Subia v. Riveland

• Decision Date: 05 January 2001
• Docket Number: No. 24627-9-II.
• Citation: Subia v. Riveland, 104 Wash.App. 105, 15 P.3d 658 (Wash. App. 2001)
• Court: Washington Court of Appeals
• Parties: Geronimo SUBIA, a single person, Respondent, v. Chase RIVELAND, Secretary of the Department of Corrections, Alice Payne, Superintendent of the Women's Corrections Center, Department of Corrections, and the State of Washington, Appellant.

15 P.3d 658

104 Wash.App. 105

Geronimo SUBIA, a single person, Respondent, v. Chase RIVELAND, Secretary of the Department of Corrections, Alice Payne, Superintendent of the Women's Corrections Center, Department of Corrections, and the State of Washington, Appellant.

No. 24627-9-II.

Court of Appeals of Washington, Division 2.

January 5, 2001.

Robert W. Kosin, Asst Atty General, for Appellants.

William Michael Hanbey, Ditlevson, Rodgers, Hanbey & Dixon, Olympia, for Respondent.

HUNT, J.

The Washington Department of Corrections (DOC) appeals a jury verdict in favor of employee Geronimo Subia. Alleging race discrimination, Subia sued DOC for placing him on administrative leave pending investigation of an inmate's sexual misconduct accusations. DOC argues that the trial court erred in (1) refusing to grant it summary judgment; (2) excluding evidence that the accusing inmate had passed a polygraph examination; and (3) denying DOC's motion for judgment as a matter of law notwithstanding the verdict. Holding that it was error to have excluded the polygraph examination results as evidence of a non-discriminatory reason for placing Subia on leave, we reverse and remand for a new trial.

FACTS

I. EVENTS LEADING TO PLACING SUBIA ON LEAVE

In November 1988, DOC hired Native American Hispanic Subia to work as a corrections officer at the Washington Corrections Center for Women (WCCW). Subia's first assignment was in WCCW's "Special Needs Unit,"¹ where he guarded inmate Lori Tsim. In the summer of 1993, Tsim told Subia that Sergeant Bonnie Wieman and Investigator J.R. Hausner, husband and wife, "were trying to make her say some things about staff, and she didn't feel right." Subia relayed the information to his supervisor and to Wieman, but nothing was done.

Subia had an exemplary record. In September 1993, DOC provisionally promoted Subia to corrections sergeant.

Shortly thereafter, Tsim claimed that she had been "engaged in sexual activity with a correction[s] officer." Hausner opened an investigation,² but Tsim "denied that any sexual activity had occurred."

A month later, Tsim told Subia and another corrections officer that, during her interview with Hausner, (1) Hausner had "named... Subia as someone who was allegedly involved with ... Tsim in unacceptable conduct"; (2) she had denied Hausner's allegation; and (3) she was being "harassed" by Sergeant Wieman "over these allegations." Subia reported Tsim's statements to WCCW Associate Superintendent Gary Fleming; he also told Fleming that Hausner and Wieman blamed him (Subia) for their son's dismissal from his job as a corrections officer at WCCW. Nonetheless, Fleming referred Subia's report to Hausner for further investigation.

In early 1994, Tsim gave Wieman a four-page handwritten note claiming a sexual relationship with Subia. Wieman prepared an incident report. Tsim also told another corrections officer that she had tried to keep the relationship secret because she feared Subia's reaction. Fleming questioned Tsim, who repeated that she had been sexually involved with Subia. Tsim later passed a polygraph examination concerning her repeated sexual relations with Subia.³

Fleming met with Superintendent Payne, who reviewed Tsim's note, the incident reports, and the polygraph examination results. Payne interviewed Tsim, who again admitted having "a sexual relationship with Mr. Subia" that "had been going on for a long time." Payne knew that Tsim had previously denied having a sexual relationship with Subia, and that Tsim was housed in the Special Needs Unit.⁴

On February 10, 1994, Payne placed Subia on "administrative reassignment to ... home" with full pay and benefits, pending an investigation of Tsim's accusations, which Subia denied. The investigation failed to uncover "facts ... substantiat[ing] misconduct." Three weeks later, after being sent home, Subia returned to work, and his promotion to sergeant became permanent.

II. TRIAL

Subia sued DOC, contending that his reassignment to home violated Washington's Law Against Discrimination (WLAD), chapter 49.60 RCW. He alleged that two Caucasian male corrections "officers were accused of similar misconduct ... but were not placed on administrative leave during the period of investigation." The trial court denied DOC's motion for summary judgment and granted Subia's motion to exclude evidence that Tsim had passed the polygraph examination.

