Marin v. King Cnty.

• Decision Date: 11 July 2016
• Docket Number: No. 72666–8–I,72666–8–I
• Citation: 378 P.3d 203,194 Wash.App. 795
• Parties: Ignacio Marin, Appellant, v. King County, Washington, Respondent.
• Court: Washington Court of Appeals

194 Wash.App. 795

378 P.3d 203

Ignacio Marin, Appellant,

v.King County, Washington, Respondent.

No. 72666–8–I

Court of Appeals of Washington, Division 1.

FILED: June 6, 2016

July 11, 2016.

James Wilson Kytle, Mary Ruth Mann, Mann & Kytle PLLC, 200 1st Ave., W., Ste. 550, Seattle, WA, 98119–4204, for Appellant.

Patricia Anne Eakes, Angelo J. Calfo, Damon Clay Elder, Calfo Harrigan Leyh & Eakes LLP, 999 3rd Ave., Ste. 4400, Seattle, WA, 98104–4022, for Respondent.

Leach, J. ¶ 1 Ignacio Marin appeals the dismissal of this lawsuit against his former employer, King County County). Marin alleged disparate treatment, hostile work environment, and failure to accommodate disabilities while he worked in the County's Wastewater Treatment Division (WTD). The trial court dismissed Marin's disparate treatment claim on summary judgment. After the close of evidence at trial, the court directed a verdict for the County on Marin's claim of hostile work environment based on retaliation. The jury then rendered unanimous defense verdicts on the remainder of Marin's hostile work environment claim and on his failure-to-accommodate claim. On appeal, Marin makes 18 assignments of error. Because he fails to support several assignments with adequate argument, citations to the record, and legal authority, and the remaining assignments lack merit, we affirm.

BACKGROUNDSubstantive Facts

¶ 2 Ignacio Marin immigrated to the United States from Peru in 1975. In 1982, he began working as an operator for WTD at the West Point Treatment Plant in Seattle. Marin suffers from anxiety, depression, and panic attacks.

¶ 3 Operators at King County wastewater treatment plants work on crews of five or six people led by a shift supervisor. They have responsibility for various types of wastewater treatment equipment, some of it hazardous. They also respond to emergencies, ensure compliance with safety procedures, and clean the plant.

¶ 4 Marin joined D Crew at West Point in 2007. His supervisor was James Sagnis, who at times appointed Mark Horton, the most experienced crew member, as a temporary supervisor. Marin had a turbulent relationship with Sagnis and Horton. In April 2009, Horton complained to Sagnis that Marin refused to follow a “priority directive” that the plant manager had issued. The directive requested that all employees assist in quickly cleaning the plant's preaeration tanks. Marin worked on the priority tasks for less than an hour and spent most of two days performing other, low-priority work. When Horton confronted Marin, Marin told him the preaeration work made him ill. Horton informed Sagnis that he suspected Marin was using sickness as an excuse to avoid doing the unpleasant priority tasks. Marin secretly recorded two conversations with Sagnis about these accusations. In May, Sagnis gave Marin a “documented oral reprimand.” Marin promptly filed a union grievance of the reprimand. The County later investigated the incident, concluded that the reprimand was based on a misunderstanding, and withdrew it.¹

¶ 5 In June, Marin complained to WDT's human resources department (HR), alleging a hostile work environment. The County hired an independent investigator, Karen Sutherland, to investigate these complaints.

She found no evidence to support Marin's accusations.

¶ 6 The same month, following his conflict with Sagnis, Marin requested, and the County granted, a transfer to Jim Alenduff's C Crew at the South Plant in Renton. This assignment was initially temporary. Meanwhile, that October, Sagnis told an HR staff member that Marin had “shit all over the crew” and “it would not be pleasant” if he returned. The County gave Sagnis a written reprimand for threatening retaliation against Marin.

¶ 7 Like other West Point operators, Marin considered South Plant a desirable assignment because of its more convenient location. Because of the size of South Plant and its differences from West Point, however, Marin needed training to be proficient in the new plant. At his crew's request, Alenduff restricted Marin's work duties while his assignment was temporary. He later explained that Marin repeatedly made errors on C Crew that put crew members in “jeopardy.”

¶ 8 In response, Marin complained to HR that he was not receiving meaningful assignments, the crew did not want him working in their areas, and they were aggressive toward him when he made mistakes. Marin alleged that members of C Crew harassed, discriminated against, and retaliated against him. The County again hired Sutherland to investigate, but this time Marin did not cooperate. Sutherland again found no evidence of discrimination.

