                                                               .     FILM
                                                             COURT OF'APPEALS DIV I
                                                             'STATE OF WASHING FON

                                                              2018 AUG -6 Ail 8:30



IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

ALONCITA MONROE,an individual,                  )
                                                )         No. 76478-1-1
                      Appellant,                )
                                                )         DIVISION ONE
               v.                               )
                                                )         UNPUBLISHED OPINION
THE CITY OF SEATTLE, a municipal                )
corporation,                                    )
                                                )         FILED: August 6, 2018
                      Respondent.               )
                                                )
       APPELWICK, C.J. — Monroe brought suit alleging failure to accommodate,

disability discrimination and harassment, and retaliation. She argues that the trial

court should have granted a new trial based on jury misconduct, that the trial

court's jury instructions were in error, and that the trial court erroneously excluded

hearsay. We affirm.

                                       FACTS

       Aloncita Monroe was an employee of the City of Seattle (City) in the Public

Utilities division. In 2011, she exhibited strange behavior at work. She appeared

overly nervous, was using exaggerated hand gestures, and her pupils were

constricted. The City ordered a fitness for duty examl (FFDE). Monroe failed, in

part because she tested positive for unprescribed drugs.




      1 An FFDE is a medical examination used to determine whether an
employee can safely perform his or her job.
No. 76478-1-1/2


       Monroe's physician informed the City that Monroe suffered from major

depression and anxiety disorder. The physician's letter acknowledged that Monroe

had used unprescribed medication to help deal with stress. And, the letter stated

that Monroe's ability to function was limited due to her condition, especially with

respect to front desk duties. The City agreed to accommodate her under the

Americans with      Disability Act2 (ADA), by either providing            reasonable

accommodation for her within her current job title or another job title by identifying

job vacancies with duties that she could perform.

       The City began the accommodation process to find a suitable position for

Monroe. It ultimately placed her in an Administrative Specialist I position with the

Seattle Department of Transportation(SDOT), and her physician approved the job.

Monroe began work in her new position on November 7, 2012. Her supervisor

was Paul Jackson.

       On February 8, 2013, Monroe's colleague who worked in the same office

space observed Monroe acting strangely. That employee described her behavior

as strange physical movements, walking aimlessly, staring at her computer

monitor without producing work, gazing at the ceiling repeatedly, and talking and

mumbling loudly to herself. Another colleague stated that Monroe made an odd

request to ride along with SDOT crews, and was "dancing around his office in

circles bobbing her head up and down."

       Employees reported this to Jackson. After Jackson personally observed

Monroe's behavior, he alerted the SDOT safety office. Safety Officer Scott Jensen,

       2 42   U.S.C. §§ 12101-12213.

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No. 76478-1-1/3


determined that an FFDE was warranted. Jackson and Jensen met with Monroe

and told her that they were seeking an FFDE. Jackson and Jensen informed her

that declining to undergo the FFDE could result in disciplinary action. They gave

Monroe an opportunity to call her union representative from the privacy of another

room, but she was unable to reach the union. Monroe decided to refuse the FFDE,

and signed the consent form memorializing her refusa1.3

      After Jackson collected her belongings, Monroe went into the employee

locker room. Jackson testified that he knocked on the locker room door after about

7 to 10 minutes, and when Monroe opened the door she was on the phone with

her union representative. Monroe handed Jackson the phone, and the union

representative stated that Monroe was ready to undergo the FFDE. Jackson

responded that, because Monroe had already signed the form declining the FFDE,

the FFDE was no longer possible unless he received instructions from his

superiors. The union representative stated that someone would soon contact

Jackson, and Jackson returned to his office.

       After that, Jackson testified, Monroe could not be located at the office and

her car was no longer in the parking lot. Monroe contradicted this. She testified

that she then met Jackson in a common area, handed her badge to over him, and

left the building. No FFDE occurred. Monroe was terminated.




      3 Monroe's testimony took a different tone. She testified that, when she was
contemplating whether to accept or decline the FFDE, it seemed Jackson had
"snapped" and that she was intimidated and fearful.

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No. 76478-1-1/4


       Monroe filed a complaint for damages under the Washington Law against

Discrimination4 (WLAD). She alleged failure to accommodate, discrimination

based on disability, gender, and sex, a hostile work environment, and retaliation.

The claims proceeded to trial, and the jury returned a verdict in favor of the City.

       After the verdict, Monroe moved for a new trial. The motion was based on

one juror's suspicions that the jury may have deliberated without him and Monroe's

argument that the jury instructions were erroneous. The trial court denied the

motion. Monroe appeals.

