Christopher Boyd v. D.s.h.s., State Of Wa ( 2015 )

FILED
COURT OF APPEALS
DIVISION II
2015 FEB - 3 8 58
STATE OF WASHINGTON
IN THE COURT OF APPEALS OF THE STATE ON
DIVISION II
CHRISTOPHER BOYD, No. 45174 -3 -II
Respondent,
v.
STATE OF WASHINGTON; DEPARTMENT UNPUBLISHED OPINION
OF SOCIAL AND HEALTH SERVICES; and
WESTERN STATE HOSPTIAL,
Appellants.
Melnick, J. — Western State Hospital (WSH) appeals the jury verdict and judgment against
it in Christopher Boyd' s employment retaliation case. It argues that the trial court erred when it
denied WSH' s CR 50 motion because some of the actions Boyd relied on were not adverse
employment actions and there was no causal connection between Boyd' s actions and the WSH' s
adverse employment actions. WSH also argues that the trial court erred by allowing Boyd to base
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bias theory. We hold that Boyd presented substantial
pawl
liability on the cat' s or subordinate
evidence of adverse employment actions and a causal connection to support a verdict in his favor.
The trial court correctly allowed Boyd to rely on the cat' s paw theory where he presented evidence
that a supervisor' s animus was a substantial factor in WSH' s decision to discipline him. We affirm
and award Boyd attorney fees on appeal.
FACTS
I. SEXUAL HARASSMENT ALLEGATIONS
Boyd is a registered nurse at WSH. Patricia Maddox was a supervisor in the ward adjacent
to Boyd' s ward. She would cover Boyd' s ward when his ward supervisor was absent. Initially,
Maddox treated Boyd affectionately. She bought him t -shirts from her vacations. She would
corner Boyd in the nurse' s office and sit extremely close to him or position herself in a suggestive
1 Under the " cat' s paw" theory, the animus of a non -decision -maker who has a singular influence
may be imputed to the decision- maker. See, e. g., Staub v. Proctor Hosp., 562 U.S. 411, 131 S. Ct.
1186, 179 L. Ed. 2d 144 ( 2011).
The term " cat' s paw" originated Monkey and the Cat," by
in the fable, " The
Jean de La Fontaine. As told in the fable, the monkey wanted some chestnuts that
were roasting in a fire. Unwilling to burn himself in the fire, the monkey convinced
the cat to retrieve the chestnuts for him. As the cat carefully scooped the chestnuts
from the fire with his paw, the monkey gobbled them up. By the time the serving
wench caught the two thieves, no chestnuts were left for the unhappy cat.
Julie M. Covel, The Supreme Court Writes A Fractured Fable ofthe Cat's Paw Theory in Staub v.
Proctor Hospital [ Staub v. Proctor Hospital, 131 S. Ct. 1186 (2011)J, 51 Washburn L.J. 159 ( 2011).
In the workplace, the cat represents an unbiased decision -maker who disciplines an employee
unknowingly due to a supervisor' s bias, represented by the monkey. Edward Phillips, The Law at
Work: Staub v. Proctor Hospital: The Cat's Paw Theory Gets Its Claws Sharpened, 47 Tenn. B. J.
June, 2011), at 21.
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manner. Maddox referred to Boyd as "[ h] er penis." 3 Report of Proceedings ( RP) at 257. Maddox
also made suggestive comments to Boyd while he installed heaters at her house.
In April 2009, Boyd confronted Maddox and told her to leave him alone. Maddox
responded by telling Boyd that if he told anyone about the harassment, she would " make sure that
he] can' t work in any of the 50 states." 8 RP at 983. After the confrontation, Maddox stopped
acting affectionate toward Boyd and became hostile. Boyd did not immediately inform WSH of
Maddox' s behavior.
II. INVESTIGATIONS AGAINST BOYD
On December 26, 2009, Boyd delayed assessing a patient. Rod Bagsic, Boyd' s co- worker,
requested a patient assessment from Boyd at about 1: 00 A. M. Boyd did not arrive immediately,
and Bagsic called again. Boyd answered the phone and impersonated another employee. Bagsic
asked where Boyd was, and Boyd left at that point to assess the patient. Bagsic gave the patient
the requested medicine at 2: 20 A. M.
