Farah v. Hertz Transporting, Inc.

• Decision Date: 03 October 2016
• Docket Number: No. 73268–4–I,73268–4–I
• Citation: 383 P.3d 552,196 Wash.App. 171
• Parties: Hassan Farah, an individual, Ileys Omar, an individual, Marian Mumin, an individual, Dahir Jama, an individual, Fouzia M. Mohamud, an individual, Marian Ali, an individual, Abdiziz Abdulle, an individual, Saalim Abubkar, an individual, Mohamed Ismail, an individual, Sudi Hashi, an individual, Hali Abdulle, an individual, Murayad Abdullahi, an individual, Zainab Aweis, an individual, Fardowsa Aden, an individual, Maryan Muse, an individual, Asli Mohamed, an individual, Sahra Gelle (a/k/a Hani Huseen), an individual, Asha Farah, an individual, Ali Adam Abdi, an individual, Muna Mohamed, an individual, Farah Geedi, an individual, Ahmed Hassan Hussein, an individual, Ibrahim Salah, an individual, Ahmed A. Hirsi, an individual, and Mohamud A. Hassan, an individual, Appellants, v. Hertz Transporting, Inc., Matt Hoehne, and Todd Harris, Respondents.
• Court: Washington Court of Appeals

196 Wash.App. 171

383 P.3d 552

Hassan Farah, an individual, Ileys Omar, an individual, Marian Mumin, an individual, Dahir Jama, an individual, Fouzia M. Mohamud, an individual, Marian Ali, an individual, Abdiziz Abdulle, an individual, Saalim Abubkar, an individual, Mohamed Ismail, an individual, Sudi Hashi, an individual, Hali Abdulle, an individual, Murayad Abdullahi, an individual, Zainab Aweis, an individual, Fardowsa Aden, an individual, Maryan Muse, an individual, Asli Mohamed, an individual, Sahra Gelle (a/k/a Hani Huseen), an individual, Asha Farah, an individual, Ali Adam Abdi, an individual, Muna Mohamed, an individual, Farah Geedi, an individual, Ahmed Hassan Hussein, an individual, Ibrahim Salah, an individual, Ahmed A. Hirsi, an individual, and Mohamud A. Hassan, an individual, Appellants,

v.Hertz Transporting, Inc., Matt Hoehne, and Todd Harris, Respondents.

No. 73268–4–I

Court of Appeals of Washington, Division 1.

FILED: October 3, 2016

John Patrick Sheridan, Mark W. Rose II, The Sheridan Law Firm, P.S., 705 2nd Ave., Ste. 1200, Seattle, WA, 98104–1798, for Appellants.

Mark Stephen Filipini, Daniel Philip Hurley, K & L Gates LLP, 925 4th Ave., Ste. 2900, Seattle, WA, 98104–1158, for Respondents.

Trickey

, J.

¶1 Hassan Farah and other plaintiffs sued Hertz Transporting, Inc. for employment discrimination. The jury returned a defense verdict. Farah moved for a new trial, which the court denied. On appeal, Farah argues that the trial court should have instructed the jury on pretext. We hold that this instruction would have been appropriate but was not necessary. Farah's other claims do not require reversal. We affirm the trial court.

FACTS

¶2 Hassan Farah and 24 other Somali immigrants, who are practicing Muslims, worked as “shuttlers” for Hertz Transporting at Seattle–Tacoma International Airport (Sea–Tac). “Shuttlers” move rental vehicles around the grounds, for example, from where customers return the cars to locations for cleaning or maintenance.

¶3 In September 2011, Hertz implemented a break policy for its shuttlers, requiring them to “punch” out for all personal activities, including prayer. The parties dispute whether employees were required to punch out for prayer before this new policy. They agree that no one was disciplined for not punching out for prayer until September 2011.

¶4 The policy went into effect on September 30, 2011. On that day or within the first few days of October, Farah and the other plaintiffs prayed without punching out. Hertz suspended them. Then, on October 13, 2011, one of the Hertz managers sent letters to Farah and the other suspended employees, informing them that they could return to work if they would acknowledge that they had to punch out for prayer. Eight of the suspended employees signed the acknowledgment form and returned to work. When the plaintiffs did not sign the acknowledgment form, Hertz terminated their employment.

¶5 Around the time of the suspension and eventual terminations, roughly half of the shuttlers were practicing Muslims. The shuttler workforce remains about 50 percent Muslim.

¶6 Farah and the other plaintiffs (together Farah) sued Hertz and two of the Hertz managers for discrimination based on national origin and religion. The case proceeded to a jury trial.

¶7 Jeffrey Wilson, Hertz's manager for the Sea–Tac location in 2010 to 2011, testified at trial. Farah sought to introduce an e-mail Wilson had written to other managers about the break policies. The trial court excluded the e-mail. Other Hertz managers testified that they informed their employees about the policy by posting notices, in English, about the policy in several prominent locations, discussing it at meetings, and asking employees if they had punched out as the employees entered the prayer rooms. Many of the plaintiffs testified that they were not aware of the policy change at the time they were suspended.

¶8 During the trial, Hertz frequently objected to Farah's manner of questioning witnesses, asserting that Farah was being argumentative, repetitive, and misleading. The court sustained many of these objections. When Farah asked, outside the presence of the jury, for the court to explain its rulings, the court articulated its concern that Farah was needlessly consuming time:

[Y]ou are focusing too much on one portion of the testimony and being redundant. And you are being theatrical in a way that is a waste of time and is inappropriately argumentative.

