      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

SUSAN PURNELL-CARLSON,                      )   No. 76354-7-1
                                            )
                     Appellant,             )   DIVISION ONE
                                            )
      v.                                    )   UNPUBLISHED OPINION
                                            )
THE BOEING COMPANY, INC.,                   )
a Delaware corporation,                     )
                                            )
                     Respondent.            )   FILED: March 18, 2019
                                            )

       LEACH, J. — In this employment discrimination case, Susan Purnell-

Carlson (Carlson) appeals a judgment entered after a jury verdict in favor of The

Boeing Company.       She challenges trial court decisions about requests for

summary judgment, a directed verdict, a judgment notwithstanding the verdict,

and a new trial. She also challenges certain jury instructions and various trial

court evidentiary rulings. Because Carlson has not shown that she is entitled to

appellate relief on any issue, we affirm.

                                      FACTS

       Carlson started working at Boeing in November 1996.              On her

preemployment questionnaire, she noted that she had three months of treatment

in 1990 for posttraumatic stress disorder (PTSD) resulting from her divorce.
No. 76354-7-1 /2



Carlson advanced through several different business- and engineering-related

positions at Boeing.

      While at Boeing, Carlson took two medical leaves related to stress-

induced depression and anxiety. She first took leave from June to August 2001.

On her return-to-work form, her provider noted "R/O PTSD" (rule out PTSD) as

an "impression," diagnosed her with major depression, and indicated that she

was ready to work but that she should continue counseling.

      Carlson took a second leave from mid-April through early July 2010 for a

"stress incident" at work and as medical leave for other issues.           In her

Department of Labor and Industries report, Carlson described the stress incident

as an anxiety attack stemming from a conflict over resources for a project. She

did not request any disability accommodation. Boeing did not ask if she needed

help transitioning back to work. Carlson talked to her manager about the incident

and, once she returned, she asked him how to proceed with work.

      In 2012, Carlson accepted a position as engineering project manager on

the team being assembled by senior project manager Richard Heckt to

troubleshoot the 787 airliner program. Heckt and Carlson agree that they initially

had a good working relationship. Heckt testified that Carlson "did really well"

when she started with the new group.         Carlson never told Heckt about a

diagnosis of anxiety disorder or PTSD. Nor did she ever tell him that she had

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No. 76354-7-1 /3



taken two leaves of absence for stress-related illnesses. And Heckt did not have

access to her medical files.

       From March to August 2013, Carlson's and Heckt's interactions grew

tenser. During this time, Carlson e-mailed higher level managers indicating that

she struggled with stress and with working with Heckt. She never contacted

Human Resources(HR)about accommodation.

       Heckt and Carlson disagree about certain events occurring between

March and August 2013. They agree that a March 2013 meeting marked the

turning point in their work relationship. Carlson left the meeting early) During

the meeting, Heckt thought Carlson appeared upset. The anger she directed

toward Heckt surprised him. Carlson testified that she left the meeting early to

"decelerate" the situation and prevent a stress incident. But her departure also

prematurely ended the meeting.2

       Carlson and Heckt agree that their relationship soured after this meeting.

They both point to the same e-mail exchange. Heckt asked Carlson to "please

adhere to management direction and do not freelance on these charts." Carlson

replied she would follow the "old way" and "not streamline, lean out or otherwise

        1 The meeting appears to have occurred in March 2013, although in her
brief Carlson identifies it as occurring in April 2013. Her cited pages of the record
do not indicate this as the month of the meeting.
       2 The parties differ in their testimony as to whether Carlson "packed up her
computer" before leaving or slipped out, receiving her computer later from
another attendee.
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No. 76354-7-1 /4



improve work processes in any way that is visible to anyone other than myself

and my direct manager in private." She added,"Do 1 have to write this 100 times

on the chalkboard? Have a good day, Rick." Heckt found this e-mail adversarial.

Carlson described it as an effort to restore the relationship.

       Carlson testified that after the March 2013 meeting she "felt threatened"

by Heckt. Before her August 2013 interim performance evaluation, she wrote

comments in her journal reflecting her anger toward Heckt. She planned to

"stand up for herself" at the meeting despite what she felt was "mistreatment."

On August 9, 2013, Carlson met with Heckt and another manager, Julius Rivers,

for her interim performance evaluation.

