Parker-Jones v. Eagle Hardware & Garden
DO NOT CITE. SEE RAP 10.4(h).
Court of Appeals Division I
State of Washington
Opinion Information Sheet
Docket Number: 41994-3-I
Title of Case: Marci Parker Jones, Respondent
v.
Eagle Hardware and Garden, Appellant
File Date: 03/29/1999
SOURCE OF APPEAL
----------------
Appeal from Superior Court of King County
Docket No: 96-2-15355-9
Judgment or order under review
Date filed: 01/07/1998
Judge signing: Hon. Robert Alsdorf
JUDGES
------
Authored by Susan R. Agid
Concurring: Ronald E. Cox
Marlin J Appelwick
COUNSEL OF RECORD
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Counsel for Appellant(s)
Michael J. Killeen
Davis Wright Tremaine
2600 Century Square
1501 4th Ave.
Seattle, WA 98101-1688
Linda G. Atkins
Davis Wright Tremaine
10500 NE 8th St Ste 1800
Bellevue, WA 98004-4300
Counsel for Respondent(s)
Charles K. Wiggins
Attorney At Law
241 Madison Ave N
Bainbridge Is, WA 98110
Jay R. Stephens
Stephens Law Firm PS
400 W Gowe St Ste 308
Kent, WA 98032-6019
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION I
MARCI PARKER-JONES, ) NO. 41994-3-I
)
Respondent, )
)
v. ) UNPUBLISHED OPINION
)
EAGLE HARDWARE & GARDEN, INC., )
)
Appellant. ) FILED
BECKER, J. -- Eagle Hardware asks us to reverse a jury verdict for sexual
harassment, primarily arguing the instructions misled the jury. Given the
evidence presented, the jury was properly allowed to find that management
knew of the harassing conduct of one of its employees, and also to find
that the employee in question was himself a manager. Finding no error in
the other challenged rulings, we affirm the verdict and the award of
attorney fees.
Marci Parker-Jones, formerly Marci Parker, sued her former employer, Eagle
Hardware & Garden, Inc., for sexual harassment, retaliation, constructive
discharge, intentional infliction of emotional distress and negligent
supervision and retention. At trial, she presented the testimony of an
economist who evaluated her past and future losses, a clinical psychologist
who testified about Parker's distress and co-workers who witnessed the
conduct of Eagle management. The jury returned a special verdict form and
found in favor of Parker on all her theories of liability. Eagle appeals
from the judgment on the verdict.
The trial testimony told the following story. In 1994, Eagle hired
Parker to work in the paint and d(c)cor department at the Tukwila store. In
May of 1995, Parker transferred to Eagle's Issaquah store. A few weeks
later, she was promoted to the position of "downstocker." As a
downstocker, Parker reported to work several hours before the store opened
and stocked the retail shelves. Matt Kidd, as department head of the night
crew, oversaw this work.
Kidd began to ask personal questions of Parker, whether she had a
boyfriend, whether she had children and where she lived. He also
repeatedly and unsuccessfully asked her to go out with him. Parker
testified that in late August, Kidd began to make sexually oriented remarks
both directly to her and also about her to other employees. On one
occasion, Parker reported a puddle from a roof leak to Kidd. Kidd
responded by telling her that the puddle was on the floor because she
"probably came in {her} jeans or pissed in {her} pants because {she} was
excited to see him." Another time, Parker overheard Kidd telling another
male worker that if the worker helped Parker stock the shelves, he might
get "lucky" and "get some." Parker also heard Kidd tell other employees
how "he'd love to put {Parker} against the wall, spread {her} legs and do
the muff dive." The assistant manager was aware of these statements. The
store manager, Phil Newcomb, testified that the assistant store manager
told him of other sexually oriented comments made by Kidd. A co-worker
from the night crew also testified that Kidd made sexually oriented
comments about Parker when she was not around.
Parker testified about another incident involving a different male co-
worker, who said to her, "Let's get naked and fuck like bunnies and make
little bunnies." Newcomb learned of this incident, directed the employee
to apologize to Parker, and forwarded the complaint to the corporate Human
Resources Department. Newcomb also informed the assistant store managers
of Parker's complaints about Kidd and the co-worker.
