O'Meara v. Have A Heart Compassion Care, Inc.
| Decision Date | 19 July 2021 |
| Docket Number | 81139-8-I |
| Court | Washington Court of Appeals |
| Parties | MAKENNA O'MEARA, Respondent, v. HAVE A HEART COMPASSION CARE, INC., a Washington Corporation, and DAMON MARTINEZ, Appellants. |
UNPUBLISHED OPINION
Have a Heart Compassion Care, Inc. and Damon Martinez (collectively "Have a Heart") appeal the trial court's findings of fact and conclusions of law following a bench trial arising from Makenna O'Meara's claims of quid pro quo sexual harassment and retaliation in violation of the Washington Law Against Discrimination (WLAD) ch. 49.60 RCW wrongful discharge, and willful withholding of wages. Have a Heart raises multiple issues on appeal ranging from the trial court's credibility determinations to its conclusion that Have a Heart terminated O'Meara in violation of the WLAD. We affirm.
On June 28, 2016, O'Meara began working as a counter sales associate, or "budtender," for Have a Heart in the Greenwood neighborhood of Seattle. Martinez was the general manager of Have a Heart throughout O'Meara's employment.
On August 7, 2016, O'Meara and two of her fellow employees were victims of an attempted armed robbery where they were zip-tied and held at gunpoint. In the early hours of August 8, while police were still present, Have a Heart CEO Ryan Kunkel, COO Edward Mitchell, Martinez, and Steve Round came to the store's location to discuss the robbery with the victim-employees. The group told the employees that they could take paid time off.
O'Meara returned to Have a Heart on the afternoon of August 8, 2016 to be with her coworkers and process the events of the previous night. Martinez, Round, and other employees were present. Once at the store and realizing that she was in the same spot where she had been zip-tied 12 hours prior O'Meara began to feel uneasy. Round, who was checking inventory, approached O'Meara and asked if she would like to go outside for a walk. O'Meara agreed and the two went to an alley behind the store.
Round and O'Meara began talking about the previous day's events. They discussed O'Meara's past trauma, and Round's experiences with gun violence and the military. While they were talking, Round was rubbing O'Meara's back and shoulders in a sexually-suggestive manner. Round said that O'Meara needed a strong man in her life and that he could be her "big rock." Round told O'Meara that he could get her a position in inventory which would be safer and offer better pay.
O'Meara excused herself to address a text message from Sokha Kunkel, the wife of CEO Ryan Kunkel. O'Meara called Sokha, [1] who expressed her sympathies regarding the robbery and reaffirmed an offer of paid leave and counseling. O'Meara informed Martinez of her conversation with Sokha about paid leave and clocked out.
At Round's suggestion, he and O'Meara went to eat at a Mexican restaurant adjacent to Have a Heart where staff and management regularly gathered for meetings. Round offered O'Meara more alcohol at the restaurant, pulled his chair next to her, and engaged in additional sexually-suggestive behavior, including massaging O'Meara and attempting to put her hand on his leg.
After Round and O'Meara left the restaurant, they went to a nearby seating area to smoke cannabis. While there, Round pulled O'Meara against him, kissed her, pressed his erection against her pelvis, and attempted to seat her on his lap. O'Meara eventually made her way to her vehicle and texted Round that she had to go home. Round texted O'Meara five times following her departure; she responded to none of them.
The following day, August 9, 2016, O'Meara called Martinez in tears, telling him that Round kissed her and was sending her unwanted text messages. Martinez told O'Meara that Round would be fired, memorializing the commitment in a text that stated:
Following the call, O'Meara recounted Round's actions with her coworker, Alaina Wells. O'Meara and Wells went to Have a Heart to buy cannabis with their employee discounts, where Martinez told O'Meara to leave because Round was there and about to be fired.
Later that evening, Round texted O'Meara eight times. O'Meara blocked Round's number and forwarded the messages to Martinez, telling him that she was fearful and considering calling the police. One of Round's messages stated that he knew of O'Meara informing Martinez of his advances and that he would be resigning.
Because of the messages, O'Meara began experiencing symptoms of severe anxiety and posttraumatic stress disorder (PTSD).[2] As a result, O'Meara took 20 to 30 of her anti-anxiety medication pills in her first and only suicide attempt. On August 11, 2016, O'Meara visited her primary care provider, Dr. John Olson, who saw her for an acute crisis. Olson arranged for her to meet with a behavioral health counselor for a crisis intervention plan.