Staff reported the incident to Maddox, who reported it to her supervisor. The supervisor
directed Paula Cook -Gomez, Boyd' s ward supervisor, to investigate the incident. Both Cook -
Gomez and Maddox collected witness statements and conducted interviews regarding the incident.
During the investigation, Cook -Gomez overheard Boyd make statements that she
perceived as threatening. Boyd had been discussing assault rifles with co- workers and the best
way to burn a woman' s body. He also demonstrated how to use a chef' s knife in an allegedly
threatening manner. Another staff member told Cook -Gomez that Boyd said, "[ T] hey may fire
me[,] but they will sure as hell remember me." Ex. 94.
WSH assigned Maddox to investigate Boyd' s alleged threats. On January 21, 2010, as a
result of the ongoing investigation, WSH reassigned Boyd to another ward. He was not allowed
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patient interaction during his reassignment. WSH also reported Boyd' s conduct to both the
Department of Health and the police.
During an e -mail exchange on January 22, 2010, Maddox told Cook -Gomez " I don' t trust
Boyd] about anything as he is known to lie." 3 RP at 349. On January 26, 2010, Boyd told
Maddox' s supervisor that Maddox' s presence at his disciplinary meeting made him uncomfortable.
The supervisor e- mailed a Human Resources representative, who stated that Maddox could still
attend the meeting and WSH would explain her presence as a training exercise.
At the disciplinary meeting, the witness who overheard Boyd say, "[ T] hey may fire me,
but they will sure as hell remember me," told Maddox that Boyd' s comment related to apple cider
and she did not perceive it as threatening. Ex. 23. Maddox discussed the witness' s " apple cider"
explanation with Human Resources but did not include it in the report she provided to WSH' s
management. 3 RP at 358 -59. Boyd asserted that his other comments were not meant as threats.
Instead, he said they related to conversations about a television show, military training, and being
careful with a knife while cooking.
Cook -Gomez and Maddox reported their findings to the Management Resource Team.2
The Management Resource Team reviewed the investigations and decided to present both matters
to the Chief Executive Officer (CEO) and recommend that Boyd be disciplined.
In October 2010, the CEO sent Boyd a " Notice of Intent to Discipline." Ex. 116. In
December 2010, Boyd' s attorney sent a letter to WSH regarding his sexual harassment allegations
against Maddox. At that time, WSH decided to have David Rivera re- investigate all of the
allegations against Boyd. First, Rivera limited his investigation of Boyd' s alleged threats to
2 The . Management Resource Team includes Human Resources representatives, an incident
management representative, the nurse executive, and sometimes nursing supervisors.
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Boyd' s statement " they may fire me, but they will sure as hell remember me. "3 10 RP at 1426 -27.
After Rivera learned that the witness recanted her statement, Rivera closed his investigation
without examining any of Boyd' s other allegedly threatening statements.
Then, Rivera re- investigated the allegations that Boyd had failed to assess a patient. In
exploring this matter, Rivera relied, in part, on the statements and interviews prepared by Maddox
as well as his own interviews with witnesses. Rivera initially had difficulty scheduling an
interview with Boyd. WSH ultimately decided to not re- interview Boyd. It relied on the interview
conducted by Cook -Gomez and Maddox. Based on Rivera' s findings, WSH concluded that the
original investigation was fair.
On January 5, 2012, Boyd received a letter from WSH' s CEO suspending him for two
weeks without pay for failing to assess a patient and for impersonating a co- worker. On January
30, 2012, WSH' s CEO issued Boyd a written reprimand for making threatening comments. The
reprimand relied on Maddox' s report. The reprimand listed Boyd' s alleged comments, including
statements about the damage a chef s knife could cause, how to burn a woman' s body so it would
be unidentifiable, the use of sniper rifles and AK -47s, and how WSH may fire him but it will
remember him. WSH forwarded the reprimand to Boyd' s new supervisor. Although other
employees participated in the conversations about guns and burning bodies, only Boyd was
disciplined.
III. PROCEDURE
On March 19, 2012, Boyd filed a complaint against WSH under the Washington Law
Against Discrimination (WLAD), chapter 49. 60 RCW, alleging sexual harassment and retaliation.
3
Initially Rivera misspoke when he testified as to what another LRN said, but corrected himself.
This quote reflects his correction.
