Collins v. Clark County Fire Dist. No. 5

• Decision Date: 20 April 2010
• Docket Number: No. 36968-1-II.,36968-1-II.
• Citation: 155 Wash.App. 48,231 P.3d 1211
• Court: Washington Court of Appeals
• Parties: Sue COLLINS and Valerie Larwick, Respondents and Cross Appellants,Helen Hayden and Kristy Mason, Plaintiffs,v.CLARK COUNTY FIRE DISTRICT NO. 5 and Marty James, Appellants and Cross Respondents,City of Vancouver and County of Clark, Defendants.

155 Wash.App. 48

231 P.3d 1211

Sue COLLINS and Valerie Larwick, Respondents and Cross Appellants,Helen Hayden and Kristy Mason, Plaintiffs,v.CLARK COUNTY FIRE DISTRICT NO. 5 and Marty James, Appellants and Cross Respondents,City of Vancouver and County of Clark, Defendants.

No. 36968-1-II.

Court of Appeals of Washington,

Division 2.

March 11, 2010.

As Correct on Denial of Reconsideration April 20, 2010.

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Edwin Arthur Harnden, Attorney at Law, Portland, OR, Daniel G. Lloyd, City of Vancouver Attorneys Office, Dennis Hunter, Attorney at Law, Vancouver, WA, for Defendants.

Michael Alexander Patterson, Daniel Paul Crowner, Patterson Buchanan Fobes Leitch & Kalzer, Seattle, WA, Elizabeth M. Alvarado, Willette & Guerra LLP, McAllen, TX, for Appellants/Cross-Respondents.

Thomas Stephenson Boothe, Attorney at Law, Portland, OR, for Respondents/Cross-Appellants.

HUNT, J.

¶ 1 Defendants Clark County Fire District No. 5 and Marty James appeal the trial court's denial of their motions for a new trial and partial denial of their motions for remittitur to redetermine the jury's damages awards for Plaintiffs Sue Collins, Valerie Larwick, Kristy Mason, and Helen Hayden's gender discrimination, sexual harassment, and negligent supervision claims. Defendants argue that (1) substantial evidence failed to support the jury's damages awards to Collins and Larwick; (2) during closing argument, Plaintiffs' counsel improperly sent a message to the jury and improperly referenced insurance, causing the jury to base its damages award on passion and prejudice; and (3) in calculating Plaintiffs' attorney fees award, the trial court abused its discretion by setting the lodestar hourly rate at more than $225 and failing to subtract legal assistant time and non-compensable attorney time.

¶ 2 Collins and Larwick cross-appeal. They argue that the trial court abused its discretion in awarding insufficient attorney fees to all four Plaintiffs, specifically by setting the lodestar below the customary hourly rate, failing to apply a separate contingency multiplier to the lodestar, and refusing to award miscellaneous amounts for overhead costs. Larwick additionally argues that the trial court erred in remitting and reducing her jury awards for economic and non-economic damages.

¶ 3 We affirm the trial court's denial of Defendants' motions for a new trial and partial denial of their motions for remittitur to redetermine the jury's damages awards. We reverse the trial court's remittitur reduction of Larwick's jury awards for economic and non-economic damages and remand to the trial court for reinstatement. In addition, we reverse the trial court's remittitur reduction of Larwick's jury award for non-economic damages and remand to the trial court to reinstate this award to her. We affirm the trial court's attorney fees awards to all four Plaintiffs. And we award attorney fees and costs on appeal to Collins and Larwick.

FACTS

I. Plaintiffs' Claims

A. Background

¶ 4 In 1999, former Clark College first aid and health care instructor Valerie Larwick developed an idea to form a regional training center to establish emergency medical programs and to localize these resources for area fire districts. Clark County Fire District No. 5 (Fire District) then formed the Northwest Regional Training Center (“Training Center”) to accomplish these objectives. The Fire District operated the Training Center under an interlocal agreement with the City of Vancouver. This interlocal agreement enabled the Training Center to function like an independent contractor in providing first aid courses, paramedic training, and emergency healthcare instruction; and it provided for the Fire District to “retain all authority for provision of services, standards of performance, discipline and control of personnel.” Clerk's Papers and Supplemental Clerk's Papers (CP) at 1090.

¶ 5 In establishing the Training Center, the Fire District hired retired assistant fire chief Marty James to serve as the facility's manager and chief administrator. In this capacity, James assembled agendas for the Fire District's Board of Commissioners' meetings, served as the Fire District's human resources contact, supervised Training Center employees and operations, and exercised authority over employee salaries, promotion and demotion decisions, and employee performance reviews. In the spring of 2000, Larwick began volunteering at the Training Center; and in June, the Fire District hired her as the Training Center's full-time program director. The Fire District then hired Helen Hayden in July and Kristy Mason in December 2001.¹ Sue Collins, a City public works department employee, began working part time at the Training Center in November 2000; and the City transferred her to work full-time at the Training Center in January 2002. Unlike Larwick, Hayden, and Mason who received salaries from the Fire District, Collins remained on the City's payroll during her employment at the Training Center.