                                   DISCUSSION

       Monroe makes four arguments. First, she argues that a new trial was

warranted, because a juror provided a declaration that stated he believed that the

other jurors deliberated without him. Second, she argues that jury instruction 13

misstated the law, because it stated that a disparate treatment plaintiff must be

able to perform the essential functions of her job. Third, she argues that the trial

court erred by not giving a jury instruction on implicit bias, pretext for termination,

and the City's continuing duty to accommodate. Finally, she argues that the trial

court erred in excluding evidence of the reputation and history of one of the City's

key witnesses, Monroe's supervisor.5




      "Ch. 49.60    RCW.
        5 She also seeks attorney fees if she prevails. But, because we affirm the
trial court, Monroe is not entitled to attorney fees. Likewise, we need not address
the City's cross appeal.

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No. 76478-1-1/5


  I.   Juror Misconduct

       Monroe first argues that the trial court erred by denying a mistrial due to

juror misconduct. That motion relied in part6 on allegations of misconduct from

one juror, who was the only African American juror. The facts alleged by that juror

were as follows:

       I also[7]felt that there was misconduct in the jury deliberation process.
       We deliberated by going through the jury verdict form. The failure to
       accommodate claim was first. Three of us voted "yes," meaning we
       voted in favor of Ms. Monroe on that claim, which caused the group
       to go on to the next claim, and then come back and revisit the first
       claim. Each time three of us voted "yes." I voted in favor of a "yes"
       vote to each of the claims. We were told by Judge Erlick not to
       deliberate when anyone was out of the room. Toward the end of the
       morning, I went to the bathroom. I was in there for a few minutes.
       As I went to open the bathroom door to rejoin the group, I could hear
       the jurors talking, but I could not hear what was being said. When I
       opened the door, everyone stopped talking, and two of the jurors
       looked at me with guilty expressions. Then, someone said, "let's do
       another vote." Without any argument or explanation, one of the
       jurors who had voted "yes" with me on the first claim, switched her
       vote to "no." Within seconds, the foreperson hit the buzzer and we
       were done without further discussion. I felt like this was a rigged
       outcome, and that the group convinced her to change her mind out
       of my presence.
Monroe contends that this evidence warrants a new trial. The State responds that

Monroe has provided no evidence of misconduct, but merely speculation. And, in

any event, the State argues, any such misconduct would inhere in the verdict.




       6 The majority of the issues that Monroe raised in her motion for mistrial
related to jury instructions and evidentiary decisions. But, on appeal, Monroe's
mistrial argument is based solely on juror misconduct.
        7 The juror's declaration also stated that he felt the deliberations went too
fast, and the jurors did not adequately consult exhibits. But, Monroe relies primarily
on this quoted portion of the juror's declaration.

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No. 76478-1-1/6


       Courts generally do not inquire into the internal process by which the jury

reaches its verdict. Breckenridge v. Valley Gen. Hosp., 150 Wn.2d 197, 204, 75

P.3d 944 (2003). In considering whether to declare a mistrial based on alleged

juror misconduct, courts must ask whether the facts alleged "inhere in the verdict."

Long v. Brusco Tug & Barge, Inc., 185 Wn.2d 127, 131, 368 P.3d 478(2016). The

party alleging such juror misConduct has the burden to show that misconduct

occurred. State v. Hawkins, 72 Wn.2d 565, 566, 434 P.2d 584 (1967). A strong,

affirmative showing of misconduct is necessary in order to overcome the policy

favoring stable and certain verdicts and the secret, frank, and free discussion of

the evidence by the jury. State v. Balisok, 123 Wn.2d 114, 117-18, 866 P.2d 631

(1994). Appellate courts analyze whether misconduct inheres in the verdict de

novo. Long, 185 Wn.2d at 131.

       The individual or collective thought processes leading to a verdict inhere in

the verdict and cannot be used to impeach a jury verdict. Breckenridge, 150 Wn.2d

at 204-05. Thus, a juror's postverdict statements regarding the way in which the

jury reached its verdict cannot be used to support a motion fora new trial. Id. at

205.

       Long presents an example of alleged misconduct that inheres in the verdict

and does not warrant a new trial. The court was provided with "the somewhat

conflicting declarations of four jurors, which characterize what one or two of their

fellow jurors said based on their disclosed [life] experiences." 185 Wn.2d at 138.