45174 -3 -II
CP at 1. WSH moved for summary judgment. It argued that both the sexual harassment and
retaliation claims should be dismissed. The trial court granted WSH' s motion for summary
judgment regarding the sexual harassment claim but denied the motion regarding the retaliation
claim.
The case proceeded to jury trial and at the close of Boyd' s case, WSH moved for judgment
as a matter of law under CR 50. It argued that four of the bases for adverse employment actions —
the investigation of Boyd' s threatening comments, his written reprimand, and the two transfers to
different wards —were not actionable. It also argued that Boyd failed to show a causal link
between the protected activity and any adverse employment actions. Finally, it argued that it had
non -retaliatory reasons for investigating Boyd. The trial court denied WSH' s CR 50 motion.
The trial court gave the following " adverse employment action" instruction over WSH' s
obj ection:
An adverse employment action is defined as an employment action or
decision that constitutes an adverse change in the circumstances of employment.
An employment action is adverse if it is harmful to the point that it would dissuade
a reasonable employee from making complaints of sexual harassment or retaliation.
An adverse employment action must involve a change in employment conditions
that is more than an inconvenience or alteration of job responsibilities.
Clerk' s Papers ( CP) at 2160.
The trial court gave the following " cat' s paw" instruction over WSH' s objection:
If a supervisor performs an act motivated by retaliatory animus that is
intended by the supervisor to cause an adverse, employment action, and if that act
is relied on by the employer and is a substantial factor in the ultimate employment
action, then the employer is liable for retaliation.
CP at 2162.
The trial court rejected WSH' s 17- question proposed special verdict form, which listed
several different alleged adverse employment actions. Instead, the trial court used a special verdict
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form that asked whether " the defendant retaliate[ d] against the plaintiff," and, if so, what is the
total amount of damages. CP at 2169 -70.
The jury found that WSH had retaliated against Boyd and awarded him $ 173, 000. WSH
appeals.
ANALYSIS
I. STANDARD OF REVIEW
We review a trial court' s denial of a CR 50 motion for judgment as a matter of law de novo,
engaging in the same inquiry as the trial court. Schmidt v. Coogan, 162 Wn.2d 488, 491, 173 P. 3d
273 ( 2007). Judgment as a matter of law is proper only when, viewing the evidence in the light
most favorable to the nonmoving party, substantial evidence cannot support a verdict for the
nonmoving party. Schmidt, 162 Wn.2d at 491, 493.
We review alleged errors of law in jury instructions de novo. Blaney v. Int' l Ass 'n of
Machinists & Aerospace Workers, Dist. No. 160, 151 Wn.2d 203, 210, 87 P. 3d 757 ( 2004). Jury
instructions are proper when they permit the parties to argue their theories of the case, do not
mislead the jury, and properly inform the jury of applicable law. Hue v. Farmboy Spray Co., 127
Wn.2d 67, 92, 896 P. 2d 682 ( 1995).
To establish a prima facie case of retaliation for a protected activity under the WLAD4, an
employee must show that ( 1) he engaged in a statutorily protected activity, ( 2) the employer took
an adverse employment action against the employee, and ( 3) there is a causal connection between
4
It is an unfair practice for any employer, employment agency, labor union, or other
person to discharge, expel, or otherwise discriminate against any person because he
or she has opposed any practices forbidden by this chapter, or because he or she has
filed a charge, testified, or assisted in any proceeding under this chapter.
RCW 49. 60. 210( 1).
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the employee' s activity and the employer' s adverse action. Estevez v. Faculty Club of Univ. of
Wash., 129 Wn. App. 774, 797, 120 P. 3d 579 ( 2005); Scrivener v. Clark Coll., 181 Wn.2d 439,
446, 334 P. 3d 541 ( 2014). If the employee establishes a prima facie case, then the employer may
rebut the claim by presenting evidence of a legitimate nondiscriminatory reason for the adverse
action. Estevez, 129 Wn. App. at 797 -98; Scrivener, 181 Wn.2d at 446. The burden then shifts
back to the employee to show that the employer' s reason is pretext. Estevez, 129 Wn. App. at 798;
Scrivener, 181 Wn.2d at 446. Once " the record contains reasonable but competing inferences of
both discrimination and nondiscrimination, ` it is the jury' s task to choose between such
inferences. ' Estevez, 129 Wn. App. at 798 ( quoting Hill v. BTCIIncome Fund -I, 144 Wn.2d 172,
186, 23 P. 3d 440 ( 2001)) ( other citations omitted). Here, WSH argues that Boyd failed to prove
that WSH took an adverse employment action and, even if he had shown adverse employment
actions, there is no causal connection between Boyd' s protected activities and any adverse
employment actions.
