Blaney v. International Ass'n of Machinists

• Decision Date: 21 October 2002
• Docket Number: No. 48444-3-I.,48444-3-I.
• Citation: 55 P.3d 1208,114 Wash. App. 80
• Court: Washington Court of Appeals
• Parties: Linda BLANEY, Respondent/Cross-Appellant, v. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, DISTRICT NO. 160, Appellant/Cross-Respondent.

55 P.3d 1208

114 Wash. App. 80

Linda BLANEY, Respondent/Cross-Appellant, v. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, DISTRICT NO. 160, Appellant/Cross-Respondent.

No. 48444-3-I.

Court of Appeals of Washington, Division 1.

October 21, 2002.

John Mele, Michael Rayton, Ryan Swanson & Cleveland, Seattle, WA, for Appellant.

Stephen Connor, Short & Cressman, Seattle, WA, Philip Talmadge, Talmadge & Stockmeyer, Tukwila, WA, for Respondent.

COX, A.C.J.

This gender discrimination case presents two issues: the propriety of a jury instruction on front pay and whether adverse tax consequences from the payment of an award under RCW 49.60.030(2) are compensable under the Washington Law Against Discrimination (WLAD).

The trial court erred by instructing the jury to award Linda Blaney front pay damages against The International Association of Machinists and Aerospace Workers, District No. 160 (the District) from the date of trial until her expected retirement. But that error was harmless. We also hold that adverse federal tax consequences from the payment of an award for violation of the WLAD are "actual damages" under RCW 49.60.030(2). We affirm in part, reverse in part, and remand.

Blaney has worked for Kenworth Trucking Company since 1978. She is a member of the District. The District is the official bargaining representative for 14 local unions, and represents several thousand unionized machinists in Washington and Alaska. Blaney served as a union shop steward and chief shop steward in the late 1980s. She became the vice president of her local union in the early 1990s, and later served two terms as president.

In 1997, Blaney applied unsuccessfully to the District for a position as a business representative. She applied again in 1998, 1999, and 2000, but the District still did not select her. In August 1999, the District removed her from her position as senior chief shop steward.

Shortly thereafter, Blaney commenced this gender discrimination action against the District. The case went to trial, and the jury returned a verdict in Blaney's favor. The jury found that the District had discriminated against her by not selecting her as a business representative in 1998, 1999, and 2000, and by removing her as senior chief shop steward. It awarded her damages, including back pay, front pay, and for emotional distress. The court entered a judgment on the verdict in the amount of $638,764. The court also entered a supplemental judgment in the amount of $235,625.38 for prejudgment interest, attorney and expert fees, and costs.

Blaney then moved unsuccessfully for a supplemental judgment to compensate her for the federal income tax obligations she will incur upon the District's payment of the judgments. We explain the specifics of the tax obligation later in this opinion.

The District appeals. Blaney cross-appeals the trial court's denial of a post verdict supplemental judgment to offset the adverse federal tax consequences of the award.

Jury Instruction—Front Pay

The District argues that the trial court erred by instructing the jury to award Blaney front pay damages from the date of trial until the date she "may reasonably be expected to retire."¹ Specifically, the District maintains that the court's instruction prevented it from arguing that the jury should limit the duration of any front pay award because Blaney's tenure as a business representative might not have lasted until she retired. Because the likely duration of future employment wrongfully terminated by discrimination is a question of fact for the jury, we agree that the instruction was incorrect.

This court reviews de novo claimed errors of law in jury instructions.² Jury instructions are sufficient if they allow each party to argue its theory of the case, do not mislead the jury, and, when read as a whole, properly inform the trier of fact of the applicable law.³

The court's Instruction No. 10 stated:

In calculating damages for future wage loss you should determine the present cash value of salary, pension, and other fringe benefits from today until the time Ms. Blaney may reasonably be expected to retire, decreased by any projected future earnings from another employer.[⁴]

As a preliminary matter, Blaney argues that the District failed to properly preserve its right to challenge this instruction on appeal. She maintains that the District failed to object to the instruction with sufficient particularity to satisfy the requirements of CR 51(f). The record shows otherwise.