       Carlson testified that she felt tension in the meeting room as a result of the

March meeting. She also said that the physical experience of being present for

her interim performance evaluation differed from her other experiences with

Heckt. She testified that Heckt's statements during the meeting triggered a

memory of her teenage sexual abuse. She said that she stood up and imitated

his mannerisms as a way to let Heckt know that she felt threatened by him. She

believed, given his response, that he found this funny. So she imitated him a

second time. Next, she told Heckt that he made her "feel like [she] want[ed] to

get a gun or a knife" and that she felt "a need to defend" herself.3 Carlson

      3 All three witnesses, Carlson, Heckt, and Rivers, agree she made these
statements. Both Rivers in his e-mail about the meeting and Carlson in her
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No. 76354-7-1 / 5



testified that after these statements, she told Heckt that she was not making a

threat. She also told Heckt that she was a "battered woman" and he could not

treat her like that. Heckt testified that both Heckt and Rivers told her that her

statement was a "threat of violence which is not acceptable." The meeting

continued after this exchange without any more discussion about how Heckt

perceived her words. Carlson viewed the evaluation she received at the meeting

as being particularly negative.

       About two hours after she left the meeting, Carlson sent an e-mail to

Heckt and Rivers. In her e-mail, she said that Heckt's "aggressive behaviors

[made her] fearful and . . . want to defend" herself. In addition, she stated that

she felt like she "need[ed] to be armed and ready to take action to do so." She

noted in her e-mail that she "did not say this to threaten" Heckt but that "[i]t was a

description of [her] feelings and fear of harm" which caused her to think that she

needed "to be ready to combat." She ended the e-mail with a request to be

moved to a different organization.

       The day after the interim performance meeting, Carlson sent an e-mail to

a higher level manager describing her difficulties working with Heckt. She said

that if she was not reassigned, she would likely leave the company. She also e-


statement to the internal investigator reported that she said Heckt's behavior
made her want to "shoot or stab" him. However, Carlson contends that she did
not actually make this statement, and Heckt does not indicate that she did.
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No. 76354-7-1 /6



mailed     Dan    Larsen   of   HR    and    asked   for   information    for   the

"mitigation. . . available. .. to buffer employees from" the aggressive use by

managers of overtime disciplinary processes. Larsen offered to meet with her in

person. She did not follow up. She took the following week off. In none of her

correspondence with Heckt, HR, or any other Boeing employee after this incident

did she mention PTSD.

         Heckt became increasingly concerned about Carlson's statement after the

meeting because of how "direct" it was, how it "focus[ed] in on [his] behaviors" in

"a way that was kind of inspiring her to violence." On Monday, August 12, he

reported the statement to HR and requested an investigation by Boeing security.

After Carlson returned to work, she and Heckt met twice. During one meeting,

Heckt issued a disciplinary memo for unauthorized overtime. During the second,

he described his expectations for her behavior going forward. She said nothing

suggesting PTSD as a cause of her conduct.

         Carlson's statements caused Boeing to initiate two separate procedures.

The first was a threat management process through the Employee Assistance

Program (EAP) that attempts to prevent the threat from becoming actual

violence. This process resulted in psychologist Dr. Tyson Bailey's report. The

second was the disciplinary investigation that provided information to the

disciplinary board about the actual circumstances of the statements.

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No. 76354-7-1/ 7



      As a part of the threat management process, Boeing suspended Carlson

and directed her to report to an EAP medical provider retained by it, Dr. Bailey.

Carlson testified that she was under the impression that Boeing would have

access to Bailey's report because she signed Bailey's release form and that she

believed she "told Boeing through Tyson Bailey" of his diagnosis. But the release

form she signed for EAP stated that only a limited amount of information would

be shared with a supervisor or other authorized representative. This limited

information was (1) whether or not Carlson contacted EAP, (2) whether or not

EAP recommended treatment, (3) whether or not Carlson participated •and

complied with any treatment plan, and (4) any other information Carlson

indicated. The form did not include any authorization to release information

about any diagnosis. Carlson did not modify the form to authorize disclosure of

any additional information to Boeing. Carlson also admitted that she never asked

Boeing for an "accommodation."

      On September 10, 2013, Bailey submitted his evaluation of Carlson to

Boeing medical and EAP. Bailey reported that Carlson expressed "deep regret"

over her statements. He found that she was at a "low risk for engaging in

violence toward her coworkers" and that as a result of his analysis, he had "no

significant concerns" regarding her "potential for violence toward self or others."

