       Her employee concern about Bensussen (and only Bensussen) was determined to

be unsubstantiated. More importantly, Bensussen was not even employed by MSA when

the decision was made to discharge Atwood. Bensussen was hired by Fowler after

Atwood’s resignation, and his complained-of lack of respect for Fowler took place in a

different corporate department, well after Atwood was gone. In closing argument,

Atwood conceded it was offering Bensussen’s actions as “only important to help you

understand that there is a cultural problem under Armijo.” RP at 4727-28.

       As for Armijo’s alleged retaliation for Fowler’s ethics complaint, his refusal to

speak to or acknowledge her occurred when she encountered him after he no longer

worked for MSA. And it was after she accused him of what was determined to be an

                                              46
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


unfounded ethical violation. It can be actionable retaliation for a supervisor to exclude an

employee from, e.g., regular weekly lunches with all other employees in a unit since it

could reasonably deter the employee or others from protected activity. See EEOC,

NOTICE 915.004: ENFORCEMENT GUIDANCE ON RETALIATION RELATED ISSUES §

II(B)(2) ex. 13 (Aug. 25, 2016) (applying federal law; also concluding it would not be

unlawful retaliation if a supervisor excluded an employee from a single lunch with

several other employees, even if done for a retaliatory reason).14 Atwood offers no

authority that it was actionable retaliation for Armijo to choose not to greet or engage

Fowler in conversation when he encountered her after leaving MSA’s employment.

       No proper evidentiary purpose was served by allowing Fowler to testify to her

complaints about Bensussen or the ethics complaint about Armijo (which was not a

complaint about gender discrimination) that she believes explains his cold shoulder after

he left MSA. Like the Scott B. comparator evidence, they were offered for the purpose—

and presented the danger, recognized in Brundridge—of prejudicing the jury by leading it

to believe that MSA “was a ‘bad company’ in general.” 164 Wn.2d at 447.

II.    ERROR IN THE HEARSAY RULINGS CHALLENGED ON APPEAL IS EITHER
       UNPRESERVED OR WAS INVITED

       MSA contends that the trial court erroneously sustained hearsay objections that

frustrated its ability to present a defense. It also assigns error to a limiting instruction

       14
          Https://www.eeoc.gov/laws/guidance/enforcement-guidance-retaliation-and-
related-issues#2._Types [https://perma.cc/E9DC-NUW4].
                                               47
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


given by the court when an MSA employee testified to information collected that

provided lawful reasons for terminating Atwood’s employment. All told, it assigns error

to 11 rulings or instructions. Five of the challenged rulings do not warrant discussion

other than to point out that they were not erroneous, that error was not preserved, or that

they were harmless.15 We turn to the remaining 8.

       Hearsay is an out-of-court statement offered in evidence to prove the truth of the

matter asserted. ER 801(c). “A statement is not hearsay if it is used only to show the

effect on the listener, without regard to the truth of the statement.” State v. Edwards, 131

Wn. App. 611, 614, 128 P.3d 631 (2006). This principle has special application in the

context of employment cases where the central issue is whether the employer acted for an

improper purpose. Where a statement is offered not to prove the truth of the matter

asserted but instead to show an employer’s motivation for terminating an employee, the

testimony is not hearsay. See, e.g., Domingo v. Boeing Emps. Credit Union, 124 Wn.

App. 71, 79-80, 98 P.3d 1222 (2004), abrogated on other grounds by Mikkelsen v. Pub.

Util. Dist. No. 1 of Kittitas County, 189 Wn.2d 516, 404 P.3d 464 (2017); Rice v.

Offshore Sys., Inc., 167 Wn. App. 77, 86-87, 272 P.3d 865 (2012).

