Lodis v. Corbis Holdings, Inc.

• Decision Date: 28 December 2015
• Docket Number: No. 72342–1–I.,72342–1–I.
• Citation: 366 P.3d 1246,192 Wash.App. 30
• Parties: Steven LODIS and Deborah Lodis, a marital community, Appellants, v. CORBIS HOLDINGS, INC., a Washington corporation; Corbis Corporation, a Nevada corporation; and Gary Shenk, an individual, Respondents.
• Court: Washington Court of Appeals

192 Wash.App. 30

366 P.3d 1246

Steven LODIS and Deborah Lodis, a marital community, Appellants,

v.CORBIS HOLDINGS, INC., a Washington corporation; Corbis Corporation, a Nevada corporation; and Gary Shenk, an individual, Respondents.

No. 72342–1–I.

Court of Appeals of Washington, Division 1.

Dec. 28, 2015.

John Patrick Sheridan, Mark W. Rose II, The Sheridan Law Firm, P.S., Seattle, WA, for Appellants.

Jennifer Ann Parda–Aldrich, Jeffrey Allen James, Sebris Busto James, Bellevue, WA, for Respondents.

DWYER, J.

¶ 1 Trials matter. The results of trials matter. The manner in which a trial takes place, the evidence admitted, and the judicial rulings made all matter. In this case, the plaintiff, Steven Lodis, being already unhappy with the results of two separate jury trials arising from causes of action asserted in the complaint herein, finds himself similarly disaffected by the result of the third jury trial in this matter. In an effort to obtain yet a fourth jury trial in this cause, Lodis seeks to recharacterize and redefine numerous discretionary rulings made by the trial judge. As should be the case with all endeavors of this type, Lodis's entreaty "now meets the implacable gaze of the appellate court."¹ We affirm.

I

1. Lodis Sues Corbis; His Claims are Dismissed by the Trial Court or Rejected by the First Jury; A Second Jury Finds That Lodis Breached His Fiduciary Duty and Awards Damages to Corbis; Lodis Appeals.

¶ 2 We summarized the facts preceding the first appeal herein in Lodis v. Corbis Holdings, Inc., 172 Wash.App. 835, 292 P.3d 779 (2013).²

Corbis Corporation supplies digital images and stock photography worldwide. Steven Lodis was hired in 2005 by then-chief-executive-officer (CEO) Steve Davis to serve as vice president of worldwide human resources (HR) for Corbis. In July 2007, 37 year old Gary Shenk replaced Davis as CEO. Davis expressed concerns to Shenk about Lodis's performance. Instead of terminating Lodis, Shenk appointed Lodis to his nine person executive management team. Lodis was 55 at the time of the promotion. He initially received positive performance reviews from Shenk.

After becoming CEO, Shenk made many comments indicating his preference for younger workers. He talked about older workers being "out of touch," "an old-timer," "grandmotherly," or "the old guy on [the] team." Shenk also expressed interest to Lodis in hiring younger workers for his executive team.

Lodis spoke with Shenk on several occasions about Shenk's age related comments. Lodis explained that there was a growing concern among Corbis employees about Shenk's comments. As the highest ranking HR officer at Corbis, Lodis reminded Shenk that age should not be a factor in hiring or firing employees. Lodis explained later that he admonished Shenk, because he was "trying to protect [him]." In late 2007, Lodis expressed his concern about Shenk's comments to Corbis General Counsel Jim Mitchell. Around that same time, in late 2007 or possibly January 2008, Shenk promoted Lodis to senior vice president. Lodis also received a pay raise and incentive bonus at that time.

In January 2008, Shenk organized executive team members and an independent consultant to conduct Lodis's annual performance review. The parties dispute the circumstances surrounding that performance review. Lodis alleges that Shenk specifically recruited Lodis detractors to compile a list of Lodis's faults and reasons to fire Lodis, because of Lodis's complaints to Shenk about the possible age discrimination. Corbis counters that the independent consultant found Shenk's reviews to be "off the charts negative," which precipitated Shenk putting Lodis on probation.

Part of Lodis's probation required him to meet and discuss his working relationships with his colleagues. Shenk terminated Lodis for cause on March 26, 2008, for failing to meet the terms of his probation. Lodis allegedly lied to Shenk about meeting with the people who reported directly to him and failed to improve his relationship with them. Corbis claims this is the actual reason for Lodis's termination, along with ongoing performance issues and retaliation against another employee regarding a sexual harassment claim. Lodis counters that the performance review and probation were pretextual in order to fire Lodis for his complaints about Shenk's purported age discrimination.

Three months after his termination, Lodis sued Corbis and Shenk, alleging age discrimination under RCW 49.60.180 and retaliation under RCW 49.60.210. Judge Michael Hayden granted Corbis's motion for summary judgment on the retaliation claim.... At trial, Judge Bruce Heller denied ... Lodis's requests to ... reinstate his retaliation claim.