¶ 9 As Marin's reassignment to South Plant had been temporary, the County offered to return him to West Point. But after the conflicts on C Crew and after meeting B Crew supervisor Cheryl Read, Marin decided to remain at South Plant and move to B Crew. He began on that crew in late October 2009. Meanwhile, through his attorney, Marin anonymously reported to the County that Alenduff had shown obscene computer images to coworkers, including a female custodian. Alenduff was eventually forced to resign.

¶ 10 In early 2010, Marin asked the County to make his transfer to Read's crew permanent to accommodate his posttraumatic stress disorder (PTSD). The County agreed in April 2010.

¶ 11 While on B Crew, Marin repeatedly told HR and disability services he was happy with his new supervisor and crew and did not need more accommodations. In December 2010, however, Marin did not follow the correct procedure to “lock out” and “tag out” a sewage pump. Marin approached Read and told her about the incident on the same day. Read saw it as a basic error for someone with Marin's experience. Marin perceived Read to be yelling at him and became anxious. He told her he had to visit his doctor and left early. Read did not see Marin again until January 1, 2011. That week, she and Marin walked through the procedure he should have followed, and she gave him a Teach/Lead/Coach memo, or TLC. A TLC is not discipline, though management may base future discipline on a TLC.

¶ 12 Marin took medical leave on January 5. The County asked for medical information and tried to engage him in its process. Marin sent notes from two doctors saying that work had aggravated his “acute situational stress” and PTSD.² The County requested more information. Marin did not provide it. Instead, he gave notice he would retire in May 2011.

Procedural Facts

¶ 13 Marin sued the County in July 2011. He alleging six causes of action: disparate treatment, hostile work environment, and failure to accommodate disabilities under the Washington Law Against Discrimination³ (WLAD), wrongful discharge, and both intentional and negligent infliction of emotional distress.

¶ 14 At the County's request, the court found that Marin's recordings of his conversations with Sagnis violated the privacy act⁴ and excluded the recordings and Marin's observations of the conversations. The court also sanctioned Marin's counsel $5,000 for failing to disclose the recordings' existence until after her firm deposed Sagnis.

¶ 15 After discovery, the trial court dismissed on summary judgment four of Marin's claims: disparate treatment under WLAD, wrongful discharge, and both types of emotional distress. Before trial, the court excluded evidence about allegations that occurred before the limitations period began in May 2008, with limited exceptions. The court also ruled that Marin could not offer evidence that any coworker retaliated against him without first laying the foundation that the coworker was aware of Marin's discrimination complaint.

¶ 16 The parties tried the case over 15 days in September 2014. During voir dire, juror 71 disclosed on his questionnaire and in response to further questions from Marin that he was a “[g]ood friend with a King County prosecutor.” The trial court declined to dismiss juror 71 at that point.

¶ 17 During trial, the trial court struck a statement by Marin's coworker Lloyd Holman that he heard from unidentified coworkers that Marin had complained against Alenduff. The court had conditioned that statement's admission on Marin “t[ying] it up” with evidence of the speakers' identities and the statements' timing—evidence Marin did not provide. Later, the trial court allowed the County's expert, Dr. McClung, to testify that Marin had “adjustment disorder with paranoid personality traits.” But the court excluded any “comment on credibility” from McClung, such as testimony that Marin “is likely to perceive harassment.”

¶ 18 At the close of evidence, the court granted the County's request for a directed verdict in part. It dismissed the retaliation component of Marin's hostile work environment claim but allowed the jury to decide the rest of his hostile work environment claim and his accommodation claim. The jury then rendered unanimous verdicts for the County on those claims. The court awarded the County $14,378.37 in costs. Marin appeals.

ANALYSISExclusion of Recorded Conversations and Resulting Discovery Sanctions

¶ 19 Marin challenges the trial court's exclusion of evidence of his conversations with his D Crew supervisor, James Sagnis, and its imposition of sanctions against his counsel for delayed disclosure of recordings of those conversations. This court denied discretionary review of these rulings.

¶ 20 We review a trial court's interpretation of statutes and court rules de novo.⁵ We review for abuse of discretion a trial court's choice of sanctions for violation of a discovery order.⁶

¶ 21 Marin first contends that his conversations with Sagnis were not “private” under RCW 9.73.030. No statute defines the term “private.” To determine whether a conversation is private under the privacy act, we consider “(1) the subject matter of the communication, (2) the location of the participants, (3) the potential presence of third parties, (4) the role of the interloper, (5) whether the parties ‘manifest a subjective intention that it be private,’...