Romulo v. Seattle Pub. Utils.

• Decision Date: 28 November 2022
• Docket Number: 82790-1-I
• Parties: MARIANO ROMULO, Appellant, v. SEATTLE PUBLIC UTILITIES, a department of the CITY OF SEATTLE, a municipality, Respondent.
• Court: Washington Court of Appeals

1

MARIANO ROMULO, Appellant, v. SEATTLE PUBLIC UTILITIES, a department of the CITY OF SEATTLE, a municipality, Respondent.

No. 82790-1-I

Court of Appeals of Washington, Division 1

November 28, 2022

UNPUBLISHED OPINION

Birk J.

Mariano Romulo sued the City of Seattle (City) after he was terminated from his employment at Seattle Public Utilities (SPU). The trial court dismissed some claims and a jury returned a verdict for the City on Romulo's remaining claims. On appeal, Romulo argues the trial court erred by dismissing his hostile work environment claim and his claim for whistleblower retaliation in violation of the Seattle Municipal Code (SMC). Romulo also argues the trial court erred in instructing the jury on his claims for wrongful discharge in violation of public policy and retaliation in violation of the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW.

We hold that the trial court's jury instructions contained a clear misstatement of the law in that they precluded Romulo from arguing that actions short of termination were adverse employment actions for purposes of his WLAD retaliation claim. We also hold that the City fails to overcome the presumption that this instructional error was prejudicial. Therefore, we remand to the trial court for further proceedings on Romulo's WLAD retaliation claim solely to the extent it is based on alleged adverse employment actions short of termination. We affirm in all other respects.

I

We are reviewing principally whether the jury instructions allowed Romulo to argue his theory of the case and whether the trial court properly granted summary judgment on certain other claims. Therefore, we present the facts in the light most favorable to Romulo. See Young v. Key Pharms, Inc. 112 Wn.2d 216, 226, 770 P.2d 182 (1989) (in reviewing a summary judgment decision, we consider the facts in the light most favorable to the nonmoving party).

Romulo was born in the Philippines and is ethnically Filipino. English is Romulo's second language, and he speaks it with an accent.

Romulo began working for the City in 1993. He joined the SPU's water department in 1995, eventually working his way up to journeyman pipefitter.

In 2007, Romulo filed a lawsuit (2007 Lawsuit) against the City alleging violations of the WLAD. Romulo's 2007 Lawsuit brought to light that Muriel Fair, a senior inspector in the SPU's Utility Service Inspections (USI) group who reported up to Vic Roberson, a division director, did not have a certification required of senior inspectors. Fair later testified that this led to her attending a meeting with Roberson and a woman-Fair did not know who she was-where the woman "was very adamant that [Fair] was not to have this job," and Fair was informed she could be terminated if she did not obtain the certification. Fair also testified that "[w]hoever was at that meeting" talked to her about Romulo's complaint.

In February 2009, Romulo and the City settled the 2007 Lawsuit. As part of the settlement, the City transferred Romulo to the position of senior inspector in the USI group in March 2009 joining Fair and another senior inspector, Bob Eastwood. Romulo was the only Filipino American in the USI group, and the only member of the group who spoke English with an accent.

Senior inspectors are responsible for the SPU's "cross-connection control program," a program required by the Washington State Department of Health (DOH). WAC 246-290-490(3)(a). A "cross-connection" is "any actual or potential physical connection between a public water system or the consumer's water system and any source of nonpotable liquid, solid, or gas" that could contaminate the potable water supply by "backflow." WAC 246-290-010(58). "Backflow" refers to "the undesirable reversal of flow of water or other substances through a cross-connection into the public water system or consumer's potable water system." WAC 246-290-010(17). The DOH requires water purveyors, such as the SPU, to implement cross-connection control programs that among other things, ensure that cross-connections are controlled by backflow preventers. WAC 246-290-490(2)(a), (f), (3)(a). The SPU has approximately 13,000 customer facilities with cross-connections. The SPU requires these facilities to, as mandated by the DOH regulations, have their backflow prevention assemblies tested annually. WAC 246-290-490(7)(b)(ii). Customers submit test reports to the SPU, which enters the reports into "XC2," the database the SPU uses to record information about its customer facilities.

