Lodis worked? for? Corbis as a? V.P.? in? Human Resources. The person who hired Lodis was replaced by a new CEO, Gary Shenk, who promoted Lodis to his executive team. Lodis was 55 years old at the time of the promotion. Shenk allegedly? made ?several? age-related discriminatory remarks about older workers. Lodis, as V.P. of Human Resources, expressed concern? directly? to? Shenk? about? the discriminatory remarks, and also complained to the company?s General Counsel. Thereafter, Shenk promoted Lodis to senior Vice President with a pay raise and an incentive bonus.

Shortly after receiving the promotion, Lodis received a terrible performance review from executive team members and an independent consultant. He was placed on probation, and then allegedly lied to Shenk about meeting with his direct reports as the probation required. In March 2006,? Lodis? was? terminated? from ?employment for failing to meet the terms of his probation, lying to his superior, and retaliating against another employee regarding a sexual harassment claim. Lodis? brought? suit? alleging? age? discrimination and retaliation under the WLAD. Summary judgment was granted for the defendant on the retaliation claim. Later in the litigation, it was discovered that Lodis failed to record any of his vacation time but accepted a payout of $41,155 for 329 hours of accrued but unused vacation time. Based upon this evidence, Corbis counterclaimed for ?breach ?of ?fiduciary? duty, ?unjust ?enrichment, and fraudulent misrepresentation. Corbis also claimed after-acquired evidence.

The jury found in favor of the defendant on the age discrimination claim. It also found in the defendant?s favor on the breach of fiduciary duty counterclaim, but awarded no damages. The Court awarded a new trial to Corbis on the counterclaim based upon the incongruous result of finding liability but no damages.? At the second trial, a new jury again found a breach of fiduciary duty and awarded $42,389 in damages.

On appeal, the Court of Appeals affirmed the judgments concerning age discrimination and breach of fiduciary duty, but reversed the summary judgment ruling on the retaliation claim which was remanded for a third trial. See Lodis v. Corbis, 172 Wn. App. 835 (2013).

On remand, Lodis alleged retaliation based upon the age-related remarks made by Shenk, which the defendant generally denied. He also denied having been admonished by Lodis. Shenk did admit to having? referred? to? a? new? executive? team as? the ?young team,? but argued that the comment was unrelated to age and was meant to express the passion, energy, and new thinking of team members. Shenk again denied that Lodis raised the issue with him. Likewise, the company?s General Counsel also denied having received complaints from Lodis. Lodis produced no corroborating testimony in support of his complaints about age- related remarks.

Prior to trial, the court ruled that Lodis could only introduce evidence of age discrimination that he reported to management and which was the basis of his retaliation claim; that Lodis could not re- litigate the breach of fiduciary duty (which formed the ?basis ?of? an ?after-acquired ?evidence ?defense) and which had been previously decided against Lodis in the second trial; and that the defense verdict? ?on? ?the? ?age? ?discrimination? ?claim? ?was inadmissible. However, the trial court found that because Lodis repeatedly violated the ruling in reference to age discrimination he ?opened the door,? and the prior defense verdict on age discrimination?? was?? admitted?? into?? evidence subject to a limiting jury instruction. The court also allowed evidence of the defense verdict on the issue of a breach of fiduciary duty relevant to after-acquired evidence. The jury returned a defense verdict on the only remaining claim of retaliation. Lodis appealed again.

On appeal, Lodis argued that the court erred by not allowing him to introduce all evidence of age discrimination of which he was aware in order to support his ?reasonable belief? of age discrimination. ?The ?court ?ruled ?that ?under ?ER 403 evidence of age discrimination unrelated to his opposition conduct had minimal relevance, and that the prejudicial affect outweighed the probative? value.? Under? the? circumstances,? the trial court did not abuse its discretion.

The Court of Appeals affirmed that Lodis had ?opened the door? by repeatedly introducing evidence of age discrimination contrary to the court?s ruling in limine. It was therefore ?prudent and even-handed? to allow the introduction of the prior verdict on age discrimination. Relying upon the law of the case, the court affirmed exclusion of evidence that Lodis did not breach a fiduciary?? duty?? owned?? to?? Corbis,?? and?? also affirmed the introduction of the jury?s previous finding? ?on? ?that? ?issue?? as? ?it? ?related? ?to? ?the affirmative defense of after-acquired evidence.

Lodis v. Corbis, ???????Wn. App. ?????????, — P.3d — (12/28/2015) (Dwyer, Trickey, Cox).