He also found "[n]c, evidence.. . that would suggest Ms. Carlson has a pattern of

                                       -7-
No. 76354-7-1/8



making threatening statements."     His "diagnostic impression" was "[a]nxiety

disorder not otherwise specified." He also noted "[p]osttraumatic features that do

not currently qualify for a PTSD diagnosis."   Bailey's report does not say that

Carlson's anxiety caused her statements about the gun and the knife, but he

testified that her "frustration with her manager" might be the underlying cause of

the conduct. Carlson did not tell Bailey that she thought her anxiety caused her

to make these statements.

      During his evaluation, Bailey asked Carlson about her family and past

history. She reported sexual abuse by a guardian.         Because he was only

evaluating her risk as a threat, he did not focus on whether she met the criteria

for a PTSD diagnosis.

      Two years later, Carlson retained an expert witness, psychologist Dr.

Christmas Covell, who diagnosed her, for the first time, with PTSD. Covell also

concluded that during August 2013, Carlson was probably "experiencing

symptoms of post traumatic stress. . . that led to her acting out. . . and making

the statement she made."

      After the August 2013 meeting, Boeing's disciplinary investigation under

Robert LeBlanc proceeded independent from, but at the same time as, the threat

management assessment. Carlson told LeBlanc that she thought abuse in her

past caused her to experience a high level of defensiveness. She did not tell him

                                       -8-
No. 76354-7-1/ 9



she suffered from a "mental health problem, disorder impairment or anything of

the sort." And she did not describe the perceived threatening statement as the

result of an out-of-body experience or a flashback. Nor did she tell LeBlanc she

needed an accommodation.

         LeBlanc drafted a statement for Carlson based on his interview with her.

He included in the draft a statement that Carlson said she wanted to "get a gun

and shoot [Heckt] or stab [him]."      Carlson read and signed the statement.

LeBlanc reviewed HR reports and interviewed additional witnesses, including

Heckt.     He concluded that Carlson had threatened violence and violated

employment policy at Boeing.

         Boeing's Employee Corrective Action Review Board (ECARB) decides

what disciplinary actions to take for serious violations of employment policy,

including threats of violence. The group includes members of management and

a senior member of HR who serves as chairperson. ECARB follows Boeing's

Employee Corrective Action Process Requirements (ECAPR). ECAPR defines a

"threat" as "[a]ny communication, including body language, that involves a threat

to harm and may cause fear or reasonable concern for the safety, health, or well-

being of others." A threat generally results in a suspension but if an "aggravating

factor," such as a "directed specific threat to harm," was involved, ECARB

typically discharges the employee.

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No. 76354-7-1/ 10



       LeBlanc's report contributed to ECARB's review of Carlson. Because of

privacy considerations, ECARB did not review Bailey's report or any other

medical information. Carlson did not authorize ECARB to review Bailey's report.

She did not provide information about her mental health to HR, LeBlanc, or

ECARB.     Boeing does not automatically release this kind of information to

managers or investigators and without an authorization, medical personnel did

not feel free to share the information.

       ECARB met on October 2, 2013, and voted to discharge Carlson. It found

her statement at the August 2013 meeting and her subsequent e-mail included

threats aggravated by their specific nature. Boeing terminated her on October

14,2013.

       Carlson filed a complaint against Boeing with the Equal Employment

Opportunity Commission (EEOC). She alleged employment discrimination on

the basis of sex, age, and retaliation but did not claim disability discrimination.4

In July 2014, she followed up with a narrative letter that described her grievance

with Boeing. And again she did not complain about disability discrimination.

Boeing advised Carlson about its in-house process for appealing her firing. She

did not pursue this process.

        4 The trial court noted, "It appears to be undisputed in the record that
disability discrimination [was] not brought to the EEOC's attention and would not
have been considered by them." Carlson's charge of discrimination was signed
on November 18, 2013.
                                        -10-
No. 76354-7-1/ 11



      More than a year after her termination, Carlson sued Boeing. She claimed

that Boeing had violated the Washington Law Against Discrimination (WLAD)5 by

discriminating against her because of her disability. This was the first time she

asserted disability discrimination. Both parties moved for summary judgment.

The trial court denied the motions because of disputed issues of material fact.

After a trial, the jury returned a verdict in favor of Boeing. Afterward, Carlson

asked for judgment as a matter of law and for a new trial. The trial court denied

both requests. Carlson appeals.

                                   ANALYSIS

      Carlson appeals the trial court's denial of her motion for summary

judgment, denial of her motion for judgment as a matter of law (judgment

notwithstanding the verdict), and denial of her motion for a new trial. She claims

that the trial court should have decided, as a matter of law, that Boeing fired her

because of a disability in violation of the WLAD. She asks this court to remand

for a damages trial. Alternatively, she asks this court to grant her a new trial

because, she claims, the trial court abused its discretion when making several

evidentiary determinations and when instructing the jury.