The court held that this did not warrant setting aside the verdict. Id. at 137. It cited

the fact that the jurors' recollections of what occurred were conflicting. Id. at 138.


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No. 76478-1-1/7


And, it went on to hold that setting aside a verdict based solely on jurors offering

their own life experiences was not warranted in light of the policy in favor of stable

verdicts. Id.

        The evidence does not warrant setting aside the verdict here, either.

Monroe offers a single declaration that is based on suspicion alone as to what was

discussed. The juror did not hear a discussion. He did not have knowledge that

a discussion of issues did occur. He infers that it did from the expressions on other

jurors' faces when he returned. This does not amount to the "strong, affirmative

showing" of misconduct necessary to overcome the policy in favor of stable

verdicts.8 Monroe cites no case where a court has ever afforded such relief based

on mere suspicion that misconduct of this nature may have occurred. Monroe

does not carry her heavy burden to disturb the jury's verdict.8

  II.   Jury Instructions

        Monroe argues that the trial court erred in instructing the jury. First, she

argues that instruction 13 misstated the law. Second, she argues that the trial




        8 Monroe also contends that the jury's conduct violated RCW 4.44.300.
That statute permits a jury to separate unless good cause is shown to sequester
the jury. Id. Our Supreme Court has instructed that if a jury is separated in
violation of RCW 4.44.300, a presumption arises that the defendant has been
prejudiced. State v. Smalls, 99 Wn.2d 755, 766, 665 P.2d 384 (1983). Monroe
claims that she is entitled to this presumption. But, here one juror left merely to
use the restroom. Monroe has not established that RCW 4.44.300 was violated.
        9 Monroe seems to suggest in her brief that an evidentiary hearing would
be warranted. But, she did not request one. Her motion below sought a new trial.
Her assignment of error clearly states, "The trial court erred in denying plaintiff a
new trial based on juror misconduct." The trial court's decision being reviewed is
whether it erred in denying a mistrial. Whether further fact finding was warranted
is not before us.

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No. 76478-1-1/8


court erred by not giving additional jury instructions on:(1) implicit bias,(2) pretext

for termination, and (3) an employer's continuing duty to accommodate.

       A. Misstatement of Law: "Essential Functions"

       Monroe argues that instruction 13 misstated the law. That instruction set

forth the elements of Monroe's disability discrimination claim:(1) that Monroe has

a disability, (2) that she was able to "perform the essential functions of the job in

question with reasonable accommodation," and that (3) the disability was a

substantial factor in her termination. Monroe argues that this instruction was error,

because it included the "essential functions" element. This court reviews whether

a jury instruction reflects an accurate statement of the law de novo. Gregoire v.

City of Oak Harbor, 170 Wn.2d 628, 635, 244 P.3d 924 (2010).

       Instruction 13 matched, verbatim, 6A Washington Practice: Washington

Pattern Jury Instructions: Civil 330.32, at 375 (6th ed. 2012)(WPI). Monroe

acknowledges this. Thus, her argument is that WPI 330.32 misstates Washington

law.

       In support of this argument, Monroe cites Johnson v. Chevron U.S.A., Inc.,

159 Wn. App. 18, 33, 244 P.3d 438(2010). In that case, Johnson alleged that his

former employer discharged him due to his disability and race. Id. at 21. In

addressing whether the jury was properly instructed, the court reasoned that

"Johnson was required to prove only that his race or disability was a substantial

factor in Chevron's decisions." Id. at 33.

       Monroe argues that this quote establishes that an employee need not also

prove that he or she could perform the essential functions of his or her job. But,


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No. 76478-1-1/9


the context of the quote shows otherwise. The court made the statement in holding

that it was error to require Johnson to prove that he was treated differently than

other employees. Id. at 32-33. And, although the instructions included an

essential functions element, the court did not address that portion of the

instructions, and thus did not hold that it was error. Id. at 32 n.31, 33.

       And,the essential functions element is drawn from another case, Havlina v.

Dep't of Transp., 142 Wn. App. 510, 517, 178 P.3d 354 (2007). There, the Court

reasoned that "WLAD's prohibition against disability discrimination does not apply

if the disability prevents the employee from properly performing his job." Id. And,

it specifically mentioned essential functions: "If an employee is not able to perform

the essential functions of his job, the agency's responsibility to accommodate the

employee is limited to making a 'good faith' effort to locate a job opening for which

the employee is qualified." Id.(emphasis added).

       Under Havlina, WPI 330.32 does not misstate the law. The trial court's

inclusion of an essential functions element in instruction 13 was not error.