On September 30, 1995, four months after Parker began working at the
Issaquah store, Eagle hired Kirk Eischen to replace Kidd as the department
head of night crew. During the month of October, Eischen repeatedly
overheard Parker yelling at Kidd to leave her alone. Once or twice a week,
Parker would break down crying and Eischen would permit her to go home.
In early October, Parker told one of the assistant store managers that Kidd
was still making bothersome comments on a daily basis. On one occasion,
Kidd approached Parker and angrily asked her if she had filed a sexual
harassment claim against him. When Parker denied the allegations and
attempted to leave the area, Kidd tried to trip her. She left the area
crying, found Eischen, and told him that she wanted to go home. The day
shift manager who arrived shortly thereafter knew that Kidd had upset
Parker. He asked Parker what was wrong. Parker responded, "I want to
quit." The manager said, "Is it Matt Kidd?" Parker answered, "Yes." By
the end of October, the Human Resources Department transferred Kidd to
Eagle's store in Federal Way.
Parker testified that her co-workers began to avoid her after Kidd was
transferred. One co-worker testified that he was warned not to have
discussions with Parker. Two other co-workers testified that management
had told them to limit their conversations with Parker. A fourth co-worker
testified that on one occasion, when he assisted Parker with about 100
cases of paint, removing them from a high shelf to the floor, one of the
assistant managers directly told him not to help Parker. The co-worker
testified that in the past, he had frequently assisted her without any
complaints from management.
On two occasions in November, Parker saw Kidd's truck in the parking lot of
the store when she reported for work at 3 a.m. The truck slowly moved
closer to Parker as she walked towards the store. Even when Parker was
safely inside the store, she would look out to see if Kidd's truck was
still in the lot. Eischen also saw Kidd's truck four or five times in the
store's parking lot.
In early December, Parker received a telephone call at the store. The
caller said, "Hi ya, bitch. I'm at the Federal Way store. I bet you don't
know who this is. I thought you were retired." Parker recognized Kidd's
voice and hung up. She immediately reported this incident to the assistant
manager.
On December 7, Parker found a business card on her car windshield that
read, "In the event you choose to sexually harass me, I promise no legal
action." Parker testified that she thought she reported this incident to
management, but could not recall to whom.
A few days later, Parker called in sick two and a half hours before her
scheduled shift. She explained to management that her daughter was sick
and that she could not find child care. When she reported to work the next
day, Parker's department head wrote her up for excessive absenteeism.
Parker signed the form and returned to work. The same day, she asked for
her employee copy of the write-up. Parker discovered that after she had
signed the form, the assistant store manager had written in, "Needs to call
24 hours in advance per shift." Eagle's policy normally requires employees
to call in only one hour in advance. Parker quit a few days later.
JURY INSTRUCTIONS
Eagle contends the trial court erred in instructing the jury on sexual
harassment. This court reviews jury instructions under the abuse of
discretion standard.1 There is no abuse of discretion if the instructions,
read as a whole, permit counsel the opportunity to argue their theory of
the case, are not misleading and properly inform the trier of fact of the
applicable law.2 Reversal is required if the court instructs the jury on a
theory concerning which there is no substantial evidence.3
Under Instruction 7, to which Eagle has assigned error, Parker had to prove
the following elements to establish sexual harassment:
1. That there was language or conduct of a sexual nature or that occurred
because of the plaintiff's sex;
2. That this language or conduct was unwelcome in the sense that the
plaintiff regarded the conduct as undesirable and offensive, and did not
solicit or incite it;
3. That the conduct or language complained of was so offensive or
pervasive that it could reasonably be expected to alter the conditions of
plaintiff's employment; and
4. Either:
(a) That Matt Kidd was an owner, manager, partner or corporate officer of
defendant Eagle Hardware & Garden, Inc. who participated in the conduct or
language referred to above; or
(b) That management knew, through complaints or other circumstances, of
the harassing conduct or language and the employer failed to take
reasonably prompt, corrective action designed to end the harassment; or
(c) That management should have known of the harassment, due to the
pervasiveness of the conduct or language, or through other circumstances,
and the employer failed to take reasonably prompt, corrective action
designed to end the harassment.{4}
Eagle contends there was insufficient evidence for the theory embodied in
4(a) of the above instruction. Kidd was not an owner, partner, or
corporate officer of the company, so the question is whether he was a
"manager". Eagle argues that Kidd was not a "manager" because he had no
authority to hire or fire employees.