Under CR 51(f), the party objecting to a jury instruction "shall state distinctly the matter to which [the party] objects and the grounds of [the] objection, specifying the number, paragraph or particular part of the instruction to be given or refused and to which objection is made." The purpose of this rule "is to assure that the trial court is sufficiently apprised of any alleged error in the instructions so that the court is afforded an opportunity to correct any mistakes before they are made and thus avoid the inefficiencies of a new trial."⁵ This court's "inquiry on review is whether the exception was sufficient to apprise the trial judge of the nature and substance of the objection."⁶

Here, the District's exception to Instruction No. 10 was sufficient to apprise the trial court of the nature and substance of its objection. The District specifically excepted to the phrase "may reasonably be expected to retire" by arguing that it was "unsupported by the case law." Moreover, the District proposed an instruction that highlighted the error by indicating front pay would be awardable from the date of its verdict "for a reasonably certain period of time that does not exceed the likely duration of employment."⁷ That proposed instruction bears a notation that it is a modification of WPI 330.82, the very pattern instruction on which the instruction now under review is based. The cumulative effect of these actions was to alert the court to the point now argued on appeal.

Blaney also argues that the District failed to preserve its claim of error because it did not propose an appropriate alternate instruction. But as we explained above, the District proposed such an instruction, and the court rejected it.

Moving to the merits of the argument, the District relies on Lords v. Northern Automotive.⁸ It argues that the court erred by instructing the jury to award Blaney front pay until the time of her expected retirement because the number of years to be included in a front pay award is a question for the jury, not the court. We agree.

In Lords, an at-will employee commenced an action alleging various claims against his employer, including disability discrimination.⁹ The trial court instructed the jury that, if it found discrimination, it could only award front pay for the five year period following the employee's termination.¹⁰

This court held that the trial court had "erred in limiting front pay to 5 years after termination."¹¹ It noted that:

there are three possible rules regarding front pay determinations: (1) allow the court to establish the parameters of front pay, then allow the jury to determine the amount as was done in this case; (2) allow the jury to determine the entire issue as occurs in nondiscrimination cases under Washington law; or (3) allow the court, in its discretion, to determine the entire issue of front pay as some federal circuit courts do.[¹²]

This court rejected the first option, reasoning that "[t]he likely duration of the terminated employment is an issue of fact, not law."¹³ This court also rejected the third option as contrary to our prevailing caselaw.¹⁴ We ultimately adopted the second approach, and concluded that, "[o]nce an employee produces evidence from which a reasonable future employment period may be projected, the amount of front pay, including the likely duration of employment, should go to the jury."¹⁵ That approach is "most consistent with analogous case law and is most likely to achieve an equitable result."¹⁶ This court specifically held that "[f]ront pay should be awarded `for a reasonably certain period of time that does not exceed the likely duration of the terminated employment.'"¹⁷ Because the trial court in that case had erred by establishing the parameters of the front pay award, this court reversed and remanded for a new trial on damages.¹⁸

In Ford v. Trendwest,¹⁹ our state supreme court recently declined to extend Lords to a case involving a lawsuit for breach of an employment at-will contract. The court instead held that lost earnings are not an appropriate measure of damages when an employer breaches a contract to hire an at-will employee.²⁰ But the court did not disapprove of Lords to the extent that it applies to a discharged employee's right in a discrimination case to recover front pay "for a reasonably certain period of time that does not exceed the likely duration of the terminated employment." Had the supreme court wished to modify the rule of Lords, it could have either done so or called into question the rule of that case. It did neither.

As in Lords, the trial court here established the term of front pay. Specifically, the trial court instructed the jury that, if it found discrimination, it should award front pay from trial "until the time [Blaney] may reasonably be expected to retire." This is not the same as properly instructing the jury to award front pay "for a reasonably certain period of time that does not exceed the likely duration of the terminated employment." The former sets a minimum term for a front pay award. The latter properly leaves the term to the jury to decide. The court's Instruction No. 10 is incorrect.

Both Blaney and the trial court appear to have relied on WPI 330.82, which Instruction No. 10 parallels. The problem is the choice of options within that pattern instruction, not the instruction itself. That pattern instruction provides alternative language in brackets based...