Plaintiff worked as VP of HR. ?In July 2007 the company? hired ?a ?new ?37-year ?old ?CEO ?who made ageist comments about older workers. ?The plaintiff was 55. ?The plaintiff told the CEO that his comments were making other employees uncomfortable.? ?A few months later the CEO promoted the plaintiff to senior vice-president. He received a pay raise and a bonus. The plaintiff alleged that at the very same time he received a promotion the CEO recruited colleagues to report negative comments about him, which appeared in his next performance review.? ?The CEO then put the plaintiff on probation.?? In March 2008 the CEO terminated the plaintiff for failing to improve his performance.

The plaintiff filed claims for age discrimination and retaliation in Superior Court. ?Judge Hayden dismissed the retaliation claim because it related to the plaintiff?s HR job duties. ?The trial judge also held that when a plaintiff seeks emotional distress damages it waives the psychotherapist- patient privilege. ?The plaintiff refused to provide the discovery and the judge barred him from introducing emotional distress evidence.

During discovery the company learned the plaintiff had received his $35,000 bonus twice and not deducted vacation time that he had used from his bank resulting in an overpayment of his vacation cash out. ?The company counterclaimed for breach of fiduciary duty. The case went to trial. ?The jury ruled in favor of the company on the employee?s age discrimination claims and the employer?s fraud and unjust enrichment claims. ?The jury awarded no damages. The judge granted the employer a new trial.?? A second jury found for the employee on the bonus counterclaim but for the employer on the vacation hours claim and awarded the employer $42,000. Both sides appealed.

The appellate court reversed the dismissal of the employee?s retaliation claim on the basis that his conduct was part of his job duties. ?The court held that federal? cases? imposing a requirement? under the FLSA that the employee must ?step outside his job duties? in order to engage in protected activity did not apply to the WLAD. ?Relying on the broad interpretation ?of ?Title? VII ?anti-retaliation provisions under U.S. Supreme Court precedent, the?? court? ?held? ?there? ?is? ?no? ??step? ?outside? requirement under the WLAD.? The panel reasoned that adoption of the rule ?would strip human resources, management and legal employees of WLAD? protections.??? These employees ?are often best situated to oppose an employer?s discriminatory practices.?

The court refused to apply the same actor inference to retaliation claims. ?[A]dopting this inference would allow an employer to grant a raise or promotion prior to implementing a termination as a means of decreasing their exposure to a valid retaliation claim.? The panel affirmed the trial court?s ruling on the psychotherapist-patient? ?waiver.????? ?The? ?plaintiff argued no waiver because he didn?t allege a specific psychiatric disorder and does not intend to rely on medical records or testimony.?? The panel held that the statutory medical privileges should be narrowly construed.? ?It held that a plaintiff who alleges emotional distress has put his mental health at issue.

The? court ?refused ?to ?follow ?federal ?cases ?that find waiver only when the plaintiff alleges a specific disorder or relies on psychologist testimony.?? The court instead held that ?when a plaintiff ?puts ?his? mental ?health ?in ?issue ?by alleging emotional distress, he waives his psychologist-patient privilege for relevant mental health records.? ?The court held that even if the plaintiff stipulates that he will not introduce any psychologist ?or? expert ?testimony, ?the? records may still be relevant to show causation and magnitude.??? The court did not suggest that its holding applied to any other type of medical records. On the employer counterclaims, the court held the judge erred by allowing the question of the existence of a fiduciary duty to go to jury. ?That is a question of law from the court. ?The breach of a legal duty is generally a question of fact, which does go to the jury.? ?The court affirmed the second jury verdict in all respects and the exclusion of an allegation of sexual harassment against the plaintiff.

Lodis v. Corbis Holdings, Inc., — Wn. App. —, 292 P.3d 779 (Div. 1 1/14/13) (Appelwick, Cox, Ellington).