       B. Jury Instructions not Given

       Monroe argues that the trial court erred by not instructing the jury on: (1)

implicit bias,(2) pretext for termination, and (3) the employer's continuing duty to

accommodate. A trial court's decision on whether to give a particular instruction is

reviewed for an abuse of discretion. Terrell v. Hamilton, 190 Wn. App. 489, 498,

358 P.3d 453(2015)




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No. 76478-1-1/10


          1. Implicit Bias

       Monroe argues that the facts of this case warranted an implicit bias

instruction to the jury, because, among other things, Monroe is an African

American plaintiff, and there was only one juror who was African American.

Washington courts have recently expressed concern over implicit bias that can

affect the equitable administration of justice. See, e.g., In re Marriage of Black,

188 Wn.2d 114, 134-35, 392 P.3d 1041 (2017)(holding that implicit biases affected

a judgment); State v. Saintcalle, 178 Wn.2d 34, 49, 309 P.3d 326 (2013)("[W]e

should recognize the challenge presented by unconscious stereotyping in jury

selection and rise to meet it."), abrogated on other grounds by City of Seattle v.

Erickson, 188 Wn.2d 721, 734-35, 398 P.3d 1124 (2017).

       But, this instruction is similar in substance to instruction one, which

instructed jurors to "reach your decision based on the facts proved to you and on

the law given to you, not sympathy, bias, or personal preference." Monroe cites

no Washington authority that has ever found error in not giving an implicit bias

instruction. And, Monroe was able to and did address her implicit bias theory in

her closing argument. The trial court did not abuse its discretion in declining to

give the instruction.

          2. Pretext

       Monroe further argues that the trial court should have given an instruction

on the possibility of using a false pretext for firing an employee due to a disability.

Monroe's offered pretext instruction stated, "You may find that the plaintiffs

disability was a substantial factor in the defendant's decision terminate [sic] the


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No. 76478-1-1/11


plaintiff if it has been proved that the defendant'[sic] stated reasons for the decision

is [sic] not the real reasons, but is a pretext to hide disability discrimination."

Monroe argues that, because of the paucity of African American jurors and the lack

of an implicit bias instruction, the pretext instruction "would have helped the jury

connect the dots to a discriminatory motive."

       Monroe argues that this case warrants a different result than Farah v. Hertz

Transporting, Inc., 196 Wn. App. 171, 383 P.3d 552 (2016), review denied, 187

Wn.2d 1023, 390 P.2d 332 (2017). There, Farah and his co-plaintiffs were

"shuttlers" for Hertz Transporting at Sea-Tac airport. Id. at 174. They brought suit

against Hertz for nationality and religious discrimination, because Hertz required

them to clock out while engaging in their Muslim prayers. Id. at 175. Farah

unsuccessfully requested a pretext instruction nearly identical to the pretext

instruction requested by Monroe, except the term "disability" was replaced by

"religion or national origin." Id. at 177. The Court of Appeals surveyed competing

federal decisions, some of which endorsed the instruction, and some of which held

that the instruction might confuse the jury. Id. at 179-80. It ultimately held that,

"while the instruction might be appropriate, the arguments in its favor are not

compelling enough to hold that it is an abuse of discretion to refuse to give the

instruction." Id. at 181.

       The same is true here. To the extent that Monroe's theory of the case was

that the City had presented a pretextual reason for terminating her, she had the

opportunity to present that theory during her case in chief. And, in her closing

arguments, she articulated her theory of pretext to the jury.


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No. 76478-1-1/12


       The trial court did not abuse its discretion in denying Monroe's proposed

pretext instruction.

          3. Continuing Duty to Accommodate

       Monroe also contends that the trial court should have given an instruction

that explicitly informed the jury about the City's continuing duty to accommodate.

Monroe's proposed instruction 30 stated,

              The duty to accommodate is a continuing duty that is not
       exhausted by one effort. Trial and error may be necessary as part
       of the interactive process to satisfy the employer's burden. The
       employer's obligation to engage in the interactive process extends
       beyond the first attempt at accommodation when the employee asks
       for a different accommodation or where the employer is aware that
       the initial accommodation is failing and further accommodation is
       needed.

              If a reasonable accommodation turns out to be ineffective and
       the employee with a disability remains unable to perform an essential
       function, the employer must consider whether there would be an
       alternative reasonable accommodation that would not pose an
       undue hardship. The employer has an obligation to affirmatively take
       steps to help the disabled employee continue working at the existing
       position or attempt to find a position compatible with the limitations.

