Employer Liable for Ineffective Remedial Action; Fee Multiplier Doesn’t Depend on Proportionality

Plaintiff Perry won a sexual harassment verdict issued by Superior Court Judge Dean Lum (no jury) against her employer, Costco, because her male co-worker Smith made repeated sexual comments, exposed himself, threatened to sexually? assault? her? while? he? was? “feeling crazy,” and because the employer failed to prevent continued harassment of her and other female workers. ?A Costco manager interviewed other women Perry identified as victims of Smith’s ?harassment and recommended Smith be fired.?? ?A Costco vice president disagreed concluding? ?that? ?Costco?? could?? not?? confirm Perry’s claims.? ?Costco transferred Smith to another shift and required him to attend three hours of sensitivity training and sign a Contract for Continued Employment, which conditioned his employment on completion of the training. After making repeated unsuccessful requests for a transfer to another location because of discomfort with her intermittent contact with Smith, Perry completed paperwork to transfer herself.?? And Costco did not offer Perry any counseling.???? Smith ?then ?began ?shopping ?at Perry’s new location where he glared at her. When she complained, Costco management told her there was nothing Costco could do to keep Smith out of the store.?? Affirming the verdict that? Costco’s? remedial? action? was? ineffective, the Court of Appeals quoted favorable Ninth Circuit precedent:?? ?”Effectiveness will be measured by the twin purposes of ending the current harassment and deterring future harassment–by the same offender or others. If 1) no remedy is undertaken, or 2) the remedy attempted is ineffectual, liability will attach.” ?The Court ?held? that ?Costco’s ?failure ?to? take “affirmative steps to assist Perry in addressing her issues arising from the sexual harassment” such as offering her counseling and the requested transfer contributed? to ?its ?liability.?? ?Finally, ?the ?Court found? that? the? trial? court? abused? its? discretion when it declined Perry’s request for a lodestar multiplier of 25% for her attorney fees because “a multiplier would result in an attorney’s fees award that would be disproportionate to Plaintiff’s damage award.” ?The award was for $145,694.30 in? ?damages,? ?$148,945.00? ?in? ?tax? ?relief,? ?and $213,262.12 in attorney fees, costs, and expenses. The Court reversed and remanded for a determination on the multiplier. ?Perry v. Costco Wholesale, Inc., No. 52454-2-I (Oct. 18, 2004, Cox, Coleman, Ellington).