The DOH deems certain cross-connections "high health hazard" cross-connections because they pose a potential public health hazard should backflow occur. See WAC 246-290-010(122). High health hazard (HHH) facilities include car washes, hospitals, mortuaries, petroleum processing plants, and wastewater treatment plants. WAC 246-290-490(4)(b)(iv) tbl. 13. The SPU has approximately 800 HHH customer facilities. Senior inspectors are responsible for ensuring the HHH facilities have achieved "premises isolation" by installing an approved backflow preventer at an appropriate location.

On a yearly basis, the SPU compiles data from XC2 and submits an "Annual Summary Report" to the DOH. The report specifies how many of the HHH facilities are being served by the SPU and how many have premises isolation. It also specifies the number of backflow prevention assemblies that were tested in the previous calendar year.

When Romulo joined the USI group in 2009, his direct supervisor was Ward Pavel, the USI manager, who reported to Roberson. Under Pavel, the senior inspectors' priority was ensuring that facilities complied with the annual backflow prevention assembly testing requirement. The SPU used a sequence of escalating form letters to enforce the requirement. The purpose of these letters was to urge facilities to maintain up-to-date testing compliance. The first three letters were generated administratively and warned of future consequences should a test not be submitted.

"Letter 4" was a 30 day water shutoff notice that would trigger involvement by a senior inspector such as Romulo, who would physically deliver it to the customer "to make sure that they're aware that they're not in compliance." Romulo testified Letter 4 "worked very well" as an enforcement mechanism. In 2014, of the 62 Letter 4s that were sent, only one customer was sent a "Letter 5," which was a 48 hour shutoff notice. "Letter 6" was a postshutoff notice advising the customer that, to restore water service, the customer had to submit all test reports to the SPU.

In his performance review for 2013, Romulo was commended for "play[ing] a key role in the development and success of the backflow assembly testing program th[at] year, and reaching our highest percentage of compliance ever." He was also commended for doing "a great job completing the [Annual Summary Report] for [the] DOH this year" and for providing "excellent customer service to internal and external customers." Pavel rated Romulo a "4" (on a scale of "1" through "5") on all but one metric, for which he rated Romulo a "3." Pavel had given Romulo similarly high marks in his past reviews.

In fall 2014, Pavel retired. With the USI manager position vacant, there was a period when Roberson wore "two hats," and the USI group reported to him. Romulo testified he approached Roberson after Pavel's retirement about getting started on the 2014 Annual Summary Report, but Roberson "kept ignoring" Romulo. Romulo testified he later obtained authorization from another manager to start work on the report.

In March 2015, the DOH sent the SPU a letter regarding the SPU's 2014 Annual Summary Report, and it addressed the letter to Romulo. The letter was also sent to Roberson via e-mail. Roberson forwarded the letter to Fair and Eastwood, but not Romulo, with the message, "Fyi-I got this today." Romulo testified that after this letter "popped up," he "no longer had access to [the DOH]," and Roberson would have had the authority to terminate Romulo's access. Romulo testified that he also got removed from working on the Annual Summary Report even though, under Pavel, he and the other senior inspectors had worked on it together. He testified that although he offered to support Eastwood and Fair with regard to the report, nobody sought his help.

Meanwhile, Roberson selected Fair to work "out of class"^[1] for 90 days in the USI manager role, which she did until December 2014. Romulo and Eastwood both applied to succeed Fair as out of class manager, and Eastwood was selected "based on a review of [Roberson] and committee." Romulo did not ever work as out of class manager, but he was one of multiple candidates selected for a first round interview for the permanent USI manager position. Romulo testified he heard nothing about the second interview, and then was told by Roberson he did not get the job because he did not have out of class manager experience. Romulo filed a formal grievance regarding this decision with the SPU human resources (HR), indicating in his cover letter that he "now [found his] job meaningless, a death to [his] dignity, self worth, family, [and] general welfare."

In May 2015, Bob Hubbert became the new USI manager, Romulo's immediate supervisor, and Roberson's direct report. Roberson had recommended Hubbert for the position.

Romulo later testified that at some point in 2015, he noticed a change in the number of Letter 4s being generated, and he wondered why. Hubbert testified he "paused" sending the escalating testing letters. Although Hubbert testified he "would have told" his staff the letters were no longer going out, he could not point to any documentation of his decision to stop sending the letters. Although he agreed...