       15
         The ruling at RP 4198-99 was correct. At RP 3998 and RP 4127-30, the rulings
were in error but error was not preserved; defense counsel never stated it was offering the
evidence for something other than its truth.
       The record admitted at RP 3324-25 was likely a business record, although the
required foundation was not laid. At RP 3348-49, an order to cease and desist is an
imperative statement, not an assertive one, and identifying who gave the order is not
hearsay. These errors were harmless.
                                             48
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


       The relevance of such a statement in the context of an employment case is not

limited to its effect on the immediate hearer. It can be circumstantial evidence probative

of intent. Remarks not made directly in the context of an employment decision may be

relevant circumstantial evidence in a discrimination case. Scrivener v. Clark Coll., 181

Wn.2d 439, 450 n.3, 334 P.3d 541 (2014) (citing Reid v. Google, Inc., 50 Cal. 4th 512,

538-46, 235 P.3d 988, 113 Cal. Rptr. 3d 327 (2010)). They are not hearsay if offered to

demonstrate the effect the investigations had on the employer and as evidence of the

employer’s motive. Montoya v. Orange County Sheriff’s Dep’t, 987 F. Supp. 2d 981, 993

(C.D. Cal. 2013); accord Hernandez v. City of Vancouver, 277 F. App’x 666, 672 n.2

(9th Cir. 2008) (citing Bergene v. Salt River Project Agric. Improvement & Power Dist.,

272 F.3d 1136, 1142 (9th Cir. 2001)); Means v. City of San Francisco, 749 F. Supp. 2d

998, 1006 (N.D. Cal. 2010) (allowing evidence of statements made in an employer’s

investigation into employee’s inappropriate conduct to show that the employer had a

nondiscriminatory motive for taking disciplinary action); Turner v. Univ. of Wash., C05-

1575RSL, 2007 WL 2984685, at *2 (W.D. Wash. Oct. 10, 2007) (court order) (denying

plaintiff’s motion to exclude employment investigation files and witness statements to the

extent they were being offered to demonstrate that defendants had a nondiscriminatory

basis for their actions).

       Critical to Atwood’s case against MSA, for example, were two statements that

could be challenged as hearsay: testimony that Young said he suspected Atwood of filing

                                             49
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


the anonymous complaint, and evidence that Atwood told investigators Young was doing

city work on MSA time. That testimony would be hearsay if offered for the statements’

truth. But it could be offered for its effect on the state of mind of those hearing the

statements, or hearing of the statements—not only those in the room, but those up the

chain of command. Atwood wanted the jury to infer (and evidently it did) that when the

decision was made to terminate her employment, it was because Armijo learned that

Young suspected Atwood of making the anonymous complaint and that Atwood was

charging Young with doing city work on MSA time.

       Washington courts have frequently observed that an employee ordinarily must rely

on circumstantial evidence “since the employer is not apt to announce retaliation as his

motive.” Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 69, 821 P.2d 18

(1991). In this case, given MSA’s assertion of attorney-client privilege and the trial

court’s in limine ruling, MSA was also unable to offer direct evidence of the information

significant to Armijo in making the termination decision. It, too, had to rely on

circumstantial evidence. Just as Atwood hoped jurors would infer that Armijo learned

things that (true or not) caused him to act discriminatorily and to retaliate, MSA hoped

jurors would infer, instead, that Armijo learned things that (true or not) caused him to

conclude that Atwood’s talent was outweighed by problems she was creating in PFM.

       The hearsay rulings to which MSA made a timely and proper objection came

during the testimony of Jensen. The trial court first sustained objections to what Jensen

                                             50
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


learned about Atwood from Young, despite counsel’s explanation that it was not being

offered for truth. After Atwood interposed a hearsay objection to Jensen’s testimony

about what he learned from Robbins, MSA’s counsel argued the nonhearsay character of

Jensen’s testimony during the next recess. After hearing MSA’s argument that it was not

offering evidence about what Jensen was hearing for its truth, the trial court relented,

saying it would allow the testimony with a limiting instruction that the jury could

consider it “as the basis of Mr. Jensen’s knowledge and not [as] substantive evidence.”

RP at 3854. MSA’s counsel responded, “Correct.” Id.

       When Jensen’s examination resumed, he was asked again about his discussion

with Young about Young’s concerns, and the trial court interjected a limiting instruction:

       [L]adies and gentlemen of the jury, when Mr. Jensen is going to be
       testifying about what Mr. Young had told him, this is information for you
       to use as to explaining Mr. Jensen’s state of mind and why he may have
       acted in one way or another. It’s not substantive evidence. In other words,
       what Mr. Young told him isn’t substantive evidence, it is to be used by you
       only for you to take into consideration Mr. Jensen’s state of mind of how he
       acted after that.