       Carlson fails to meet her burden on any of her claims. We affirm.




       5 Ch. 49.60   RCW.
                                       -11-
No. 76354-7-1/ 12



                          Motion for Summary Judgment

       Carlson appeals the trial court's denial of her motion for summary

judgment. An appellate court will review the denial of a summary judgment

request if based upon a pure question of law.6 But an appellate court will not

review the denial of this request if the trial court denies it because it finds that a

dispute about material facts exists.7 Here, the trial court denied the summary

judgment because the parties presented evidence disputing material facts.8 So

we decline to review this decision.

                     Motion for Judgment as a Matter of Law

       Carlson claims the trial court should have granted her postverdict request

for judgment as a matter of law (judgment notwithstanding the verdict) because

the evidence showed that Boeing discriminated as a matter of law when it fired

her. But substantial evidence presented to the jury supported a finding that

Boeing did not have notice of her claimed disability. As a result, this claim fails.

       When we review a trial court's decision to deny a request for judgment as

a matter of law, we use the same standard as the trial court.6 Courts grant a

motion for judgment as a matter law only if "after viewing the evidence in the light

      6  Robb v. City of Seattle, 176 Wn.2d 427, 433, 295 P.3d 212(2013).
       7 Canfield  v. Clark, 196 Wn. App. 191, 194, 385 P.3d 156 (2016).
       8 In her brief, Carlson periodically states, "That is not material" after
disputed facts. This is not sufficient to demonstrate that there were no actual
material facts in dispute.
       9 Hizev v. Carpenter, 119 Wn.2d 251, 271, 830 P.2d 646 (1992).
                                        -12-
No. 76354-7-1 /13



most favorable to the nonmoving party and drawing all reasonable inferences,"

no substantial evidence exits to sustain a verdict for the nonmoving party.1° No

substantial evidence exists when the evidence is insufficient to persuade a fair-

minded person of the truth of the declared premise.11 We do not substitute our

own judgment for the jury's. A court may grant a request for judgment as a

matter of law only if "there is no doubt as to the proper verdict."12

      The WLAD provides employees with "[t]he right to obtain and hold

employment without discrimination."13         Specifically, an employer may not

"discharge... any person from employment because of. . . the presence of any

sensory, mental, or physical disability."14 The WLAD defines a "disability" as "the

presence of a sensory, mental, or physical impairment that: (i) Ws medically

cognizable or diagnosable; or (ii) [e]xists as a record or history; or (iii) [i]s

perceived to exist whether or not it exists in fact."15 And it defines "impairment" to

include "[a]ny mental, developmental, traumatic, or psychological disorder,

including . . . emotional or mental illness."16   To be disabling, the impairment

       10 Schmidt v. Coogan, 162 Wn.2d 488, 491, 173 P.3d 273 (2007) (citing
Hizev, 119 Wn.2d at 271-72).
       11 Martini v. Boeing Co., 88 Wn. App. 442, 451, 945 P.2d 248 (1997), affd,
137 Wn.2d 357, 971 P.2d 45 (1999).
       12 Schmidt, 162 Wn.2d at 493; Burnside v. Simpson Paper Co., 123 Wn.2d
93, 108, 864 P.2d 937(1994).
       13 RCW 49.60.030(1)(a).
       14 RCW 49.60.180(2).
       15 RCW 49.60.040(7)(a).
       16 RCW 49.60.040(7)(c)(ii).
                                       -13-
No. 76354-7-1 /14



must prevent or severely restrict the individual from engaging in a major life

activity. The impairment's impact must also be permanent or long-term.17

       A disabled employee has three potential claims against an employer who

violates the WLAD:       disparate impact, disparate treatment, and failure to

accommodate.18        Carlson asserted disparate treatment and failure to

accommodate claims. Both claims required that she establish a disability and

connect that disability to her work performance.

       Both of Carlson's claims fail because she did not establish, as a matter of

law, that Boeing had notice of her disability. Carlson's conduct was first linked to

a PTSD diagnosis more than a year after she was terminated. Boeing's and

EAP's records do not include any reported diagnosis of PTSD, do not suggest

that accommodation should be made at work for Carlson's anxiety, and do not

link PTSD or anxiety to the conduct that led to her firing. Even Bailey's report

about her conduct did not include a PTSD diagnosis. And it did not connect her

conduct to any sort of disability. More than a year after the firing, Covell provided

the first claimed connection between PTSD and Carlson's conduct. Even if

ECARB and Boeing's administration had access to all of Carlson's files when she

was fired, they would still not have had any information connecting PTSD to the

conduct for which it fired her.