II. ADVERSE EMPLOYMENT ACTIONS
First, WSH argues that the trial court erred when it failed to limit Boyd' s claimed adverse
employment actions. Specifically, it asserts that the trial court erred when it denied WSH' s CR 50
motion arguing that some of the retaliatory actions Boyd alleged were not adverse employment
actions, gave an adverse employment action jury instruction that was contrary to law, and failed
to give WSH' s proposed verdict form.
A. CR 50 Motion
WSH argues that the trial court erred when it denied WSH' s CR 50 motion to dismiss
because Boyd failed to prove that WSH took an adverse employment action against him. We
disagree.
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An adverse employment action involves a change in employment that is more than an
inconvenience or alteration of one' s job responsibilities. Alonso v. Qwest Commc 'ns Co., LLC,
178 Wn. App. 734, 746, 315 P. 3d 610 ( 2013). It includes a demotion or adverse transfer, or a
hostile work environment. Kirby v. City of Tacoma, 124 Wn. App. 454, 465, 98 P. 3d 827 ( 2004
quoting Robel v. Roundup Corp., 148 Wn.2d 35, 74 n. 24, 59 P. 3d 611 ( 2002)). The employee
must show that a reasonable employee would have found the challenged action materially adverse,
meaning that it would have "' dissuaded a reasonable worker from making or supporting a charge
of discrimination. "' Burlington N. & Santa Fe Ry. Co. v. White, 548 U. S. 53, 68, 126 S. Ct. 2405,
165 L. Ed. 2d 345 ( 2006) ( quoting Rochon v. Gonzales, 438 F. 3d 1211, 1219 ( 2006)). " Whether a
particular reassignment is materially adverse depends upon the circumstances of the particular
case, and ` should be judged from the perspective of a reasonable person in the plaintiff' s
position. "' Tyner v. State, 137 Wn. App. 545, 565, 154 P. 3d 920 ( 2007) ( quoting Burlington N. &
Santa Fe Ry. Co., 548 U. S. at 71).
The trial court correctly declined to determine as a matter of law that WSH' s actions were
not adverse employment actions. Washington courts look to .federal antidiscrimination law to
construe the WLAD and we are " free to adopt th[ e] se theories" which further the purposes of our
state statute. Kumar v. Gate Gourmet Inc., 180 Wn.2d 481, 491, 325 P. 3d 193 ( 2014) ( quoting
Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 361 - 62, 753 P. 2d 517 ( 1988)). Federal
law provides that context matters in analyzing the significance of any given act of retaliation
because "` [ a] n act that would be immaterial in some situations is material in others. "' Burlington
N. & Santa Fe Ry Co., 548 U.S. at 69 ( quoting Wash. v. Illinois Dep' t ofRevenue, 420 F. 3d 658,
661 ( 7th Cir. 2005)). Accordingly, whether a particular action would be viewed as adverse by a
reasonable employee is a question of fact appropriate for a jury. See Burlington, 548 U. S. at 71-
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73; McArdle v. Dell Products, L.P., 293 F. Appx. 331, 337 ( 5th Cir. 2008) ( " Whether a reasonable
employee would view the challenged action as materially adverse involves questions of fact
generally left for a jury to decide. ").
Here, viewing the evidence in the light most favorable to Boyd, there is substantial
evidence WSH engaged in adverse employment actions. See Schmidt, 162 Wn.2d at 491., 493.
Boyd presented evidence that WSH suspended him for two weeks without pay, issued a written
reprimand that contained a detailed list of his alleged threatening comments and disseminated it to
his supervisor, removed Boyd from his ward and from patient interaction, and reported him to the
Department of Health and the police. WSH argues that some of these actions were not adverse
employment actions; rather, they were " legitimate business decisions" that were disciplinary or
investigatory in nature. Appellant' s Br. at 24 -25 ( citing Kirby, 124 Wn. App. at 465 ( employment
events that were disciplinary or investigatory in nature did not constitute adverse employment
actions where there were mere inconveniences that did not have a tangible impact on the plaintiff' s
workload or pay)). We express no opinion as to whether these employment actions, taken
individually, constituted adverse employment actions as a matter of law. However, taken in
context, a reasonable jury could find that these actions, taken together, were materially adverse.