RP at 3868-69. The court interjected a similar limiting instruction several more times

during Jensen’s testimony.

       The trial court also gave a limiting instruction when MSA relied on Jensen to

establish a foundation for admitting exhibit 221, the white board record of Atwood’s

alleged violations of Young’s directives during 2012 and 2013. In admitting the

evidence, the trial court told the jury it was being admitted

                                             51
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


       only for the purpose of providing notice of information to this witness, Mr.
       Jensen. It’s not independent substantive evidence.
              So you are to consider Exhibit 221 only for the purpose of what Mr.
       Jensen knew and explaining why he may have taken one or more actions
       from this.

RP at 3882. MSA did not object.

       For the first time on appeal, MSA argues that the limiting instruction was

erroneous and a comment on the evidence. It argues that Jensen’s testimony was

substantive evidence of MSA’s motivation for terminating Atwood.

       Evidence of an out-of-court statement that is not offered for its truth is not

hearsay. If it is relevant and not inadmissible for some other reason, it is substantive

evidence. It was error to tell the jury that it was not.

       And just as it would have been error to tell jurors that the statements by Atwood

and Young that were important to Atwood’s case could be considered only for their effect

on the people in the room, the court’s limiting instruction was too narrow in suggesting

that information provided to Jensen could be considered solely for its effect on him.

Nonetheless, by explicitly agreeing with the trial court’s proposed limiting instruction,

MSA invited the evidentiary error. It cannot challenge it on appeal. E.g., In re Pers.

Restraint of Breedlove, 138 Wn.2d 298, 313, 979 P.2d 417 (1999) (express agreement to

erroneous action constitutes invited error).

       A limiting instruction is proper when evidence that could be hearsay is offered for

something other than its truth. When the case is retried, an instruction can be crafted that

                                               52
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


applies evenhandedly to both parties’ evidence of statements made during the

investigation that are circumstantial evidence bearing on motive.

        MSA’s challenge that the limiting instruction was a comment on the evidence

would ordinarily require further analysis. The Washington State Constitution prohibits a

judge from commenting on the evidence. WASH. CONST. art. IV, § 16. Accordingly, a

comment on the evidence, if manifest, can be challenged for the first time on appeal.

RAP 2.5(a)(3). That is not the case with invited error, however. The invited error

doctrine applies even to manifest constitutional errors. State v. Sykes, 182 Wn.2d 168,

187, 339 P.3d 972 (2014) (Madsen, C.J., dissenting) (citing State v. McLoyd, 87 Wn.

App. 66, 70, 939 P.2d 1255 (1997)).

III.    QUALHEIM TESTIMONY

        MSA contends the trial court erred by refusing to allow it to call a DOE witness in

the defense case to respond to unexpected testimony from DOE witnesses in Atwood’s

case.

        In order to present evidence in the possession of DOE employees at trial, the

parties had to navigate federal regulations, often called “Touhy regulations,” that regulate

the conditions and procedures under which a federal agency’s employees may testify

concerning their work. See 5 U.S.C. § 301; State v. Vance, 184 Wn. App. 902, 912-13,

339 P.3d 245 (2014) (citing United States v. Soriano-Jarquin, 492 F.3d 495, 504 (4th Cir.

2007) (citing, in turn, United States ex rel. Touhy v. Ragen, 340 U.S. 462, 468, 71 S. Ct.

                                             53
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


416, 95 L. Ed. 417 (1951))). The DOE’s regulations appear at 10 C.F.R. § 202.22 and

forbid DOE employees from responding to court or other document or information

requests without prior approval of DOE’s general counsel.

       Atwood’s lawyer requested approval to call four current and former DOE

employees as witnesses during the trial. Atwood’s letter requesting approval stated that if

called, each of the four may be asked to testify “based upon his personal knowledge

about the scope of work Ms. Atwood performed.” CP at 6017-21. The DOE General

Counsel’s office responded that the four individuals “are authorized to give testimony as

to non-privileged factual matters within their personal knowledge” relating to requested

subject matter areas, but were not authorized to testify, e.g., to “matters requiring opinion

testimony, either of a factual or legal nature.” CP at 6627.