That Kidd, along with the store manager, could not directly fire or hire
employees was one factor to be considered by the jury. But under the
unchallenged definition of "manager" as submitted to the jury in
Instruction 8, it was not a dispositive factor:
A "manager" is one who has authority to hire employees, terminate
employees, discipline employees, promote employees or otherwise exercise
independent judgment and discretion over a certain area of the business,
including the authority to take adequate steps to deal effectively with the
actions or conduct which allegedly created the hostile work environment:
An employer's use of the label "manager" or "management" may, but need not
be, considered by you, along with all other evidence pertaining to the
question of whether any particular person had the authority to deal
effectively with the actions or conduct which allegedly created the hostile
work environment.
The record substantially supports the trial court's determination that
there was a factual issue whether Kidd fit the Instruction 8 definition of
"manager". For about five to six hours a night, Kidd was the highest
ranked employee at the store. During these hours, Kidd had the authority
to deal with employee misconduct. He could prepare schedules for
employees, authorize overtime and request an employee from a different part
of the store to assist his crew. He was paid a salary, not hourly like
other lower ranked employees, including his assistant department head.
Kidd wrote "performance" reviews of employees, while higher-ups wrote
"management" reviews of Kidd. Kidd signed the reviews in the block labeled
"manager" and attended a weekly meeting with the store manager, assistant
managers and the department heads. The evidence amply supports Parker's
theory of imputing liability based on Kidd's direct participation in the
harassment as a manager.
Eagle also argues that element three of Instruction 7 fails to instruct the
jury that the harassment must be more than casual, isolated or trivial. In
Glasgow v. Georgia-Pacific Corp., the Washington Supreme Court held that an
employee must prove that the conduct is "sufficiently pervasive so as to
alter the conditions of employment and create an abusive working
environment."5 Element three of the instruction properly states Glasgow
and adequately apprised the jury that the harassment must be more than
trivial.
Eagle assigns error to the trial court's refusal to give its proposed
Instruction 14, describing conduct that is not sexual harassment. "When a
party's theory of the case is covered adequately by other instructions,
additional instructions are viewed as superfluous."6 In this case,
Instruction 7 adequately covered Eagle's theories. The court was not
required to "instruct negatively on a proposition already stated
positively."7 And it would have been error to give Eagle's proposed
Instruction 14 in place of Instruction 7 because Eagle's Instruction 14
does not include the theory of imputing liability based on the manager's
direct participation in the harassment.
JURY VERDICT
At the close of Parker's case, the trial court denied Eagle's motions for a
judgment notwithstanding the verdict, or in the alternative, a new trial.
Eagle appeals from these rulings. This court applies the same standard of
review as the trial court.8 "A directed verdict or judgment n.o.v. is
appropriate if, when viewing the material evidence most favorable to the
nonmoving party, the court can say, as a matter of law, that there is no
substantial evidence or reasonable inferences to sustain a verdict for the
nonmoving party."9
Eagle contends that there is no substantial evidence of sexual harassment
because the conduct consisted entirely of verbal statements, the statements
were infrequent, and Parker failed to report the conduct to management.
But Eagle cites to no authority holding that a claim of sexual harassment
cannot be sustained with evidence of verbal statements only. And Eagle's
assertion that the offensive statements were unreported and infrequent is
contradicted by the evidence in the record.
The jury was permitted to impute liability to Eagle by finding that Kidd
was a manager who directly participated in the harassment of Parker. The
content of the statements can reasonably be deemed offensive. The
pervasiveness of the harassment was established by testimony that Kidd made
harassing comments to Parker on nearly a daily basis for three months and
continued to harass her even after he was transferred.
The jury could have also imputed liability to Eagle by finding that
management knew or should have known of the harassing conduct and "failed
to take reasonably prompt, corrective action designed to end the
harassment." Parker reported the abusive comments to the store manager,
the assistant managers and the new department head. At trial, these
managers confirmed that Parker did in fact report Kidd's comments.