At trial, Payne testified that, in placing Subia on administrative leave: (1) she did not recall being aware of Tsim's earlier claim that Tsim was being pressured to "make a false statement"; (2) she knew that a corrections officer had denied serving as a look-out for Subia and Tsim; (3) she did not look at Subia's personnel file or speak with his supervisors to determine whether Tsim's allegations were credible; and (4) she could have assigned Hausner to investigate Tsim's accusations before placing Subia on administrative leave.

Payne further testified that it was standard practice to send an officer home, without first making a judgment on the validity of an inmate's complaint of sexual misconduct by an officer, so that DOC could conduct an unfettered investigation.⁵ She estimated that, between 1992 and 1994, 11 corrections officers had been accused of sexual misconduct, and each was placed on administrative leave. Payne denied that Subia's race played any role in her decision to place him on administrative leave. Subia testified that: (1) he believed four Caucasian officers had not been placed on administrative leave, but he did not indicate the nature of the accusations against them; (2) following his (Subia's) return to WCCW, Fleming refused to approve additional training for him; (3) he (Subia) had over 100 hours of training each year from 1994 through 1997; (4) he had received two commendations before being placed on administrative leave and seven commendations afterward; (5) he received positive employee evaluations; and (6) in late 1994, Payne and Fleming approved him for the squad leader position on WCCW's respected Emergency Response Team (ERT).

Fleming testified that his actions toward Subia were not racially motivated and that he had denied Subia's requests for additional training because there was no funding and no one available to cover for Subia. Fleming and a WCCW human resources manager testified that, from 1992 to 1995, inmates accused eight Caucasian male corrections officers of misconduct, four of which were sexual misconduct accusations. DOC had placed three of the officers on administrative leave;⁶ but it had not placed on administrative leave one Caucasian officer accused of sexual misconduct.⁷ Inmates had accused two racial-minority corrections officers of sexual misconduct, and DOC had placed both on administrative leave.

The jury found that race was a substantial factor in DOC's decision to place Subia on administrative leave and awarded him $50,000. The trial court entered judgment and imposed costs and attorney fees of $22,001.

DOC moved for judgment as a matter of law. See CR 50(b). The trial court denied the motion, stating:

I think the record will reveal something more than a scintilla of evidence from which the verdict could be found. Even if I found the preponderance of the evidence is against the jury verdict, I would not vacate it or throw it out because I believe the test of substantial evidence. Substantial evidence can be more than a preponderance. In this case, it is a scintilla, and I think that can be found in the record.

The trial court also noted that there had been significant credibility issues during the trial.

ANALYSIS

I. WASHINGTON'S LAW AGAINST DISCRIMINATION (WLAD)

WLAD prohibits discrimination "against any person in compensation or in other terms or conditions of employment because of ... race." RCW 49.60.180(3). Washington courts analyze racial discrimination claims using a modified burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), under which the plaintiff worker bears the initial burden of proving a prima facie case.⁸Marquis v. City of Spokane, 130 Wash.2d 97, 113, 922 P.2d 43 (1996). If the worker successfully establishes a prima facie case, the burden shifts to the employer to produce "a legitimate non-discriminatory reason for the challenged act." Fell v. Spokane Transit Auth., 128 Wash.2d 618, 634, 911 P.2d 1319 (1996). If the plaintiff has established a prima facie case of discrimination and has also submitted "sufficient evidence" to show that the employer's asserted nondiscriminatory reason is pretext, the trier of fact may then find or infer unlawful discrimination without additional independent evidence of discrimination. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 2109, 147 L.Ed.2d 105 (2000).

A. SUBIA'S PRIMA FACIE CASE

Here, Subia established a prima facie case of disparate treatment by showing that he, a Native American-Hispanic corrections officer, with an otherwise exemplary record, had been placed on administrative leave pending an investigation of sexual misconduct; in contrast, at least one Caucasian officer accused of sexual misconduct was not placed on administrative leave.

Subia presented the following evidence to prove that DOC's reliance on Tsim's accusations was pretext for discriminatory action against him. Subia showed that Tsim's allegations may have been three years old;⁹ Tsim had controverted herself in allegedly accusing Subia of sexual misconduct; and, therefore, Tsim's most recent allegations were also likely to be false. Subia created the impression that DOC had disciplined an exemplary employee on the shaky word of an inmate complainant of dubious credibility; therefore, the jury could have concluded that DOC's real reason for Subia's administrative reassignment was race, especially when compared to DOC's treatment of a similarly accused Caucasian.

B. DOC...