       Testimony began on September 15, and the first witness called by Atwood was

one of the DOE witnesses, John Silko. When questioning touched on how Atwood

performed her work, MSA requested a sidebar. The trial court construed “scope of work”

broadly, allowing Atwood to elicit testimony from the DOE witnesses about, e.g., how

Atwood interacted with others, how she did her job, and whether she was late.

       The morning following Silko’s testimony, MSA’s lawyers notified Atwood’s

lawyers that in light of the breadth of the DOE employees’ testimony, MSA would be

requesting DOE’s approval to call as a witness another DOE employee, Margo Qualheim,

who would support some of MSA’s contentions about Atwood. Atwood’s lawyers

                                             54
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


responded that they would object to her “last minute addition,” pointing out that

Qualheim had not been identified by MSA as a witness on the trial management report

(other than as a witness identified by Atwood, who MSA “reserve[d] the right” to call).

CP at 6593, 6576. On September 27, DOE granted MSA’s request to call Qualheim as a

witness.

       Atwood filed a motion in limine to exclude Qualheim’s testimony, claiming that

she was untimely disclosed. The court granted the motion. Applying the analysis

required by Burnet v. Spokane Ambulance, 131 Wn.2d 484, 933 P.2d 1036 (1997), the

trial court concluded that no lesser sanction than excluding Qualheim as a witness would

suffice.

       MSA raises colorable arguments that not only was exclusion of Qualheim

excessive under Burnet, but Qualheim may have been a true rebuttal witness who was not

required to be disclosed. Testimony in the case did not conclude until October 5,

meaning that 19 days, including 2 weekends, passed between MSA’s September 16

notice that it would seek to call Qualheim and the conclusion of testimony. Atwood

knew of Qualheim, having included her on her own witness list.

       MSA also makes a colorable argument that excluding Qualheim was not harmless

error. While most of Atwood’s MSA coworkers called as witnesses supported MSA’s

position, not Atwood’s, Atwood argued to the jury that the coworkers were “simply



                                             55
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


doing what they feel like they need to do to keep their jobs.” RP at 4764. The same

argument could not have been made about Qualheim.

       Having found other reversible error and because late notice will not be a problem

in a retrial, we decline to consider this issue further.

IV.    ERRONEOUS INSTRUCTION ON ECONOMIC DAMAGES ALSO REQUIRES REVERSAL

       The final issue we address is the trial court’s instruction 17, which directed the

jury on how to calculate future wage loss damages. Atwood was 58 years old at the time

she retired in lieu of termination and was 62 years old at the time of trial. Her expert,

relying on Atwood’s professed intention to work at MSA until age 70, testified to

economic damages of $2.1 million in present discounted value.

       MSA’s expert calculated much lower lost future wage amounts—from $70,982 to

$240,480, depending on how quickly Atwood found other full-time employment. She

testified that all statistics pointed to someone in Atwood’s position, still working at age

59, retiring at age 66. MSA also presented evidence that Atwood had changed jobs often;

her average job lasted between two and three years and the longest she stayed at any

given job was six years. Its evidence also showed it was common for project managers

like Atwood to change jobs.

       Both parties based their instruction on damages for future wage loss on a

Washington pattern instruction. See 6A WASHINGTON PRACTICE: WASHINGTON

PATTERN JURY INSTRUCTIONS: CIVIL § 330.82, at 401 (7th ed. 2019) (WPI). With

                                               56
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


bracketing for language that changes based on the evidence in the case, the pattern

instruction reads:

               In calculating damages for future wage loss [front pay], you should
       determine the present cash value of salary, pension, and other fringe
       benefits from today until the time the plaintiff may reasonably be expected
       to [retire] [fully recover from the continuing effects of the discrimination],
       decreased by any projected future earnings [from another employer].