       17 Burchfiel v. Boeing Corp., 149 Wn. App. 468, 481, 205 P.3d 145 (2009).
       18 Fey v. State, 174 Wn. App. 435, 447, 300 P.3d 435 (2013).
                                       -14-
No. 76354-7-1 / 15



       Carlson fails to demonstrate that Boeing had notice of her disability and

therefore fails to establish a basic element required to prove disability

discrimination under either theory. For this reason, her request for judgment as a

matter of law fails. It fails for other reasons as well.

   A. Disparate Treatment

       With jury instruction 11, the court told the jury what Carlson had to prove

to establish her disparate treatment claim:

             To establish her "disparate treatment" claim, Ms. Carlson
       has the burden of proving each of the following propositions:

              (1) That she has a disability;

              (2) That she is able to perform the essential functions of her
       job; and

             (3)That her disability was a substantial factor in Boeing's
       decision to terminate her.

              If you find from your consideration of all of the evidence that
       each of these propositions has been proved, then your verdict
       should be for Ms. Carlson on this claim. On the other hand, if any
       of these propositions has not been proved, your verdict should be
       for Boeing on this claim.

       Carlson has not challenged this instruction. So we review the record to

see if the record includes substantial evidence supporting a conclusion that

Carlson did not prove one of the three propositions stated in jury instruction 11.

Substantial evidence supports a conclusion that Carlson did not prove that her

disability was a substantial factor in Boeing's decision to fire her.

                                          -15-
No. 76354-7-1 /16



      Carlson provided some evidence of disability since her expert testified that

she had PTSD.19 She provided some evidence linking her disability to her job

performance since her two earlier leaves of absence were, at least in part, the

result of stress from work.         Finally, she provided some, albeit contested,

evidence that her PTSD caused the conduct that led to her termination: Covell

testified that Carlson's PTSD had likely been triggered at the meeting by Heckt's

behavior. But Boeing presented substantial evidence sufficient to persuade a

reasonable person that Carlson's conduct was the result of her ongoing anger at

Heckt and not her PTSD. And this evidence supports a conclusion that Carlson

did not prove a required element of her disparate treatment claim. The trial court

correctly denied her request for judgment as a matter of law on this claim.

   B. Failure To Accommodate

      With jury instruction 12, the court told the jury what Carlson had to prove

to establish her "failure to reasonably accommodate" a disability claim,

              To establish her "failure to reasonably accommodate" a
      disability claim, Ms. Carlson has the burden of proving each of the
      following propositions:

             (1)      That she had an impairment that is medically
                      recognizable or diagnosable or exists as a record or
                      history; and

             (2)      That either


       19 She   received this diagnosis after she was terminated.
                                         -16-
No. 76354-7-1 / 17


                     (a)   Ms. Carlson gave Boeing            notice of the
                           impairment; or

                     (b)   no notice was required to be given because
                           Boeing knew about Ms. Carlson's impairment;
                           and

            (3)      That the impairment had a substantially limiting effect
                     on Ms. Carlson's ability to perform her job; and

             (4)     That she would have been able to perform the
                     essential functions of the job in question with
                     reasonable accommodation; and

            (5) That Boeing failed to reasonably accommodate the
                impairment.

              In determining whether an impairment has a substantially
      limiting effect, a limitation is not substantial if it has only a trivial
      effect.

             If you find from your consideration of all of the evidence that
      each of these propositions has been proved, then your verdict
      should be for Ms. Carlson on this claim. On the other hand, if any
      of these propositions has not been proved, your verdict should be
      for Boeing on this claim.

      Again, Carlson has not challenged this instruction. So we review the

record to see if the record includes substantial evidence supporting a conclusion

that Carlson did not prove one of the five propositions stated in jury instruction

12.

      The record includes substantial evidence supporting the conclusion that

Boeing did not have notice of her disability and the need for accommodation.

Heckt did not know about her anxiety, depression, or PTSD. Nor did ECARB.

Further, even EAP, whose counselors had knowledge of the stress incidents that
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No. 76354-7-1 /18



contributed to her need for leave time and who recommended PTSD be ruled

out, did not find a need for or recommend in-house accommodation. Instead,

they suggested counseling as the plan for addressing her depression and

anxiety.

