Blaney v. International Ass'n of Machinists

• Citation: 151 Wash.2d 203,87 P.3d 757
• Decision Date: 01 April 2004
• Docket Number: No. 73306-6.,73306-6.
• Parties: Linda BLANEY, Respondent, v. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, DISTRICT NO. 160, Petitioner.
• Court: United States State Supreme Court of Washington

87 P.3d 757

151 Wash.2d 203

Linda BLANEY, Respondent, v. INTERNATIONAL ASSOCIATION OF MACHINISTS AND AEROSPACE WORKERS, DISTRICT NO. 160, Petitioner.

No. 73306-6.

Supreme Court of Washington, En Banc.

Argued September 18, 2003.

Decided April 1, 2004.

John Peter Mele, Seattle, for Petitioner.

Philip Albert Talmadge, Talmadge & Stockmeyer, Tukwila, Stephen Patrick Connor, Stephen P. Connor PLLC, Seattle, for Respondent. Christopher S. Marks, Williams Kastner & Gibbs PLLC, Seattle, Stewart Andrew Estes, Keating Bucklin & McCormack, Seattle, for Amicus Curiae (Washington Defense Trial Lawyers).

Jeffrey Lowell Needle, Michael Craig Subit, Frank Freed Subit & Thomas LLP, Seattle, for Amicus Curiae (Washington Employment Lawyers Association).

Debra Leigh Williams Stephens, Bryan Patrick Harnetiaux, Spokane, for Amicus Curiae Washington State Trial Lawyers Assoc. Foundation.

FAIRHURST, J.

Three questions are presented in this gender discrimination case brought pursuant to Washington's Law Against Discrimination (WLAD), chapter 49.60 RCW. Did the Court of Appeals properly find that the trial court's jury instruction on front pay constituted harmless error? Did the Court of Appeals properly find that WLAD entitles Linda Blaney to an offset for the additional federal income tax consequences from her damage awards? And is Ms. Blaney entitled to attorney fees on appeal?

We affirm the Court of Appeals' holding that the front pay jury instruction, although erroneous, constituted harmless error. Blaney v. Int'l Ass'n of Machinists & Aerospace Workers, Dist. No. 160, 114 Wash.App. 80, 92, 55 P.3d 1208 (2002). We affirm the Court of Appeals' determination that WLAD entitles Ms. Blaney to an offset for the additional federal income tax consequences, id. at 100, 55 P.3d 1208, but we reject the Court of Appeals' characterization of the offset as actual damages, and instead characterize it as "any other appropriate remedy authorized by... the United States Civil Rights Act of 1964 as amended." RCW 49.60.030(2). Finally, we award Ms. Blaney attorney fees on appeal. RCW 49.60.030(2); RAP 18.1(a).

I. FACTS

Ms. Blaney has been an employee of Kenworth Trucking Company since 1978. Throughout her tenure, Ms. Blaney has been very active with her union.¹ She is also a member of the International Association of Machinists and Aerospace Workers, District No. 160 (hereinafter District), the official bargaining representative for 14 affiliated local unions that represent approximately 8,000 unionized machinists at 300 businesses in Washington and Alaska.

Ms. Blaney filed this lawsuit alleging violations of WLAD because the District selected less qualified male business representative candidates in 1997, 1998, 1999, and 2000, and because in 1999 the District removed her as senior shop steward.

At trial, Ms. Blaney testified that she intended to work until age 65. 3 Verbatim Report of Videotape Recorded Proceedings (VRP) at 398. Ms. Blaney's expert, Lowell Bassett, Ph.D., testified that the average retirement age is 62.8. 6 VRP at 965. The District provided no direct testimony. In its cross-examination of Dr. Bassett, the District suggested that Ms. Blaney could be discharged prior to retirement. At the close of trial, the judge instructed the jury, "[i]n 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." Clerk's Papers (CP) at 240. The District objected to the jury instruction, alleging that the language "may reasonably be expected to retire" was not supported by case law. The court denied the District's objection.

The jury found that the District discriminated against Ms. Blaney when it selected less qualified male business representatives in 1998, 1999, and 2000, and removed her as senior shop steward. Ms. Blaney was awarded back pay, front pay, and compensation for emotional distress. The judgment totaled $638,764 ($112,903 for past lost wages and benefits, $450,861 for future lost wages and benefits (based on the average retirement age of 62.8), and $75,000 for pain, suffering, and emotional distress). Ms. Blaney sought and received a supplemental judgment of $237,625.38, for prejudgment interest, attorney fees, litigation expenses, costs, and expert witness fees and costs. Ms. Blaney unsuccessfully sought a supplemental judgment to offset the additional federal income tax consequences she will incur because she was not given the business representative position. She is not seeking a judgment to offset all the taxes she will incur from the $638,764 damage award. 2 VRP at 291-92. She is only seeking a judgment for the $244,753 in additional taxes she must pay above and beyond those she would have had to pay if the District had properly hired her as a business representative.² She also is not asking for a jury instruction on the federal income tax consequences, but rather for the judge to award them after the jury determines damages.