Id. (emphasis added). The notes for the instruction observe that “[u]se of the term ‘retire’

may not be appropriate in all cases.” Id.16

       The trial court’s instruction 17 was the instruction proposed by Atwood. It told

jurors that future wage loss should be calculated

       from today until the time the plaintiff may reasonably be expected to retire
       or fully recover from the continuing effects of the discrimination.

CP at 11063 (emphasis added). MSA timely objected, arguing that because it had

presented evidence from which the jury could conclude that Atwood would not remain

employed at MSA through retirement, the time frame given should simply be “from

today until the time plaintiff may reasonably be expected to fully recover from the

continuing effects of the discrimination.”

       16
          Washington pattern instructions use bracketing to identify alternative language
with the intention that parties will propose and the court will select the alternatives that
are proper based on the evidence in the case. Cf. Blaney v. Int’l Ass’n of Machinists &
Aerospace Workers, Dist. No. 160, 114 Wn. App. 80, 88-89, 55 P.3d 1208 (2002)
(observing that WPI 330.82 provides “alternative language in brackets” and retirement as
marking the end date for future wage loss might or might not apply in a given case).
Consistent with controlling case law, WPI 330.82 does not include [retire or fully recover
from the continuing effects of the discrimination] as an alternative.

                                              57
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


       Jury instructions are sufficient if they: (1) allow each party to argue their theories

of the case, (2) do not mislead the jury, and (3) when read as a whole, properly inform the

trier of fact of the law to be applied. Adcox v. Children’s Orthopedic Hosp. & Med. Ctr.,

123 Wn.2d 15, 36, 864 P.2d 921 (1993). If any of these elements are missing, the

instruction is erroneous. Anfinson v. FedEx Ground Package Sys., Inc., 174 Wn.2d 851,

860, 281 P.3d 289 (2012). An erroneous instruction is reversible error only if it

prejudices a party. Id. We review errors of law in jury instructions de novo. Hue v.

Farmboy Spray Co., 127 Wn.2d 67, 92, 896 P.2d 682 (1995).

       Washington law provides that “[f]ront pay should be awarded ‘for a reasonably

certain period of time that does not exceed the likely duration of the terminated

employment.’” Lords v. N. Auto. Corp., 75 Wn. App. 589, 605, 881 P.2d 256 (1994)

(quoting Hayes v. Trulock, 51 Wn. App. 795, 802, 755 P.2d 830 (1988)). In an age

discrimination case, a jury may be told to consider that the illegally-discharged employee

would have continued working for the employer until he or she reached the normal age of

retirement, unless the employer provides evidence to the contrary. Id. “In other cases,

the determination of future lost earnings, including the number of years, is generally left

to the jury to determine, once an employee produces evidence from which a reasonable

future employment period may be projected.” Blaney v. Int’l Ass’n of Machinists &

Aerospace Workers, Dist. No. 160, 114 Wn. App. 80, 89, 55 P.3d 1208 (2002).



                                             58
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


       In Blaney v. International Ass’n of Machinists & Aerospace Workers, District No.

160, 151 Wn.2d 203, 207-08, 87 P.3d 757 (2004), a union member sued for gender

discrimination. The court instructed the jury to calculate the plaintiff’s future earnings

“from today until the time [plaintiff] may reasonably be expected to retire.” Id. at 210.

The Supreme Court held that the instruction was improper since it denied the jury its role

in determining the duration of the plaintiff’s future employment—a duration that might

not extend to retirement. Id. at 210-11.

       Atwood contends her proposed jury instruction was proper because it spoke of

both retirement and the time by which a plaintiff will fully recover, thereby mirroring the

instruction given in Brundridge, 164 Wn.2d at 454-55. In Brundridge, however, the

instruction was not objected to at trial or challenged on appeal. Brundridge tells us

nothing about the propriety of the instruction.

       Instruction 17 was misleading because it provided the jury with two optional time

frames for awarding damages: a time frame that ended with full recovery or, at the jury’s

option, a time frame that continued to retirement. In closing argument, Atwood

encouraged jurors to choose the retirement option, telling them:

              So on economic damages, this, again, is the jury instruction: From
       today until the time the plaintiff may reasonably be expected to retire.
       Remember, retire. This is the jury instruction, you can give her front pay to
       retirement, or to whenever you think she’s going to reasonably recover
       from the retaliation and discrimination.