Boyd presented substantial evidence for the jury to find that these actions would have dissuaded a
reasonable worker from making a discrimination charge. See Burlington, 548 U.S. at 68.
B. Jury Instruction
WSH further argues that the trial court'.s adverse employment action jury instruction was
contrary to law. The trial court' s instruction was:
An adverse employment action is defined as an employment action or
decision that constitutes an adverse change in the circumstances of employment.
An employment action is adverse if it is harmful to the point that it would dissuade
a reasonable employee from making complaints of sexual harassment or retaliation.
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An adverse employment action must involve a change in employment conditions
that is more than an inconvenience or alteration ofjob responsibilities.
CP at 2160.. At trial, WSH objected to the instruction because the second sentence is derived from
federal case law.
The trial court used language from the Supreme Court' s opinion in Burlington, 548 U. S.
53, a Title VII retaliation case, in the adverse employment action instruction. The Burlington court
held that " a plaintiff must show that a reasonable employee would have found the challenged
action materially adverse, ` which in this context means it well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination. "' 548 U.S. at 68 ( quoting Rochon,
438 F. 3d at 1219) ( citations omitted). Washington courts look to federal case law interpreting
Title VII to guide interpretations of the WLAD. Kumar, 180 Wn.2d at 491; see also Tyner, 137
Wn. App. at 565 ( citing Burlington, 548 U. S. at 68); Kirby, 124 Wn. App. at 465 ( citing federal
cases as guidance for determining whether an event is an adverse employment action). Therefore,
the trial court properly incorporated the Burlington language into its instruction and did not err.
C. Verdict Form
Next, WSH argues that the trial court erred when it used a simpler verdict form and not
WSH' s 17- question proposed verdict form.5 This argument is based on WSH' s assertion that the
trial court erred by failing to limit the alleged adverse employment actions presented to the jury.
WSH cites Davis v. Microsoft Corp., 149 Wn.2d 521, 539, 70 P. 3d 126 ( 2003), to support its
argument. The Davis court stated that " where a general verdict is rendered in a multitheory case
and one of the theories is later invalidated, remand must be granted if the defendant purposed a
5 Boyd argues that WSH did not preserve an objection to the verdict form. We disagree. Although
WSH ultimately accepted the trial court' s verdict form, this was after WSH proposed and argued
for a different verdict form.
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clarifying special verdict form." 149 Wn.2d at 539. But, as discussed above, the trial court did
not err when it allowed Boyd to present all of his alleged adverse employment actions to the jury.
Therefore, Davis is inapposite and this argument fails.
Further, a trial court' s refusal to submit a special verdict form based on the facts of that
case is reviewed for abuse of discretion. State v. Lucky, 128 Wn.2d 727, 731, 912 P. 2d 483 ( 1996),
overruled on other grounds by State v. Berlin, 133 Wn.2d 541, 947 P. 2d 700 ( 1997). A trial court
abuses its discretion when its discretionary decision is " manifestly unreasonable or based upon
untenable grounds or reasons." Davis v. Globe Mach. Mfg. Co., 102 Wn.2d 68, 77, 684 P. 2d 6921984) ( citing State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P. 2d 775 ( 1971)). Here, the
trial court stated it was " concerned" the special verdict form had " too many questions, that it' s
broken down too much." 12 RP at 1828. The trial court made it clear that, in light of the facts of
this case, WSH' s proposed jury form was not " something that a jury could work with." 12 RP at
1832. WSH' s proposed 17- question special verdict form is cumulative and confusing. Many of
the questions overlap with the jury instructions provided and require the jurors to answer the
questions out of order. Therefore, the trial court' s decision to not give WSH' s special verdict form
was reasonable and exercised on tenable grounds. The trial court did not abuse its discretion.