The District appealed, arguing the jury instruction on front pay constituted prejudicial error. Although the Court of Appeals found the jury instruction erroneous because it denied the jury the discretion to determine the duration of Ms. Blaney's future employment, it found the error was harmless because the District only offered speculative evidence to show that Ms. Blaney would have been terminated prior to retirement. Blaney, 114 Wash.App. at 84-85, 55 P.3d 1208.

Ms. Blaney cross appealed the trial court's denial of her motion for a supplemental judgment to offset the additional federal income tax consequences, arguing that WLAD entitled her to the offset. The Court of Appeals characterized the offset as actual damages under WLAD, and remanded to the trial court for a calculation of the offset and determination of the amount of attorney fees and costs on appeal to be awarded to Ms. Blaney. Id. at 101, 55 P.3d 1208.

We granted the District's petition for review of whether the front pay jury instruction constituted harmless error and whether WLAD entitles Ms. Blaney to an offset for the additional federal income tax consequences. Blaney v. Int'l Ass'n of Machinists & Aerospace Workers, Dist. No. 160, 149 Wash.2d 1010, 69 P.3d 875 (2003). We also consider Ms. Blaney's request for attorney fees on appeal pursuant to RCW 49.60.030(2).

II. ANALYSIS

A. The Jury Instruction on Front Pay was Erroneous but Harmless.

The District maintains that the jury instruction on front pay constituted prejudicial error,³ while Ms. Blaney asserts that there was no error or the error was harmless. Alleged errors of law in jury instructions are reviewed de novo. Keller v. City of Spokane, 104 Wash.App. 545, 551, 17 P.3d 661 (2001), aff'd, 146 Wash.2d 237, 44 P.3d 845 (2002). Jury instructions are proper when they permit the parties to argue their theories of the case, do not mislead the jury, and properly inform the jury of the applicable law. Hue v. Farmboy Spray Co., 127 Wash.2d 67, 92, 896 P.2d 682 (1995).

Lords v. Northern Automotive Corp. properly 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.'" 75 Wash.App. 589, 605, 881 P.2d 256 (1994). The length of an employee's future employment is a question of fact for the jury, and the duration of future employment may not necessarily extend until retirement. Id. at 607, 881 P.2d 256.

The trial court's instruction to the jury to calculate future earnings "from today until the time Ms. Blaney may reasonably be expected to retire," CP at 240, was improper because it denied the jury the discretion to determine the duration of Ms. Blaney's future employment—a duration that may not necessarily extend to retirement. Lords, 75 Wash.App. at 605, 881 P.2d 256.

Having determined that the front pay jury instruction was erroneous, we next address whether it was harmless. An erroneous jury instruction is harmless if it is "not prejudicial to the substantial rights of the part[ies] ..., and in no way affected the final outcome of the case." State v. Britton, 27 Wash.2d 336, 341, 178 P.2d 341 (1947). A prejudicial error, on the other hand, affects or presumptively affects the results of a case, and is prejudicial to a substantial right. Id. When considering erroneous instructions, this court presumes prejudice, subject to a comprehensive examination of the record:

When the record discloses an error in an instruction given on behalf of the party in whose favor the verdict was returned, the error is presumed to have been prejudicial, and to furnish ground for reversal, unless it affirmatively appears that it was harmless. However, it becomes our duty, whenever such a question is raised, to scrutinize the entire record in each particular case, and determine whether or not the error was harmless or prejudicial.

Id. at 341, 178 P.2d 341 (citation omitted; emphasis added).

Scrutiny of the Blaney record reveals that the erroneous front pay jury instruction was harmless because the District suffered no prejudice. See id. Ms. Blaney presented evidence to prove that she would work until retirement. She testified that she would work until age 65. 3 VRP at 398. Dr. Bassett testified that the average retirement age is 62.8. 6 VRP at 965. While Ms. Blaney provided nonspeculative evidence, the District provided none. Instead, during its cross-examination of Dr. Bassett, the District suggested that involuntary removal would preclude Ms. Blaney from working until retirement. For support, the District provided evidence surrounding the "at-will" nature of the business representative position.⁴

However, the District's arguments are unpersuasive for two reasons. First, the removal of a business representative is not entirely at the will of the directing business...