The trial court declined to give the instruction, because it believed this issue was

adequately addressed in instruction 10. Instruction 10 stated that "[a]n employer

must provide a reasonable accommodation for an employee with a disability. . .

The obligation to reasonably accommodate applies to all aspects of employment,

and .. ..[t]here may be more than one reasonable accommodation of a disability."

       Monroe's argument on this continuing duty instruction fails. First, instruction

10 was a correct statement of the law. No Washington case has found an abuse

of discretion for not using continuing duty to accommodate language in the jury



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No. 76478-1-1/13


instruction. She instead cites a single federal case, Humphrey v. Mem'l Hosps.

Ass'n, 239 F.3d 1128, 1138 (9th Cir. 2001), where the court observed that

employers have a continuing duty to accommodate. That a federal court made

this comment does not establish that the trial court here abused its discretion in

not giving a continuing duty instruction.

        Second, Monroe was able to argue her theory of the case without the

proposed instruction 30. In closing argument, she quoted the City's disability

resource guide: "'The obligation to provide reasonable accommodation is on-

going and may arise at any time during an individual's employment.'" She also

stated in closing that "she was not succeeding, and they needed the right to

accommodation [sic], it is on-going, they needed to give her that accommodation."

        We hold that the trial court did not abuse its discretion in denying any of

Monroe's proposed instructions.

 III.   Exclusion of Evidence about Supervisor

        Monroe next argues that the trial court erred in excluding evidence related

to Jackson, who was her supervisor and also one of the City's key witnesses.

        The trial court redacted an e-mail in which Monroe stated that she had heard

rumors that Jackson had a history of sexual harassment with females.

        In another writing, Monroe referenced Jackson being a "womanizer and a

big bully," Jackson asking if Monroe was married, and Monroe catching Jackson

staring at her. The trial court redacted these references, as well. It found the

evidence should be excluded under ER 403, in part because Monroe's sexual




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No. 76478-1-1/14


discrimination claim had been dismissed and because Monroe had already

established her concerns about Jackson's behavior.10

       Under ER 403, a trial court may exclude relevant evidence if its probative

value is substantially outweighed by the danger of unfair prejudice or because it is

cumulative. This court gives a trial court considerable discretion in applying ER

403. Carson v. Fine, 123 Wn.2d 206, 226, 867 P.2d 610(1994). It will reverse an

ER 403 decision only in the exceptional circumstance of a manifest abuse of

discretion. Id.

       Monroe points out that the evidence of stories she had heard about Jackson

and her own experiences interacting with Jackson would have given better context

for her actions. But, she was not denied the opportunity to explain her actions. In

her trial testimony about the events leading to her termination, Monroe testified, "I

never had a man of Paul's size be rude to me or disrespectful to me." She testified

that he raised his voice to a level she had never heard, and she felt intimidated.

       Here, Monroe's sexual discrimination claim had been dismissed. Only the

evidence going to the dismissed claim was excluded. Absent that claim, evidence

of prior uncomfortable or inappropriate encounters of a sexual nature between



        10 In her brief, Monroe contends that the trial court excluded the evidence
as hearsay. The record shows that the City moved to exclude in part based on
hearsay, but it primarily argued that the statements' "tiny probative value .. . is
overwhelmed by the unfair prejudice." And, the trial court did not discuss the
hearsay argument at length, but cited ER 403 and mentioned that the evidence
"opens up a whole... collateral can of worms," and "I think you have established
her concerns [about Jackson]." This shows that the trial court excluded the
evidence based on ER 403. Hearsay was, at most, a secondary ground for the
ruling.

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No. 76478-1-1/15


Jackson and Monroe, or rumors about Jackson's personal conduct, would have

been highly prejudicial to the City.11

       The trial court did not violate its considerable discretion in applying ER 403.

       We affirm.




WE CONCUR:



      Gufg,yr'




        11 Monroe also argues that the evidence should have been admitted
because it was critical to proving her retaliation claim. But, as the City points out,
instruction 17 required Monroe to prove only that (1) she requested an
accommodation due to disability or made a complaint about conduct, and (2) that
request or complaint was a substantial factor in her termination. It did not require
Monroe to specifically prove that her complaint related to protected conduct. Thus,
any evidence that Monroe made a complaint about conduct was necessarily about
protected conduct. The evidence was not necessary for the retaliation claim, and
the trial court did not abuse its discretion in excluding it.

                                         15