III. CAUSAL CONNECTION
WSH next argues that the trial court erred when it denied WSH' s CR 50 motion because
Boyd failed to provide evidence establishing a causal connection between his activity and WSH' s
adverse employment actions. WSH asserts that there was no evidence that the decision makers
were aware of the sexual harassment claims until after WSH began the investigations against Boyd
and there was no evidence that Maddox was involved with the decision to discipline Boyd.
Although WSH is correct that it did not have notice of Boyd' s sexual harassment claim until after
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it had started the investigations into Boyd' s conduct, the adverse employment acts commenced
after Maddox threatened Boyd to not report her harassment of him. He presented evidence that
Maddox' s actions were a substantial factor in the investigations and resulting discipline. Rivera' s
investigation did not break the causal connection between her animus and the adverse employment
actions.
A] plaintiff bringing suit under RCW 49. 60. 210 must prove causation by showing that
retaliation was a substantial factor motivating the adverse employment decision." Allison v. Hous.
Auth. of City of Seattle, 118 Wn.2d 79, 96, 821 P. 2d 34 ( 1991). In Staub v. Proctor Hospital, 562
U. S. 411, 131 S. Ct. 1186, 1191, 179 L. Ed. 2d 144 ( 2011), the Supreme Court confronted the
problem where the official who made the decision to take an adverse employment action " has no
discriminatory animus but is influenced by previous company action that is the product of a like
animus in someone else." There, the plaintiff, a member of the Army Reserve, was fired and sued
his employer under the Uniformed Services Employment and Reemployment Rights Act
USERRA). Staub, 131 S. Ct. at 1190. He alleged that his supervisor' s antimilitary animus
influenced his employer' s decision to terminate him. Staub, 131 S. Ct. at 1190. The Court held
that " if a supervisor performs an act motivated by antimilitary animus that is intended by the
supervisor to cause an adverse employment action, and if that act is a proximate cause of the
ultimate employment action, then the employer is liable under USERRA." 6 Staub, 131 S. Ct. at
1194 ( footnotes omitted).
The Court also stated that an independent investigation does not necessarily relieve the
employer of liability for an adverse employment action. Staub, 131 S. Ct. at 1193. "[ I] f the
6 We applied subordinate bias liability as it is articulated in Staub in City of Vancouver v. Wash.
Pub. Emp' t Relations Comm' n, 180 Wn. App. 333, 325 P. 3d 213 ( 2014).
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employer' s investigation results in an adverse action for reasons unrelated to the supervisor' s
original biased action ... then the employer will not be liable." Staub, 131 S. Ct. at 1193. " But
if the independent investigation relies on facts provided by the biased supervisor — as is necessary
in any case of cat' s -paw liability —then the employer ( either directly or through the ultimate
decision [ ] maker) will have effectively delegated the factfinding portion of the investigation to
the biased supervisor." Staub, 131 S. Ct. at 1193.
Here, Boyd presented evidence of Maddox' s animus. He testified that, after he told her to
stop harassing him she became hostile and threatened to " make sure [ he] can' t work in any of the
50 states." 8 RP at 983. Subsequently, Maddox involved herself in investigating the complaints
against Boyd. Although Cook -Gomez was assigned to investigate Boyd' s failure to assess the
patient, Maddox collected witness statements and conducted some of the interviews. WSH
assigned Maddox to investigate Boyd' s threatening comments. Maddox wrote in an e -mail to
Cook -Gomez that "[ she didn' t] trust [ Boyd] about anything as he is known to lie." 3 RP at 349.
WSH relied on Maddox' s investigation and factfinding in disciplining Boyd. Therefore, a jury
could find that Maddox' s acts were a proximate cause of the adverse employment actions.
Rivera' s additional investigations are not supervening causes. Rivera' s re- investigation of
Boyd' s failure to assess the patient•relied on facts provided by the biased supervisor, Maddox. At
the time of Rivera' s investigation, some witnesses could not clearly recall the events and instead
relied on the statements collected by and interviews Maddox conducted. And, Rivera did not re-
investigate Boyd' s threatening comments. Although Maddox' s report included several different
comments and the CEO' s reprimand mentioned the same comments, Rivera only investigated one
may fire but they will sure as hell remember me." 10 RP at
of the alleged comments — " they me,
1426. He stopped his investigation after learning that the witness who reported this statement had
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recanted. The trial court did not err when it denied WSH' s CR 50 motion on a lack of a causal
connection.