                                             59
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


RP at 4781. Atwood argued that the “right answer” on economic damages was its

expert’s $2.1 million retirement-at-70 calculation. RP at 4788.

       The instruction prevented MSA from arguing that the jury was required to limit

damages if it found that Atwood could reasonably be expected to fully recover from the

discrimination in a shorter time frame. Since Atwood’s expert gave the jury a $2.1

million figure for future wages through age 70 retirement, it was a simple matter for the

jury to select that figure and avoid having to consider MSA’s evidence supporting a

shorter time frame.

       The instructional error was prejudicial. MSA presented evidence that Atwood

could be expected to recover earlier—much earlier. Even having been given the option

to award damages through retirement, two jurors disagreed with the damages awarded.

The instructional error could have substantially increased the economic damages awarded

by the jury.

       In the retrial, if MSA presents evidence which, if believed by the jury, shows that

Atwood may reasonably be expected to fully recover from the continuing effects of

discrimination earlier than the date on which she may reasonably be expected to retire,

then the court’s instruction should exclude retirement as an option for measuring the

future wage recovery period. Such an instruction will permit Atwood to recover future

wages through retirement if but only if she proves that retirement is the earliest date on

which she may reasonably be expected to fully recover.

                                             60
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance, et al.


       We reverse the judgment on the jury’s verdict and remand for further proceedings

consistent with this opinion.

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

Washington Appellate Reports, but it will be filed for public record pursuant to RCW

2.06.040.


                                                  _____________________________
                                                  Siddoway, J.

I CONCUR:



_____________________________
Korsmo, A.C.J.




                                             61
                                      No. 35872-1-III
                                     (consolidated with
                                      No. 35911-5-III)


       LAWRENCE-BERREY, J. (dissenting)-! agree with most of the majority's

conclusions, including the need for a new trial on the question of future damages. I

dissent because the trial court's evidentiary errors did not affect the juries' special

verdicts on two of Julie Atwood's three causes of action, and those two verdicts should

be affirmed.

       The majority correctly concludes the trial court abused its discretion in admitting

comparator evidence of four individuals, Lowell M., Michael T., Scott B., and Mary R.

The majority also correctly concludes the trial court did not abuse its discretion in

admitting some comparator evidence testified to by Sandra Fowler, but did abuse its

discretion in admitting Fowler's testimony about Stanley Bensussen and about Frank

Armijo's purported retaliation against her.

       So the question becomes, given that the month-long trial involved 41 witnesses and

over 100 exhibits, do the above comparator evidence errors require reversal of the special

verdicts on all three of Atwood's causes of action?

       By special verdicts, the jury found that Atwood had proved ( 1) her gender

discrimination claim (Mission Support Alliance (MSA) fired her because it treated her

differently than men), (2) her gender retaliation claim (MSA fired her for reporting that

her supervisor treated her differently than men), and (3) her wrongful discharge in
No. 35872-1-111; No. 3 5911-5-111
Atwood v. Mission Support Alliance


violation of public policy claim (MSA fired her for reporting that her supervisor claimed

compensation for time spent performing his outside mayoral duties). Because the latter

two claims required Atwood to prove that MSA retaliated against her for reporting

misconduct, she sometimes referred to those latter claims as her retaliation claims.

       Harmless error standard

       Evidentiary error is harmless unless there is a reasonable probability it materially

affected the outcome of the trial. In re Det. of Post, 170 Wn.2d 302,314,241 P.3d 1234

(2010); State v. Thomas, 150 Wn.2d 821, 871, 83 P.3d 970 (2004); State v. Neal, 144

Wn.2d 600, 611, 30 P.3d 1255 (2001); State v. Bourgeois, 133 Wn.2d 389, 403, 945 P.2d

1120 (1997); State v. Smith, 106 Wn.2d 772, 780, 725 P.2d 951 (1986). The improper

admission of evidence is harmless error if the evidence is of minor significance in

reference to the evidence as a whole. Thomas, 150 Wn.2d at 871; Neal, 144 Wn.2d at

611; Bourgeois, 133 Wn.2d at 403.