       Carlson relies on an "imputed knowledge" theory to show that Boeing had

notice as a matter of law. She cites three cases to support her argument:

Goodman v. Boeing Co.,2° Kimbro v. Atlantic Richfield Co.,21 and Martini v.

Boeing Co.22 None supports her claim. In each case, a supervisor knew about

the employee's disability and its impact on the employee's ability to work. In

Goodman, Goodman provided evidence about her supervisors' awareness of the

exacerbation of her arthritis caused by her job and that she had requested a

transfer because of the disability.23     In Kimbro, the plaintiffs immediate

supervisor counseled him about the impact of his disability, cluster headaches

and migraines, on his work.24 In Martini, EAP knew that Martini's depression was

directly related to his work, and Boeing indicated it planned to transfer him as a

result of his requests.25

      20 75 Wn. App. 60, 877 P.2d 703 (1994), aff'd, 127 Wn.2d 401, 899 P.2d
1265(1995).
       21 889 F.2d 869 (9th Cir. 1989).
      22 88 Wn. App. 442, 945 P.2d 248 (1997), aff'd, 137 Wn.2d 357, 971 P.2d
45 (1999).
       23 Goodman, 75 Wn. App. at 64.
      24 Kimbro, 889 F.2d at 872-73.
       25 Martini, 88 Wn. App. at 447, 455, 458-59.
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No. 76354-7-1/ 19



       In contrast, Carlson did not show that Heckt or EAP knew she had PTSD

and that it affected her ability to work. Carlson never told Boeing that she made

her transfer request to accommodate her PTSD. Because substantial evidence

supports a conclusion that Boeing did not have direct or constructive notice of

her PTSD and that it affected her work, Carlson fails to establish that Boeing

failed to accommodate her disability as a matter of law.26 The trial court correctly

denied her request for judgment as a matter of law on this claim.

                              Motion for a New Trial

       Carlson claims that the court's incorrect decisions about evidentiary issues

and jury instructions sufficiently prejudiced her to require a new trial. We review

the denial of a motion for a new trial for abuse of discretion.27 For this court to

find the trial court abused its discretion by not granting a new trial, an appellant

must demonstrate that the court's decisions during trial prevented her from

having a fair tria1.28




       26 Since Carlson fails to establish that Boeing knew of her disability and its
relationship with her work and thus fails to show a duty to accommodate was
triggered, we need not address the issue of whether she could perform essential
functions of her job.
       27 Alum. Co. of Am. v. Aetna Cas. & Sur. Co., 140 Wn.2d 517, 537, 998
P.2d 856(2000).
       28 Alum. Co. of Am., 140 Wn.2d at 537.
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No. 76354-7-1 /20



   A. Jury Instructions

       Jury instructions must allow each party to present to the jury its theory of

the case.29 The sufficiency and accuracy of jury instructions present questions of

law that this court reviews de novo.3°        Misleading instruction are always

insufficient.31 If an instruction is wrong, the party challenging it must also show

prejudice that affected, or presumptively affected, the trial's outcome to receive

appellate relief.32

   i. Jury Instruction 2133

       Carlson challenges jury instruction 21, which told the jury that "an

employer who obtains information regarding the medical condition or history of

any employee shall. . . treat that information as a confidential medical record"

unless the employee authorizes the employer to release it to a particular

individual.

       We do not need to decide if this instruction correctly stated the law

because Carlson has not shown that this instruction prejudiced her.             As

discussed above, neither Heckt nor ECARB knew about Carlson's disability when

       29Hue v. Farmbov Spray Co., 127 Wn.2d 67, 92, 896 P.2d 682 (1995);
Havens v. C&D Plastics, Inc., 124 Wn.2d 158, 165, 876 P.2d 435 (1994).
      30 State v. Becklin, 163 Wn.2d 519, 525, 182 P.3d 944 (2008); Cox v.
Spangler, 141 Wn.2d 431, 442, 5 P.3d 1265(2000), 22 P.3d 791 (2001).
      31 Hue 127 Wn.2d at 92; Havens, 124 Wn.2d at 165.
      32 Thomas v. French, 99 Wn.2d 95, 104, 659 P.2d 1097 (1983).
      33 Carlson appears to be referring to jury instruction 21 when she
discusses jury instruction 22 in her brief.
                                         -20-
No. 76354-7-1 /21



Boeing fired her. Even if the court had not given this instruction and the jury

could presume Boeing could freely share this information, undisputed evidence

established that the ECARB was not aware of Dr. Bailey's diagnosis and so

could not have relied on it when making its decision.

   ii. Jury Instruction 2034

      Carlson claims that the court erred by instructing the jury that "[a]ri

employer is not required to provide a disabled employee with an accommodation

unless the accommodation is medically necessary."

