Forbes v. ABM Industries, Inc., No. 22656-5-III (WA 4/21/2005)
| Decision Date | 21 April 2005 |
| Docket Number | No. 22656-5-III,22656-5-III |
| Parties | CHERYL L. FORBES and, COLLEEN A. MYERS, Respondent and Cross Appellants, v. ABM INDUSTRIES, INC., and AMERICAN BUILDING MAINTENANCE COMPANY-WEST, Appellant. |
| Court | Washington Supreme Court |
Appeal from Superior Court of Spokane County. Docket No: 99-2-05753-2. Judgment or order under review. Date filed: 01/16/2004. Judge signing: Hon. Jerome J Leveque.
Counsel for Appellant(s), Keller Wayne Allen, Allen & McLane PC, 421 W Riverside Ave Ste 421, Spokane, WA 99201-0402.
Howard Mark Goodfriend, Edwards Sieh Smith & Goodfriend PS, 1109 1st Ave Ste 500, Seattle, WA 98101-2988.
Thomas W. McLane, Allen & McLane PC, 421 W Riverside Ave Ste 421, Spokane, WA 99201-0402.
Catherine Wright Smith, Edwards Sieh Smith & Goodfriend PS, 1109 1st Ave Ste 500, Seattle, WA 98101-2988.
Counsel for Respondent/Cross-Appellant, Mary Elizabeth Schultz, Attorney at Law, 818 W Riverside Ave Ste 810, Spokane, WA 99201-0917.
Cheryl Forbes sued American Building Maintenance (ABM) for employment sex discrimination, creating a hostile work environment, and retaliation. A jury awarded her $4 million. On appeal, ABM's contentions include the trial court erred in (1) instructing the jury regarding a pre-existing condition, (2) permitting an industrial psychologist to testify about improper employer tactics used to create a reason for employment termination, and (3) adding awards to compensate Ms. Forbes for judgment and attorney fee tax consequences. Ms. Forbes cross-appeals from the trial court's denial of her request for an additional award of pre-judgment attorney fees. We affirm the judgment but reverse the denial of additional fees.
From 1988 to 1997, Cheryl Forbes was employed by ABM as the manager of the company's Spokane office. In 1997, she went on a medical disability leave. ABM terminated her in early 1999. In October 1999, she sued ABM for sex discrimination, creating a hostile work environment and retaliation for complaining about the discriminatory conduct. In March and April 2003, Ms. Forbes' action and that of another former employee were tried together, despite ABM's efforts to sever the cases.
At trial, Ms. Forbes presented evidence of her job performance, the company's treatment of male employees who, she asserted, were similarly situated, and, beginning in 1996, the job environment she worked in after the company acquired the business of a Spokane competitor. The competitor's former owner, who had been openly antagonistic to Ms. Forbes before the acquisition, was brought into the Spokane operation as an employee.
Ms. Forbes testified that in 1989, the first year she managed ABM's Spokane branch, she increased profits 31 percent1. In the ensuing years, the company recognized her as one of just a few top managers in the nation. In 1992, she told Jack Smith, the senior vice-president of ABM's northwest region, she was interested in a promotion to either the Portland or Seattle branches. When the promotion to Seattle went to someone else, she confronted Mr. Smith, who told her that `Seattle wasn't ready for a woman manager.' Report of Proceedings (RP) at 2943. He also commented that her husband was in Spokane, and she should not force a move.
Ms. Forbes related she later heard Mr. Smith was wondering when she was going to have children. She asked him about this, and he told her he did not remember stating that to anyone; on the other hand, Ms. Forbes testified Mr. Smith did not assure her that children would not be an issue. Ms. Forbes testified that between 1990 and 1995, several persons in ABM management had approached her for sexual relations.
In September 1995, over Ms. Forbes' advice, ABM acquired Allied Janitorial (Allied), its largest competitor in the Spokane market. She believed ABM could eventually secure Allied's customers without buying the company because ABM offered better service at lower costs and could procure Allied by competition. ABM's janitorial division vice-president, Harold Edge, agreed with her. In addition, he testified the Allied acquisition was accomplished without following the company's protocol. Specifically, Mr. Smith and CEO William Steele presented it as `a done deal.' RP at 891.
Ms. Forbes testified David Watkins, Allied's owner, had been openly hostile to her in the past. She had heard rumors, and he admitted at trial, he told his employees and customers that the reason she had such high sales records was because she did her work on her `knee-pads,' implying she gained customers by trading sexual favors. RP at 2981. She was particularly apprehensive because Mr. Watkins was to become an ABM employee under her supervision after the acquisition. Ms. Forbes believed he would make it difficult to perform her managerial role. She told Mr. Smith of these concerns. Mr. Smith procured a promise from Mr. Watkins to quit making the accusations regarding her trading sexual favors for business.