B. James's Sexually Harassing and Discriminatory Treatment of Subordinate Female Employees

¶ 6 During their employment at the Training Center, Larwick, Collins, Mason, and Hayden experienced James's sexually inappropriate comments and purposeful discrimination of female employees. For example, James regularly commented in their presence about the anatomy of female passersby, saying, “[N]ice legs,” and “[N]ice rack.” 5 Record of Proceedings (RP) at 641, 7 RP at 963, and 12 RP at 1805. Similarly, James commented on the anatomy of female employees, often discussing or comparing their breasts within the hearing range of other employees and visitors. James repeatedly remarked to Larwick and other female employees about “ladies' nipples getting hard,” 2 RP at 239-40, asking, “Is it cold in here, or are you happy to see me?” 7 RP at 964. And when female employees would bend down to pick up an object in front of James, he often said such things as, “Looks good from here,” or “That's how I like them, you know, down on their knees.” 9 RP at 1217.

¶ 7 In addition, James subjected female employees to a “boy's club” atmosphere and a “very purposeful exclusion” from staff meetings and conversations. 17 RP at 2484-85. He frequently said, “We need more testosterone around here,” while grabbing his crotch in front of Training Center personnel. 7 RP at 914 and 972. In conversations with Training Center personnel, James frequently described Collins and Larwick and other female employees as “stupid wom[e]n,” “stupid bitch[es],” and “lying bitch[es].” 5 RP at 641 and 7 RP at 973, 13 RP at 1975. And when James disagreed with a female employee, he often made comments such as, “[s]he must be PMSing,” or “[w]ho's on the rag.” 7 RP at 971, 9 RP at 1199, and 17 RP at 2472.

1. James's sexually harassing and discriminatory treatment of Larwick

¶ 8 Furthermore, Larwick and others noticed that James's sexist and demeaning conduct often targeted Larwick. He referred to Larwick as “a fucking cunt” and “a stupid bitch,” 12 RP at 1730-31; and, on one occasion, he told Collins that Larwick “doesn't have any panties on” under her pants. 12 RP at 1734. James also told Larwick he could see her panties through her slacks. On another occasion, James put a wind-up penis toy next to Larwick and laughed as it began hopping around her desk, even when he knew that Larwick had recently endured a family crisis, involving her then husband's sexual molestation of her daughter.

¶ 9 In response to James's daily jokes and sexual innuendos, Larwick tried to ignore his remarks and to stay out of his way. Although she observed that James's sexually harassing and sexist conduct made it difficult for her and other female employees to work, she did not report her concerns to the Fire District's human resources department because James served as the Training Center's human resources contact person.²

¶ 10 But when Larwick saw City fire department Chief Don Bivins at the Training Center's 2000 Christmas party, she decided to tell him about how James's “harassing comments” and constant “attacks” created “a toxic work environment” at the Training Center. 8 RP at 991. Bivins responded, “I'll try to steer [James] away from you.” 8 RP at 992.

¶ 11 After several months of hearing no word from Bivins and seeing no improvement in James's behavior, Larwick met again with Bivins to discuss her concerns. At the end of their conversation, Bivins promised to take care of the situation. But just as before, Larwick received no word from him after their meeting, nor did she see any improvement in James's behavior. To the contrary, she observed that reporting James to Bivins seemed to intensify James's hostility toward her.

¶ 12 Larwick next called Fire District Board of Commissioners Chairman Robert Torrens to discuss James's sexually harassing and demeaning comments. Torrens offered to meet her at the Training Center, but she refused, explaining, “I feel safer away from the training center.” 8 RP at 997. Larwick and Torrens then met at a different location, and she told him about James's hostility, sexual harassment, and sexist treatment of female subordinates. She also told Torrens that James's “disgusting comments,” such as, “[w]e need more testosterone around here,” did not reflect well on the Fire District's public image. 8 RP at 998. Torrens replied, “Well, that's Marty. You know, Val, that's just Marty.” 8 RP at 999.

¶ 13 Although Torrens “brought up the issue” at the next Board of Commissioners' meeting and spoke to James about it, James's conduct toward Larwick only became worse. 8 RP at 1000. Larwick observed that Torrens, like Bivins, was giving her “the cold shoulder.” 8 RP at 1001. Around this time, Training Center employees noticed that James's “disparaging” treatment of Larwick became “worse and worse.” 9 RP at 1189 and 1243. He “was constantly making very derogatory comments about [her].” 9 RP at 1243....