Management was also aware of the offensive comment made by Parker's co-
employee. The jury could have properly found that management's actions
were neither prompt nor effective. In fact, it was not until Parker
decided to quit that management finally attempted to stop the harassment by
transferring Kidd to another store.
Giving Parker the benefit of the inferences that reasonably may have been
drawn by the jury, the trial court's denial of Eagle's motion for a
directed verdict or judgment n.o.v. was appropriate.
Because there is sufficient evidence to support the jury's verdict on
sexual harassment, we need not consider the sufficiency of the evidence on
Parker's other theories of liability or the other assigned errors
concerning these alternate theories.10
EXPERT TESTIMONY
The trial court found relevant Dr. Pollock's testimony as to Parker's state
of mind during and after the time she worked at Eagle. After Dr. Pollock
testified that Parker suffered from an adjustment disorder and depression,
Parker's counsel asked Dr. Pollock if she were able to formulate an opinion
as to the cause of Parker's condition. Eagle objected and argued that
there was a lack of foundation for an opinion about causation. The trial
court overruled Eagle's objection and held that the jury could weigh Dr.
Pollock's testimony. On appeal, Eagle renews the objection.
It is a "universally accepted principle" that an expert may base an opinion
on firsthand information.11 The trial court has broad discretion in its
evidentiary rulings.12 Dr. Pollock testified that she began treating Parker
in November of 1995 when Parker was still employed with Eagle. The doctor
administered several tests to determine Parker's symptoms and then began to
treat her. Dr. Pollock testified that the crisis intervention treatment
involved discussions on the events at the Eagle store. Because her
inquiries to Parker did not lead to discovery of any other factors that may
have caused the stress, Dr. Pollock concluded that it was more probable
than not that Parker's experience at Eagle was the cause of her distress.
The trial court did not abuse its discretion by concluding this was proper
foundation for Dr. Pollock's testimony on the cause of Parker's stress.
Eagle also argues that Dr. Pollock's testimony invaded the province of the
jury. Eagle did not make this argument at trial and we therefore do not
consider it.13
DAMAGES
A jury awarded Parker past economic damages of $29,982, future economic
damages of $9,308, past non-economic damages (pain and suffering) of
$200,000, and future non-economic damages of $100,000, a total award of
$339,290. Eagle claims the award is excessive and is the result of the
jury's passion or prejudice.
An appellate court will not disturb the jury's award of damages unless the
court determines that the award is outside the range of substantial
evidence in the record, shocks the conscience of the court, or appears to
have been arrived as the result of passion or prejudice.14 Eagle points to
no circumstance showing that the award of damages was a result of passion
or prejudice. The amount of the award does not shock the conscience of the
court in light of the evidence in the record.
An economist testified that the value of Parker's past lost wages and
fringe benefits is $29,487. Dr. Kathleen Pollock, a clinical psychologist
with whom Parker consulted while Parker was working at Eagle, also
testified that Parker had five counseling sessions with her at a total cost
of $475. Together, the testimony of the economist and Dr. Pollock support
the award of $29,982 for past economic damages. The evidence also supports
the award for future economic damages of $9,308. Dr. Pollock testified
that Parker needed an additional 50 sessions over the next year at a cost
of $4,750. The economist testified that future losses were $4,368.
A jury's award for non-economic damages is within the province of the jury.15
A trial court's reluctance to overturn the jury's determination of the
amount of damages for pain and suffering is entitled to special deference
because the court and the jury have had the opportunity to evaluate first
hand the "candor, sincerity, demeanor, {and} intelligence" of the
witnesses.16
At trial, two years after Parker's experience at Eagle, the jury witnessed
her sobbing while she described the work environment at Eagle. Parker
presented evidence that because of Kidd's conduct, she frequently vomited,
cried and left work early. The jury also heard testimony from Dr. Pollock,
a clinical psychologist with whom Parker sought counseling. Dr. Pollock
testified that Parker reported symptoms of irritability and depression.
She slept and ate excessively. She had frequent headaches, tenseness and
stomach cramps. Dr.