....

During discovery, Corbis ... discovered that Lodis failed to record any vacation time in the payroll system during his tenure, but accepted a payout of $41,155 plus a 401(k) match of $1,235 for 329 hours of accrued but unused vacation time. Based on this evidence, Corbis counterclaimed against Lodis for breach of fiduciary duty, unjust enrichment, and fraudulent misrepresentation. At trial, Mary Tomblinson, Corbis's payroll coordinator and HR system analyst, testified that Lodis used at least 35 more vacation days than he was entitled to. A summary of her analysis of those records was also admitted into evidence.

Before the first trial, the trial court refused to decide as a matter of law whether Lodis owed a fiduciary duty, instead leaving the issue for the jury. The jury found that Corbis had not engaged in age discrimination. It found in favor of Lodis on the unjust enrichment and fraud counterclaims. However, the jury found that Lodis owed a fiduciary duty and breached that duty, but awarded no damages. The trial court granted a new trial on Corbis's breach of fiduciary duty counterclaim based on this incongruous result of liability but no damages.

Before the second trial, Corbis moved for partial summary judgment to establish that Lodis was an officer with fiduciary duties. In its reply brief to that motion, Corbis introduced corporate resolutions indicating Lodis's status as an officer. Based on this evidence, Judge Heller found as a matter of law that Lodis was an officer.

The second jury found that Lodis ... did breach his fiduciary duty by failing to record any vacation time and accepting the payout. The jury awarded damages in the full amount of the vacation payout: $42,389.

Lodis, 172 Wash.App. at 842–46, 292 P.3d 779 (footnote omitted).

2. Following Appeal, Lodis's Retaliation Claim is Remanded for Trial Before A Third Jury.

¶ 3 On appeal following the second jury trial, we affirmed the prior judgments and jury verdicts regarding the age discrimination claim and the breach of fiduciary duty counterclaim, but reversed Judge Hayden's order granting summary judgment dismissal of Lodis's retaliation claim. Lodis, 172 Wash.App. at 852, 292 P.3d 779. As a result, the retaliation claim was remanded for what would be the third trial in this action, held before Judge Heller in May 2014.

3. Lodis's Retaliation Claim is Premised Upon Five Alleged Admonishments of Shenk.

¶ 4 To establish a claim for retaliation under RCW 49.60.210, Lodis needed to prove that he had engaged in certain protected activity and that Corbis, in turn, took adverse employment action against him for having done so. Lodis, 172 Wash.App. at 846–47, 292 P.3d 779. Lodis alleged that his protected activity was comprised of admonishing Shenk on five separate occasions for making "ageist" comments. Corbis and Shenk denied that any of these admonishments ever occurred.

¶ 5 Lodis testified that the first of the five alleged admonishments occurred sometime in the spring of 2007, after Shenk allegedly referred to Corbis's then-director of compensation and benefits as the "old guy" on Lodis's human resources team. Lodis testified that he asked Shenk to "stop referring to [the employee] as ‘the old man on the team.’ " Shenk denied ever referring to the employee in that manner or ever being admonished by Lodis for doing so.

¶ 6 Lodis next testified that in the spring or summer of 2007, he admonished Shenk for a second time after Shenk referred to his new executive team as a "young team,"³ which was brought to Lodis's attention by Corbis's then-human resources manager. Lodis also testified that he again admonished Shenk in August or September 2007 for referring to his executive team as a "young team," after Lodis (he claimed) discussed the issue with Corbis's then-CFO. Further, Shenk admitted that he referred to his executive team in that manner but stated that it had nothing to do with age and, rather, was meant "to express the passion, energy, and newness, the new thinking that those team members brought to the table." Further, Shenk denied that Lodis had ever discussed this issue with him.

¶ 7 Lodis further testified that, in approximately November 2007, he admonished Shenk for a fourth time after Shenk referred to a Corbis employee—who had been identified for possible termination as part of a reduction in force—as "old." Shenk denied ever referring to the employee in that manner and denied that Lodis had ever discussed this issue with him.

¶ 8 Finally, Lodis testified that, in late November or early December 2007, he admonished Shenk for a fifth time after Shenk expressed that he wished to replace the then-senior vice president of Corbis's "Green Light Division" with a "young Hollywood type." Shenk denied that he sought to replace the employee with a "young Hollywood type," although he acknowledged that he considered an applicant for employment who resided in the Hollywood, California area.⁴ Shenk again denied that Lodis ever expressed any concerns regarding this issue to him.

¶ 9 Lodis testified that, in early December 2007, he reported his concerns about Shenk's comments to Jim Mitchell, Corbis's then-general counsel. Mitchell denied that this conversation ever occurred. In any event, Lodis admitted that he had no knowledge as to whether Mitchell informed...