Riccobono v. Pierce County, 20498-3-II

• Decision Date: 04 September 1998
• Docket Number: No. 20498-3-II,20498-3-II
• Parties: M. Sally RICCOBONO, Respondent/Cross-Appellant, v. PIERCE COUNTY, a political subdivision of the State of Washington; Cathy Pearsall-Stipek and "John Doe" Stipek, wife and husband; John Gamble and "Jane Doe" Gamble, husband and wife; Geri Powers and "John Doe" Powers, wife and husband; Diana Makins and "John Doe" Makins, wife and husband; and Robin Carovano and "John Doe" Carovano, wife and husband, Appellants/Cross-Respondents.
• Court: Washington Court of Appeals

Page 254

92 Wn.App. 254

966 P.2d 327

M. Sally RICCOBONO, Respondent/Cross-Appellant, v. PIERCE COUNTY, a political subdivision of the State of Washington; Cathy Pearsall-Stipek and "John Doe" Stipek wife and husband; John Gamble and "Jane Doe" Gamble husband and wife; Geri Powers and "John Doe" Powers, wife and husband; Diana Makins and "John Doe" Makins, wife and husband; and Robin Carovano and "John Doe" Carovano, wife and husband, Appellants/Cross-Respondents.

No. 20498-3-II.

Court of Appeals of Washington Division 2.

Sept. 4, 1998.

Reconsideration Denied Oct. 30, 1998.

Kari Hanson, Tacoma, Hugh Joseph McGavick, Olympia, for Respondent.

John Thomas Kugler, Fredrick Ross Burgess, Burgess, Fitzer, Leighton & Phillips Ps, Tacoma, for Appellants.

MORGAN, Judge.

In this unlawful retaliation case, the employer appeals an adverse jury verdict, and the employee cross-appeals the dismissal of certain claims. We affirm in part and reverse in part.

In 1988, Mary Sally Riccobono, a woman of Hispanic origin, was hired as a recording technician by former Pierce County Auditor Brian Sonntag. From the outset, she was both a civil service employee and a union employee. According to civil service regulations and her union's collective bargaining agreement (CBA), she could be removed, suspended, or demoted only for cause. ¹

In January 1993, Cathy Pearsall-Stipek succeeded Sonntag as county auditor. She hired John Gamble as her deputy, and Gamble became Riccobono's supervisor.

On March 19, 1993, Riccobono wrote to her union complaining about various aspects of her employment. Later, she contacted a Pierce County Equal Employment Opportunity officer and made various complaints about her working conditions.

On April 6, 1993, Gamble reprimanded Riccobono, alleging misuse of county telephones and conduct unbecoming a county employee. Two weeks later, Riccobono submitted a grievance to her union and the County. In the grievance, she asked that the County "[d]estroy letter of reprimand dated 4-6-93. Remove letter from personnel and all County files. Stop harassment and discrimination." ²

On May 28, 1993, Riccobono placed an envelope containing a copy of her grievances in the Pierce County Annex mail room, addressed to Sonntag and marked "confidential." According to Riccobono, Gamble intercepted the envelope, opened it, and read its contents. According to Gamble, he intercepted the envelope, but only by mistake; he thought it was an envelope that he himself had placed in the mailroom, and he mailed it from another location when he realized his mistake.

In May, Riccobono prepared a federal EEOC complaint. On June 7, she filed it.

On July 13, Gamble gave Riccobono a "notice of intent to suspend" for three days, alleging behavior that interfered with performance, intimidated other employees, and impaired operations. The next day, Riccobono obtained a medical leave of absence due to stress, and her leave was later extended to August 30. She returned to work on August 30 and served her three-day suspension from September 14 to 16.

On October 7, 1993, Gamble called Riccobono into his office to discuss vacation time. Riccobono said she did not have to listen and walked off the job.

Also on October 7, 1993, Riccobono requested another medical leave of absence. It was granted, and then extended from time to time over the next several months.

On June 30, 1994, Riccobono resigned from her county employment.

On November 23, 1994, Riccobono sued the Pierce County and others. Citing RCW 49.60, she alleged that after January 1, 1993, the County had wrongfully retaliated against her because she had actively opposed its attempts to discriminate against her on the basis of her national origin. Later, she amended her complaint to add claims under 42 U.S.C. § 2000e and 42 U.S.C. § 1983.

Trial began in December 1995. Riccobono called a certified public accountant, William C. Deaton, on the issue of future economic loss. In addition, she called herself, her ex-husband, a physician, two psychologists, and various other witnesses.