....

And if we do the more theatrical approach, and redundant and argumentative approach, it's both inappropriate and takes about five times longer.^[1]

¶9 The court gave the pattern jury instructions for employment discrimination cases where the plaintiff alleges disparate treatment. Farah requested an instruction on a permissible inference that the jury would be allowed to draw if it disbelieved Hertz's stated reasons for terminating Farah. The court did not give the instruction. We, along with the parties, refer to this as a “pretext instruction.”²

¶10 The jury returned verdicts for the defense. Farah moved for a new trial. The court denied his motion. Farah appeals.

ANALYSIS

Pretext Instruction

¶11 Farah argues that the trial court erred by refusing to instruct the jury on pretext. He contends that, without the instruction, the jury was not fully informed of the applicable law. Hertz responds that the instructions were adequate and that pretext instructions are inappropriate under Washington law. While the instruction would have been appropriate, it was not necessary. Thus, refusing to give the instruction was not error.

¶12 Jury instructions are sufficient when they allow parties to argue their theory of the case, are not misleading, and, when taken as a whole, inform the jury of the applicable law. Raum v. City of Bellevue, 171 Wash.App. 124, 142, 286 P.3d 695 (2012)

, review denied, 176 Wash.2d 1024, 301 P.3d 1047 (2013). If the trial court's jury instructions are otherwise sufficient, the court does not need to give a party's proposed instruction, though that instruction may be an accurate statement of the law. City of Seattle v. Pearson, 192 Wash.App. 802, 821, 369 P.3d 194 (2016). The trial court may decide which instructions are necessary to “guard against misleading the jury.” Gammon v. Clark Equip. Co., 104 Wash.2d 613, 617, 707 P.2d 685 (1985).

¶13 We review a trial court's decision whether to give a particular jury instruction for an abuse of discretion. Clark Cty. v. McManus, 185 Wash.2d 466, 474, 372 P.3d 764 (2016)

. That includes, “a trial court's rejection of a party's jury instruction.” Pearson, 192 Wash.App. at 820, 369 P.3d 194.

¶14 Here, Farah requested the following jury instruction, taken from the Eighth Circuit's model jury instructions:

You may find that a plaintiff's religion or national origin was a substantial factor in the defendant's [sic] decision to suspend or terminate a plaintiff if it has been proved that the defendants' stated reasons for either of the decisions are not the real reasons, but are a pretext to hide religious or national origin discrimination.^{[3 ]}

This instruction is an accurate statement of the law. The Supreme Court held in Reeves v. Sanderson Plumbing Products. Inc.

that this inference was permissible in employment discrimination cases that rely on the McDonnell Douglas⁴ burden-shifting framework. 530 U.S. 133, 142–43, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)

.⁵ Washington adopted this standard for Washington's Law Against Discrimination (WLAD), chapter 49.60 RCW, cases soon after the Supreme Court announced it in Reeves. Hill v. BCTI Income Fund–I, 144 Wash.2d 172, 178–79, 23 P.3d 440 (2001).⁶

¶15 Washington's pattern jury instructions for employment discrimination do not include a pretext instruction. 6A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL 330.01 (6th ed. 2012) (WPI). In fact, the comments to the instruction indicate that “an instruction or language on pretext is inappropriate.” WPI 330.01 cmt. at 346. That comment cites the Washington State Supreme Court case Kastanis v. Educational Employees Credit Union, 122 Wash.2d 483, 496, 865 P.2d 507, 859 P.2d 26 (1994).

¶16 In Kastanis, the employer requested an instruction that the plaintiff had to prove that its stated reasons for firing the plaintiff were a pretext. 122 Wash.2d at 494, 865 P.2d 507, 859 P.2d 26. The court held that, while proof of pretext was necessary for the plaintiff's case to survive summary judgment, a jury instruction on pretext was unnecessary because, at trial, the plaintiff needed to meet only his ultimate burden of proving that the employer intentionally discriminated. 122 Wash.2d at 494–95, 865 P.2d 507, 859 P.2d 26. Division One of the Court of Appeals also rejected an argument that employment discrimination cases required complex burden shifting and pretext instructions. Burnside v. Simpson Paper Co., 66 Wash.App. 510, 524, 832 P.2d 537 (1992)

, aff'd, 123 Wash.2d 93, 864 P.2d 937 (1994)

. It held that, “[i]ssues of the plaintiffs prima facie case, the employer's burden to rebut with a legitimate nondiscriminatory reason, and the employee's showing of pretext are irrelevant once all the evidence is in.” Burnside, 66 Wash.App. at 524, 832 P.2d 537. Instructions on pretext or shifting burdens would create “needless confusion.” Burnside, 66 Wash.App. at 524, 832 P.2d 537.

¶17 Burnside

and Kastanis are not dispositive because the instructions at issue in those cases dealt with shifting burdens of proof rather than permissible inferences. In Kastanis, the employer asked the court to instruct the jury that the employee had to prove that the employer's offered business necessity explanation was a pretext. 122 Wash.2d at 493–94, 865 P.2d 507, 859 P.2d 26. In Burnside, the court did not specify what the proposed instructions at issue were but compared them to the one offered in Pannell v. Food Services of America, 61 Wash.App. 418, 431–32, 810 P.2d 952 (1991). Burnside, 66 Wash.App. at 523, 832 P.2d...