Pollock testified that Parker suffered from adjustment disorder, anxiety
and a depressed mood. The jury also heard how Parker's co-workers and
Eagle management began to treat her differently after she reported the
sexual harassment. We conclude the award of damages was within the range
of the evidence, and the trial court was within its discretion in refusing
to overturn it.
DELAYED JURY DEMAND
Parker filed a jury demand one month after the filing deadline. Eagle
contends that the trial court abused its discretion by refusing to strike
Parker's jury demand, or in the alternative, by denying Eagle's motion for
a continuance.
The decision to grant or deny an untimely jury demand is within the sound
discretion of the trial court, and in the absence of abuse, the exercise of
that discretion will not be disturbed.17 Eagle has not shown why enlarging
the filing time for a jury demand by one month was an abuse of discretion.
The jury trial did not begin until two months later. Eagle's motion for a
continuance was denied because counsel did not provide the client's written
assent to a continuance as required by King County Local Rules 40(e)(2).
This was a tenable ground for denying the motion for a continuance.
ATTORNEY FEES
Eagle argues that the trial court erred by multiplying Parker's attorney
fees award by 1.5. An appellate court will not reverse a fee award unless
the trial court manifestly abused its discretion.18
The lodestar approach sets attorney fees by first determining the
reasonable amount of hours spent and multiplying the hours by a reasonable
hourly compensation. The court may adjust the lodestar amount based on the
contingent nature of success and the quality of work performed.19 The trial
court based the multiplier primarily on the high degree of risk for
Parker's counsel, noting that sexual harassment cases are difficult to
litigate. The court also emphasized the quality of the representation.
The outcome, the court observed, was unusually successful because not only
did it bring about a sizable recovery for Parker, it also appeared to have
caused some change in Eagle's mode of operation. These are tenable reasons
for an upward adjustment of the lodestar amount. The trial court did not
abuse its discretion.
As the prevailing party on appeal, Parker is awarded fees subject to
compliance with RAP 18.1.20
Affirmed.
WE CONCUR:
1 Herring v. Department of Social and Health Services, 81 Wn. App. 1, 22,
914 P.2d 67 (1996).
2 Falk v. Keene Corp., 113 Wn.2d 645, 782 P.2d 974 (1989).
3 Albin v. National Bank of Commerce of Seattle, 60 Wn.2d 745, 754, 375
P.2d 487 (1962).
4 Instruction 7; see also WPI 330.23; Glasgow v. Georgia-Pacific Corp., 103
Wn.2d 401, 406-07, 693 P.2d 708 (1985).
5 Glasgow v. Georgia-Pacific Corp., 103 Wn.2d at 406.
6 Herring v. Department of Social and Health Services, 81 Wn. App. at 27.
7 Carle v. McChord Credit Union, 65 Wn. App. 93, 106-07, 827 P.2d 1070
(1992).
8 Hizey v. Carpenter, 119 Wn.2d 251, 271, 830 P.2d 646 (1992).
9 Hizey v. Carpenter, 119 Wn.2d at 271-72.
10 See Glasgow v. Georgia Pacific Corp., 103 Wn.2d at 408.
11 ER 703 cmt.; see Reese v. Stroh, 128 Wn.2d 300, 309, 907 P.2d 282 (1995).
12 Orion Corporation v. State, 103 Wn.2d 441, 462, 693 P.2d 1369 (1985).
13 See ER 103(a)(1).
14 RCW 4.76.030; Washburn v. Beatt Equipment Co., 120 Wn.2d 246, 268-69, 840
P.2d 860 (1992).
15 Washburn v. Beat Equipment Co., 120 Wn.2d at 269.
16 Bingaman v. Grays Harbor Community Hospital, 103 Wn.2d 831, 835, 699 P.2d
1230 (1985).
17 Balise v. Underwood, 71 Wn.2d 331, 340, 428 P.2d 573 (1967).
18 Scott Fetzer Co. v. Weeks, 122 Wn.2d 141, 147, 859 P.2d 1210 (1993).
19 Bowers v. Tranamerica Title Insurance Co., 100 Wn.2d 581, 598, 675 P.2d
193 (1983).
20 See RCW 49.60.030(2).