To compute future economic loss, Deaton calculated what Riccobono would have earned from the County had she stayed in its employ, then subtracted what he assumed she would earn by working for other employers in the future. After various adjustments not pertinent here, the result was $299,399, and that, in his opinion, was Riccobono's future economic loss.

In calculating what Riccobono would earn from other employers in the future, Deaton assumed that Riccobono would not work at all until July 1996; that she would earn $7 per hour upon returning to work; and that she would not earn more than $10 per hour during the remainder of her working life, which he thought was 12.1 years. After he had described these assumptions to the jury, the County asked leave to voir dire, which was granted. During the ensuing questioning, Deaton stated that he had no ability to determine whether Riccobono was or was not employable due to a physical, psychological or psychiatric condition. He also said that he was not a vocational rehabilitation expert, and that even if he were, he had not assessed Riccobono from that perspective. In short, he said he was not basing his assumptions on facts within his knowledge.

When the County completed its voir dire, it objected to Deaton's assumptions, claiming that he had no factual basis for making them and that there was nothing else in the record to supply such a basis. Riccobono initially responded that she had been able to work since August 1994; as her counsel put it, she had been "released by Doctor Frank or Doctor Miller in August '94 and became able to return to work, but there was no work to return to." ³ A little later, however, the trial court wondered whether Riccobono was required to establish "employability or lack of employability before damages can attach?", and asked Riccobono's counsel, "Are you representing to me you're going to tie that up at some point later on in this case[?]" ⁴ Counsel answered:

I can assure you that I will have Doctor Van Dragt back here to testify from the time he has treated Sally Riccobono, she has not been employable. I will tell [you] that [ ] I will have Doctor Frank back here to say before August 1994, between October 7 and August 1994, she was not employable, she was a basket case because of the injury she suffered here. There's about a three-month window where she had that release to return to work and got unemployment.[ [ ⁵

Counsel also stated that Riccobono's ex-husband "will testify that she was unable to do anything," ⁶ and implied that Riccobono herself would testify to the same effect.

Dr. Bryan Van Dragt, a psychologist called by Riccobono, took the stand twice, once before and once after the County had objected to Deaton's testimony. The first time, he testified that he began seeing Riccobono in November 1994. ⁷ He diagnosed dysthymia, formerly called depressive neurosis, and prescribed an intensive therapy program that helped her for two or three months. ⁸ He thought her prognosis was good if she dealt productively with past events; otherwise, it was not. He thought she would continue in therapy for at least a year or two more, ⁹ but he was not comfortable giving an opinion on whether she would recover. ¹⁰

The second time, Dr. Van Dragt testified as follows:

Q: When Sally Riccobono first came to you for treatment [in November 1994], did you have an opinion about whether or not she was psychologically competent to hold a job?

A: That opinion developed over the course of my working with her. I had no--there was nothing extreme that I observed in her behavior that would have alerted me to anything that would necessarily keep her out of a job.

But in her accounts of her feelings about employment, and there was ample cause for concern about whether or not she was able to hold a job at the time.

....

Q: During the time that Sally Riccobono has treated with you, do you have an opinion about her ability to hold a job?

A: In other words, did I have an opinion of her ability to hold a job during the time I was working with her?

Q: Let me rephrase that. As we sit here today, in your opinion, was there any time where Sally was under your treatment that she was capable of returning to work?

A: Following the intensive [therapy], she exhibited a degree of relief from both the depression and the preoccupation with the events of her recent employment. At that time, I believe it was--it was not too long after the intensive, she was employed for three days. And my observations of her performance and what was going on in her during the time that she was employed for those three days is probably my only direct experience that I could use to answer that question.[ ¹¹

Dr. Van Dragt also said he had no idea how long it would take Riccobono to get better, ¹² and that he was not comfortable prognosticating the likelihood of recovery. ¹³ On cross, he agreed that Riccobono had been drawing unemployment compensation since July 1994, and that she would have to have verified her ability to work in order to do that. ¹⁴

Dr. Phillip Frank, another clinical psychologist called by Riccobono, also took the stand twice, once before and once after the County's objection to Deaton. The first time, he said he had treated Riccobono in 1983 and 1984, then again from 1990 to 1994. He saw her on October 25, 1993, at which time, according to his notes, he thought her "[p]rognosis good, if she does not return to abusive work environment." ¹⁵ In 1994, he felt that posttraumatic stress disorder was a "[p]ossible diagnosis." ¹⁶ The second time, he said in essence that Riccobono had been unable to work from October 1993 to July 1994. He did not say that she had been unable to work after July 1994; indeed, he acknowledged that on July 14, 1994, he had certified to the Employment Security Department that she was able to work.

Dr. Christopher Miller, a family...