Ms. Forbes testified Mr. Watkins would not accept direction from her. When she told him his car allowance expenses were not appropriate, he began sending his expense reimbursement requests directly to Mr. Smith to approve. Ms. Forbes testified that when she brought up anything that Mr. Watkins did not want to do, he would either go to Mr. Smith or just look at her and say, RP at 2993. When Ms. Forbes spoke with Mr. Smith about her difficulties with Mr. Watkins, he told her, `that's just Dave.' RP at 2994.
By January 1996, Ms. Forbes testified the effect of Mr. Watkins' lack of performance in serving the former Allied accounts was spilling over to the rest of the Spokane staff. In Exhibit 71, Ms. Forbes informed Mr. Smith by memo she was in a crisis management mode, not getting any help from Mr. Watkins and was receiving multiple complaints on his accounts. She and her assistant were averaging 11-hour workdays and could not keep up that pace. She asked Mr. Smith for help, but she received no reply. Additional memos elicited no response. Ms. Forbes stated she contacted Mr. Smith by phone, and he told her he would get back to her, but never did.
Ms. Forbes' problems with Mr. Watkins escalated when Mr. Watkins discovered an accounting method, directed by Mr. Smith, decreased the revenue attributed to Allied's former accounts and thereby lessened acquisition payments to him. Soon, Mr. Watkins was calling Ms. Forbes a thief to customers and to ABM employees. He renewed his old charges of sexual misconduct.
By May 1996, the situation required a visit from Donna Dell, ABM's human resources officer. Ms. Dell met with ABM employees privately, but she did not meet with Ms. Forbes. Ms. Dell later told Ms. Forbes her employees found her management style `too controlling.' RP at 3035. Ms. Forbes had never heard that criticism before. About that time, Mr. Smith, Mr. Watkins, and CEO William Steele met at a nearby resort to talk about Spokane branch management changes. Mr. Watkins told Mr. Smith he was going to sue ABM if it did not fire Ms. Forbes. He testified Mr. Smith told him ABM would bring in another person as co-manager, and Mr. Watkins would not have to report to Ms. Forbes. Ms. Forbes was not informed of the meeting or discussions.
In August 1996, Mr. Smith told Ms. Forbes ABM was placing Peter Cain in Spokane to assist her. Mr. Smith told her the acquisition `ha{d} not happened smoothly,' and it was her fault. RP at 3044. Mr. Cain arrived in late 1996. Contrary to her original understanding, he came with the title of co-manager. Soon, Mr. Cain established a friendly relationship with Mr. Watkins, and the other employees were dividing into camps, effectively circumventing her authority. In spring 1997, Mr. Smith told Ms. Forbes he had received employee complaints about her. When she challenged him, he traveled to Spokane and met with most of the office personnel, but not her.
In a June 30, 1997 memo, Mr. Smith notified Ms. Forbes that Mr. Cain was the sole branch manager, and she had been demoted to senior account manager. Ms. Forbes called Ms. Dell for assistance, but Ms. Dell refused to get involved because she said it looked like simply a `personality conflict' between Ms. Forbes and Mr. Smith. RP at 3077. On July 17, 1997, Ms. Forbes went on medical disability leave after presenting a doctor's letter informing ABM that she could not return to work due to stress. Her maximum salary was then $105,000. According to Ms. Forbes, no one from ABM ever contacted her to see how she was doing or told her the company was holding a job for her. After one year, her eligibility for disability compensation ended. She was terminated without notice.
Ms. Forbes presented evidence of ABM's dissimilar treatment of similarly situated male managers. For example, Adam Foltz, an assistant regional manager for ABM, lost three accounts in 1996 through 1997, totaling nearly half of the monthly receipts for his area. He testified management was supportive and recognized clients come and go as part of the business. He was promoted to general manager in 1999. Mr. Foltz agreed success as a branch manager required the support of upper management. `Another ABM manager testified that during his medical leave, he was allowed to keep his company car, and it was clear to him that ABM was holding a position available for him.
Two ABM women managers testified about unfavorable treatment. Christy Davis testified, as Bellevue branch manager, she quadrupled revenues, even gaining Microsoft for ABM. While she was out of state, Mr. Smith met with her employees, and then told her he had issues with her management style. Ultimately, Mr. Smith split her authority, moved the Microsoft account to the other manager, and cut her salary. She left ABM in 1999, after hearing more...
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