Marin v. King County, — Wn. App. —,? — P.3d — ?(Div. I 6/6/16) (Leach, Verellen, Dwyer).

Plaintiff started working at the King County Wastewater Treatment Division at West Point in 2007.? Plaintiff had a turbulent relationship with his supervisors.? He complained to HR alleging a hostile work environment, but a County outside investigator found the complaint lacked merit.? He then transferred to a different crew at the South Plant in Renton.? Thereafter, his original supervisor was reprimanded for threatening retaliation.

Plaintiff?s new supervisor at the South Plant restricted plaintiff?s assignments for lack of training at the new plant and because plaintiff allegedly made errors placing the crew in jeopardy.? Plaintiff filed a complaint with HR alleging that the crew harassed, discriminated against him, and retaliated against him.? The County again hired an outside investigator who found no evidence of discrimination.

Plaintiff rejected an offer to send him back to West Point, but he rejected the offer and instead agreed to change crews at South Plant.? In early 2010, Marin asked the County to make his transfer to the new crew permanent to accommodate his posttraumatic stress disorder (PTSD). The County agreed in April 2010.? The new supervisor gave plaintiff a Teach/Lead/Coach memo (?TLC?), which is not discipline, though may be the basis for future discipline.? Marin took medical leave on January 5, 2011.? Marin sent notes from two doctors saying that work had aggravated his “acute situational stress” and PTSD.? The County requested? ?more? ?information. ??Marin? ?did ??not?provide it.? Instead, he gave notice he would retire in May 2011.

Marin sued the County in July 2011.? He alleging six causes of action: disparate treatment, hostile work environment, failure to accommodate disabilities under the Washington Law Against Discrimination (WLAD), wrongful discharge, and both intentional and negligent infliction of emotional distress.

The trial court found that secretly recorded meetings by plaintiff violated the Privacy Act, RCW 9.73, and sanctioned plaintiff?s counsel $5,000 for not having produced them prior to a deposition.? The court dismissed at summary judgment four of plaintiff?s claims: disparate treatment under WLAD, wrongful discharge, and both types of emotional distress.? At the close of evidence, the court granted the County’s request for a directed verdict in part. It dismissed the retaliation component of Marin’s hostile work environment claim but allowed the jury to decide the rest of his hostile work environment claim and his accommodation claim. The jury then rendered unanimous verdicts for the County on those claims. The court awarded the County $14,378.37 in costs. Marin appealed the Court?s ruling on sanctions, summary judgment, directed verdict, and various evidentiary issues.? The Court of Appeals affirmed, and the plaintiff?s motion to publish was granted.

The Court of Appeals upheld the sanctions against plaintiff?s counsel, finding that the conversation was private within the meaning of the Privacy Act, and not an abuse of discretion.? The Court affirmed summary judgment because on the issue of discrimination plaintiff failed to show an ?adverse employment action? and therefore failed to establish a prima facie case.? It also ruled in dicta that plaintiff failed to show an inference of discrimination because the alleged comparator had a different supervisor, and plaintiff failed to show he was treated differently.? In additional dicta, the Court ruled that plaintiff failed to prove pretext.? Summary judgment was affirmed on the retaliation claim because he again failed to show that he suffered an ?adverse employment action,? distinguishing Boyd v. State, 187 Wn. App at 14.? In dicta, the Court ruled that plaintiff also failed to show that his protected activity was a ?substantial factor? in the decision to take the alleged adverse action or that the County?s reasons were pretextual.

Plaintiff also argued that the court erred in excluding evidence that a coworker retaliated against him without laying a foundation that the coworker was aware of his protected conduct.? The Court of Appeals disagreed with the plaintiff that his ruling limited him to direct evidence to make this showing.

Plaintiff also challenged the failure to exclude a juror for cause.? But the Court ruled that this challenge was not properly preserved, by not raising it during voir dire.? Moreover, ?[A] party accepting a juror without exercising its available challenges cannot later challenge that juror’s inclusion.?

Plaintiff also challenged the Court decision to allow the County?s medical expert to testify that plaintiff suffered from an “adjustment disorder with paranoid personality traits.”? The Court ruled that the trial court had excluded testimony about plaintiff?s credibility and instructed the jury to that effect.? Rather, the expert?s testimony related to plaintiff?s medical condition.? Moreover, plaintiff opened the door to the accuracy of plaintiff?s perceptions when he cross-examined the County?s expert.

The trial court?s directed verdict on the claim of hostile work environment based upon retaliation was likewise confirmed.? The retaliation claim was affirmed because plaintiff introduced no evidence that anyone who harassed him was aware of his protected conduct.