      Carlson confuses accommodation with diagnosis. The WLAD does not

require a medical diagnosis for a worker to establish she suffers from a disability.

But Washington courts do require an accommodation be "medically necessary"

for an employer to have a duty to accommodate that employee's disability.35 The

instruction accurately states the legal requirement that an employee must

demonstrate "a nexus between a disability and the need for accommodation."36

Carlson does not provide any contrary authority.

       Carlson further claims that jury instruction 20 conflicts with jury instruction

17. It does not. Jury instruction 17 states that an "employer must provide


       34 Carlson appears to be referring to this instruction when she claims the
court erroneously allowed jury instruction 21.
       35 Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 192-93, 23 P.3d 440
(2001).
       36 Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 148, 94 P.3d 930(2004).
                                        -21-
No. 76354-7-I /22



reasonable accommodation for an employee" unless it will impose an "undue

hardship on the employer." It also identifies factors to consider to evaluate an

undue hardship claim, states that "[t]here may be more than one reasonable

accommodation of a disability," and provides examples of accommodations that

can allow the "person to perform the essential functions of the job." None of this

conflicts with the requirement for "medical necessity" identified in jury instruction

20. Rather, jury instruction 20 provides an additional clarification regarding

exactly what type of accommodation is required.

       Since jury instruction 20 is an accurate statement of Washington law,

Carlson's challenge to it fails.

   iii. Proposed Jury Instruction 14

       Carlson claims that the trial court should have instructed the jury that "[i]t

is not a defense to plaintiffs claims that Boeing would have fired an employee

without an impairment for the same conduct Boeing alleges it fired plaintiff for."

       Carlson fails to show that the absence of this instruction prejudiced her.

This instruction addresses one defense Boeing asserted to the disparate

treatment claim. As discussed above, Carlson did not demonstrate that ECARB

had actual knowledge of her disability. An instruction about Boeing's defense

would not assist Carlson when she failed to present evidence sufficient to prove

one element of her claim.

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   iv. Proposed Jury Instruction 13

       Carlson claims that the trial court should have instructed the jury that an

"employer includes any person acting in the interest of the employer, directly or

indirectly." She contends that her theory of the case required that the jury

understand that "an employer [cannot] create subdivisions within itself."

       Again, Carlson fails to establish prejudice. As indicated above, Carlson

does not establish that Boeing or EAP had information linking her conduct to

PTSD at the time Boeing fired her. This instruction would not remedy that failure.

   B. Admission of Evidence

       A party challenging the admission of evidence must show that the trial

court abused its discretion and that this decision prejudiced that party.37

     Evidence of ECARB's Lack of Knowledge of Carlson's Medical History

       According to Carlson, the court abused its discretion by admitting Boeing's

evidence and argument that ECARB did not know the content of EAP's files or

Bailey's report.

       Carlson failed to establish that this admission prejudiced her. As indicated

above, Carlson did not show that any of the information possessed by EAP and

by Boeing at the time of termination, including Bailey's report, established that

Carlson had PTSD or that it caused her conduct. Even if the evidence she

      37 Farah v. Hertz Transporting, Inc., 196 Wn. App. 171, 177, 383 P.3d 552
(2016); Burnside, 123 Wn.2d at 107.
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contests was not admitted and the jury assumed ECARB had access to Bailey's

and EAP's files, Carlson's evidence did not prove either disparate treatment or

failure to accommodate.

   i. Carlson's Failure To Appeal Her Termination

      Carlson also challenges the admission of evidence about her decision not

to appeal her firing through Boeing's internal process. She claims the "prejudice

outweighed any probative value" of the evidence. She has not shown how this

decision prejudiced her. As discussed above, Carlson did not establish a prima

facie case for discrimination because she did not establish that Boeing had

notice. Even if the trial court excluded this evidence, Carlson could not have

proved disability discrimination.

   ii. Testimony by Cain and LeBlanc.

       Carlson also challenges testimony from Boeing's medical officer, Dr.

Laura Cain, and Boeing's security officer, Robert LeBlanc. She claims both

provided "expert testimony" in the form of opinions about aspects of the case for

which they did not have personal knowledge.