IV. " CAT' S PAW" INSTRUCTION
Next, WSH argues that the trial court erred when it gave the cat' s paw instruction. It
contends that Maddox did not act with discriminatory animus, Rivera' s investigation was a
supervening cause of any animus, and the instruction was inconsistent with the jury instruction on
retaliation. We disagree.
First, Boyd presented evidence that Maddox acted out of animus. Before the investigations
began, she told Boyd that she would " make sure [ he] can' t work in any of the 50 states" after he
rejected her advances. 8 RP at 983. She also told Cook -Gomez, the other investigator, that she
knew Boyd was a liar. Maddox then reported Boyd' s conduct to management and assisted with
fact -gathering for both investigations against Boyd. WSH relied on those facts in determining
Boyd' s discipline.
Second, Rivera' s investigation was not a supervening cause. His review of Cook -Gomez' s
investigation relied on information Maddox prepared. And he did not complete a review of
Maddox' s investigation. Instead, he stopped his review after determining that a witness to one of
the alleged threats had recanted. Despite this lack of an independent investigation, WSH
reprimanded Boyd for all of his alleged threatening comments.
Third, the " cat' s paw" instruction was not inconsistent with the substantial factor
requirement. The " cat' s paw" instruction read, " If a supervisor performs an act motivated by
retaliatory animus that is intended by the supervisor to cause an adverse employment action, and
if that act is relied on by the employer and is a substantial factor in the ultimate employment action,
then the employer is liable for retaliation." CP at 2162. This instruction is consistent with the law
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on subordinate bias liability. "[ I] f a supervisor performs an act motivated by ... animus that is
intended by the supervisor to cause an adverse employment action, and if that act is a proximate
cause of the ultimate employment action, then the employer is liable." Staub, 131 S. Ct. at 1194
footnotes omitted). Under Washington law, in order for the act to be a proximate cause, it must
be a substantial factor. City of Vancouver v. Wash. Pub. Emp' t Relations Comm' n, 180 Wn. App.
333, 356, 325 P. 3d 213 ( 2014) ( " a complainant seeking to use the subordinate bias theory of
liability must show that the subordinate' s animus was a substantial factor in the decision "). The
trial court' s instruction properly informed the jury of the law. It required the plaintiff to prove that
the supervisor' s animus was a substantial factor in the decision. The trial court did not err when
it gave the cat' s paw instruction.
V. PRETEXT
Finally, Boyd met his burden of showing that WSH' s reasons for disciplining him were
pretext. See Estevez, 129 Wn. App. at 798. WSH presented nondiscriminatory reasons for
disciplining Boyd: he failed to timely assess a patient and he made inappropriate comments. Boyd
then presented evidence that the reasons were pretext. Maddox told Boyd she would retaliate, he
was the only employee disciplined for inappropriate comments even though other employees were
engaged in the conversations, and WSH disciplined him for making threatening statements even
though it had notice of Maddox' s bias and failed to conduct a thorough independent investigation.
Once " the record contains reasonable but competing inferences of both discrimination and
nondiscrimination, ` it is the jury' s task to choose between such inferences. "' Estevez, 129 Wn.
App. at 798 ( quoting Hill, 144 Wn.2d at 186). Juries are empaneled to determine credibility of
witnesses and to weigh evidence. We do not disturb those on appeal. State v. Camarillo, 115
Wn. 2d 60, 71, 794 P. 2d 850 ( 1990). Here, the jury chose to believe Boyd. We affirm.
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VI. ATTORNEY FEES
Boyd requests attorney fees under RAP 18. 1 and RCW 49. 60. 030. RCW 49. 60. 030( 2)
states,
Any person deeming himself or herself injured by any act in violation of this
chapter shall have a civil action in a court of competent jurisdiction to enjoin further
violations, or to recover the actual damages sustained by the person, or both,
together with the cost of suit including reasonable attorneys' fees.
Because WSH' s appeal fails, we award Boyd attorney fees on appeal. Martini v. Boeing Co., 137
Wn.2d 357, 377, 971 P. 2d 45 ( 1999).
We affirm and award Boyd attorney fees on appeal.
A majority of the panel having determined that this opinion will not be printed in the
Washington Appellate Reports, but will be filed for public record in accordance with RCW 2. 06. 040,
it is so ordered.
We concur:
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