On August 10, 2016, O'Meara called Martinez to get an update on Round. Martinez informed O'Meara that Have a Heart did not fire Round. O'Meara told Martinez she felt unsafe and that she planned to hire a lawyer and report the incident to the police. Ryan Kunkel called O'Meara that same day to ask her "what did she believe had happened?" O'Meara was upset by Ryan's dismissive nature and abruptly informed him that she was going to hire a lawyer and contact the police.
Have a Heart created a "Special Incident Report" on August 10, 2016, based on Martinez and O'Meara's conversations, as well as a written statement from Round. The author of the report is unidentified and did not have direct contact or investigate the claim.
On August 12, 2016, O'Meara again inquired of Martinez about the investigation of Round. That same day, O'Meara gave a statement regarding Round to Detective Magan, the same detective that had investigated the August 7 robbery. O'Meara ultimately filed for, and was granted, a sexual assault protection order and temporary restraining order against Round.
On August 17, 2016, Martinez called O'Meara and terminated her employment. Have a Heart justified the termination in a letter stating that it was due to O'Meara missing two shifts on August 12 and 13. Have a Heart did not pay O'Meara for the period of August 9 through 17. On November 13, 2017, Martinez sent O'Meara a text message stating that Round had definitely harassed her and that Ryan Kunkel personally ordered her fired.
On November 7, 2018, O'Meara filed suit against Have a Heart, alleging claims of (1) quid pro quo sexual harassment in violation of WLAD, (2) retaliation in violation of WLAD, (3) wrongful discharge, and (4) willful withholding of wages. The claims were tried without jury.
On January 21, 2020, the trial court issued written findings of fact and conclusions of law. The court concluded that O'Meara had established all claims, and entered judgment against Have a Heart for noneconomic damages, special damages, attorney fees, and costs.
Have a Heart appeals.
Have a Heart argues that the trial court erred in determining that O'Meara's testimony was credible.[3] We disagree.
This court may not judge the credibility of witnesses or the weight of evidence. In re Dependency of A.V.D., 62 Wn.App. 562, 568, 815 P.2d 277 (1991). "Credibility determinations are solely for the trier of fact [and] cannot be reviewed on appeal." Morse v. Antonellis, 149 Wn.2d 572, 574, 70 P.3d 125 (2003).
Have a Heart asserts that O'Meara's testimony was not true, but rather was a product of her psychotic state during her interactions with Round. Have a Heart also explains O'Meara's account as "catastrophizing," a coping mechanism that O'Meara admitted to sometimes using. Finally, Have a Heart cites testimony from its expert witness regarding O'Meara's mental health diagnosis and behavior.
Have a Heart's assertions are attacks on O'Meara's credibility. The trial court permitted Have a Heart to cross-examine O'Meara. It likewise allowed Have a Heart to call its expert witness. Each of these resulted in a credibility determination from the trial court-a determination squarely within its purview. We will not disturb the trial court's credibility determination.
Have a Heart argues that the trial court erred in finding that Round was an employee of Have a Heart Compassion Care, Inc. We disagree.
We review challenged findings of fact for substantial evidence. Endicott v. Saul, 142 Wn.App. 899, 909, 176 P.3d 560 (2008). "Substantial evidence is evidence in sufficient quantum to persuade a fair-minded person of the truth of the declared premise." Ridgeview Props. v. Starbuck, 96 Wn.2d 716, 719, 638 P.2d 1231 (1982). A party challenging a finding of fact bears the burden of showing that the record does not support it. Brin v. Stutzman, 89 Wn.App. 809, 824, 951 P.2d 291 (1998).
Have a Heart relies primarily on the fact that it payed Round on a project basis, and that he was a "1099" employee rather than a "W2" employee. The trial court found these distinctions irrelevant, but instead focused on how Have a Heart portrayed Round to employees, like O'Meara, and how the employees perceived Round as having apparent authority.[4] There is substantial evidence to support this finding.
Several individuals from Have a Heart testified as to Round's employment. O'Meara stated that Round was introduced to employees as "management" and "a person with authority." O'Meara's coworker, Wells, testified that Round was the "Director of Security," trained security people, and helped Have a Heart monitor security surveillance. Wells further testified that if Round said "to do something you would do it," and that "Round may not fire [her], but he would go to Ryan [Kunkel] to do it."
Store manager Martinez stated...
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