       Carlson asserts that Cain, in discussing Bailey's report, did not testify

based on personal knowledge. However, Cain relied on her personal experience

working as a medical officer when she testified about Dr. Bailey's report and how

Boeing officials would have understood it. So her testimony was not improperly

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admitted expert testimony. Boeing's failure to identify Cain as an expert witness

should not have negatively impacted Carlson's trial preparation. Cain is Boeing's

medical officer, and Carlson should have fully anticipated Cain would testify

regarding the medical procedures and determinations made by EAP.

      Further, Carlson did not establish that she was prejudiced by Cain's

testimony. The testimony did not impair Carlson's ability to prove a prima facie

case. Rather, as discussed above, she failed to demonstrate that Boeing knew

about her disability and its connection to her behavior.

       Carlson also asserts that Boeing's security investigator, LeBlanc, offered

impermissible expert testimony. LeBlanc testified about Carlson's violation of

Boeing's procedures. As the primary investigator following up on reports that

Carlson made threatening statements and as a security officer with Boeing,

LeBlanc could testify about how his personal experience led him to conclude her

statements were threats.      Further, Carlson's claim that he was improperly

allowed to testify regarding Heckt's change of mind is without merit since she

opened the door during trial to testimony about Heckt's initial statement. Thus,

the court did not improperly admit LeBlanc's testimony. Further, Carlson has not

shown the admission of LeBlanc's testimony prejudiced her since her prima facie

case did not turn on the jury finding that she did or did not make a threat.



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   iii. Stale and Irrelevant Evidence

       Carlson asserts that the court improperly admitted stale and irrelevant

evidence in the form of past work performance reviews and journal entries.

Specifically, she challenges the admissibility of evidence Boeing offered to show

that she was not always a model employee and was at times disruptive. She

also challenges journal entries that support Boeing's theory that her conduct was

related to her anger at Heckt.

       Carlson's work performance was not the core issue here. But her theory

of the case included an assertion that she was a model employee. As a defense

to this assertion, Boeing could offer evidence that rebutted this claim. And her

anger at Heckt is relevant to whether or not she responded in the meeting

because the particular situation triggered a PTSD response or if she responded

because she generally felt animus toward him.

       Also, admission of this evidence did not prejudice her. As noted above,

she did not establish notice. The exclusion of this evidence would not remedy

this failure.

    C. Cumulative Evidence of Other's Conduct

        Carlson claims the court erred by excluding certain disciplinary reports for

other Boeing employees accused of making threats of violence in the workplace

because they were cumulative.

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       ER 403 provides a court with discretion to exclude evidence because it is

cumulative.    Here, Carlson attempted to introduce a number of reports only

peripherally related to her case. While the court excluded the substance of the

reports, Carlson was allowed to question Boeing about a subset of the reports

and elicit responses during trial. Thus, the jury was made aware of the existence

of other situations where the employee was not fired for a reported threat but not

burdened by cumulative evidence.

       Even if the trial court had admitted all of the reports, they would not have

cured Carlson's proof problem. To show disparate treatment, Carlson needed to

show that Boeing had notice of her disability and fired her because of it. As

indicated above, she failed to do this. So the exclusion of these reports did not

impact her case.

   D. Impeachment Through Religious Affiliation

       Carlson asserts that the court improperly allowed Boeing to impeach her

by referring to her religious affiliation. ER 610 forbids impeachment on the basis

of religious belief.

       During cross-examination, respondent's attorney asked, over objections,

whether Carlson was allowed to swear since she was Mormon.                Counsel

referenced to an entry in Carlson's journal that indicated she "was furious,

swearing furious" about the interaction with Heckt. Counsel for the respondent

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asked Carlson if it was "more serious to swear if you [were] a devout Mormon"

than not. Carlson said that Mormons were like other people and could "say what

[they] want in [their] personal journals."

       This line of questioning was improper. But, as indicated above, Carlson

did not establish a prima facie case for discrimination. Because these questions

did not affect her failure to establish the basic elements of her WLAD claims,

Carlson has not shown that this particular exchange prejudiced her.

                               New Judge on Remand

       Since Carlson fails to establish her claim that the trial court erred or

abused its discretion, we do not consider her request for a new judge on remand.

                                   CONCLUSION

       We affirm. Carlson's appeal of the denial of her motion for summary

judgment is not reviewable. She fails to establish as a matter of law that Boeing

discriminated on the basis of her disability and thus does not show the trial court

abused its discretion in denying her motion for judgment notwithstanding the

verdict. She also fails to establish that she was prejudiced by the trial court's

decisions about jury instructions and the admission of evidence. As a result, she




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does not establish that the trial court abused its discretion by denying her request

for a new trial.




WE CONCUR:



                                                  _247. ceitz.4 ,.0.1




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