      Application of harmless error standard

       It is not difficult for an appellate court to determine what evidence is important at

trial and what evidence is not. Experienced trial counsel focus on important evidence in

their closing arguments. If improperly admitted evidence was emphasized and relied on

by trial counsel in closing, the evidentiary error was likely harmful. See State v. Easter,

130 Wn.2d 228, 242-43, 922 P.2d 1285 (1996) (officer's opinion testimony regarding

defendant's guilt was not harmless where the prosecutor emphasized the evidence during

closing). Conversely, if improperly admitted evidence was not emphasized and relied on


                                                 2
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance


by trial counsel in closing, the evidentiary error was likely harmless. See State v.

Johnson, 42 Wn. App. 425, 432, 712 P.2d 301 (1985) (officer's testimony of defendant's

postarrest silence was harmless where no further evidence of the silence was admitted

and prosecutor did not return to the evidence at closing).

       In Atwood's initial closing argument she did not discuss Fowler or the other

comparators. In MSA's responsive closing, it briefly discussed Fowler and the other

comparators. In Atwood's rebuttal closing, she again did not discuss Fowler and the

other comparators with respect to her retaliation claims. She then told the jury: "The two

retaliation claims stand on their own. They have nothing to do with this [discrimination]

claim." Report of Proceedings (RP) at 4905.

      Atwood did not emphasize or rely on the improper comparator evidence to prove

that MSA retaliated against her for reporting gender discrimination or for reporting her

supervisor's false claims for compensation. 1 Because the comparator evidence was not

material to the outcome of Atwood's two retaliation claims, there is no reasonable

probability that it materially affected the outcome of those claims. As such, the

evidentiary error was harmless with respect to those special verdicts and they should be

affirmed.




       1
        Retaliatory discharge requires proof the employer retaliated because the
employee reported unlawful conduct; the employee need not prove the employer actually
committed the unlawful conduct. Hollenback v. Shriners Hosp., 149 Wn. App. 810, 821,
206 P.3d 337 (2009).

                                                 3
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance


        It was not until Atwood addressed her gender discrimination claim in her rebuttal

closing that she discussed Fowler's testimony and the comparator evidence. She told the

Jury:

        This is how we prove this case. We have proved it with comparators. This
        is our only evidence, besides Sandra Fowler and the things that we've
        talked about-you know, the Barbie e-mail, the statement by [Steve]
        Young about Karen Flynn-that's showing the discriminatory intent so that
        you can then connect the dots and say that one of the factors in her
        termination, Julie's termination, was gender . ...

                . . . None of these men are terminated. That's our case. That's our
        discrimination case. That's all it is. It has nothing to do with conspiracies,
        it has nothing to do with fake documents or what they did. That's our case.
        And we think it's enough for you to find discrimination Pl

RP at 4906, 4908 ( emphasis added).

        Atwood emphasized and relied upon the improper comparator evidence to prove

that MSA committed gender discrimination. Because the improper comparator evidence

was material to the outcome of that claim, the jury's special verdict for gender

discrimination must be reversed.




        The majority uses this quote to argue that Atwood emphasized and relied on the
        2

comparator evidence for all three of her claims. I do not construe her argument in that
manner. Although Atwood three times said the comparator evidence was how she proves
her case, the context shows she was referring to her gender discrimination claim.
       I acknowledge reasonable minds can differ on how to construe Atwood's
argument. But when reasonable minds can differ, our standard of review requires us to
affirm. Ultimately, deferring to the jury's verdict is difficult here, given the size of the
verdict and Atwood's evidence, which although sufficient, was "not strong." Majority
at 39.

                                                  4
No. 35872-1-III; No. 35911-5-III
Atwood v. Mission Support Alliance


       In conclusion, two of the three special verdicts should be affirmed because the

improper comparator evidence was harmless error with respect to those verdicts. For this

reason, I respectfully dissent.



                                         Lawrence-Berrey, J.




                                                5
