Allread v. City of Burien

1

CAROL ALLREAD, an individual, Appellant, v. CITY OF BURIEN, a Washington City, Respondent

MARY EIDMANN, Plaintiff.

No. 84783-0-I

Court of Appeals of Washington, Division 1

January 16, 2024

UNPUBLISHED OPINION

Dwyer J.

Following the termination of her employment with the City of Burien (the City), Carol Allread filed a complaint for damages against the City alleging interference and retaliation in violation of Washington's Paid Family and Medical Leave Act (PFMLA)^[1] and wrongful discharge in violation of public policy. A jury returned a verdict in favor of the City on each of Allread's claims. Allread thereafter filed a motion for a new trial, which the trial court denied.

Allread now appeals from the trial court's order denying her motion for a new trial. Allread seeks our review of several discretionary trial court rulings and challenges the trial court's denial of her motion for a directed verdict on her claim of PFMLA retaliation. She also contends that the trial court erroneously denied her motion for a new trial. Finding no error in the challenged rulings, we affirm.

I

Carol Allread worked for the City of Burien as executive assistant to the city manager for over eight years. Allread used occasional family leave throughout her employment with the City in order to attend medical and therapy appointments for her young adult son. She worked for multiple city managers during her tenure, the last of whom was Brian Wilson. On July 24, 2020, Wilson presented Allread with a proposed separation agreement and informed Allread that her employment with the City was being terminated.

In May 2022, Allread filed an amended complaint for damages against the City, alleging that her employment was unlawfully terminated due to her use of protected family leave. The complaint alleged that, in the two years preceding the termination, Wilson had reacted angrily and dismissively in response to Allread's requests to utilize PFMLA leave. The complaint further alleged that, on June 24, 2020, Allread informed Wilson that an incident had occurred that would require her to use additional family leave. One month later on July 24, 2020, Allread's employment with the City was terminated.

Based on these events, Allread alleged that the City had violated the PFMLA "when it retaliated against [her] for taking leave, and, when on notice of [her] intent to take additional protected leave," it "interfered with her rights by firing her and considering her leave as a negative factor in the decision, and threatening her with retaliation if she made a civil rights complaint." In addition to asserting that the City had violated the PFMLA, Allread alleged that the termination of her employment constituted wrongful discharge in violation of public policy.

In response to Allread's complaint, the City acknowledged that Allread had been granted leave to care for her son. The City denied, however, that Allread had faced retaliation or that her employment had been terminated due to her request for, or her utilization of, such leave. The City acknowledged that it had met with Allread on July 24, 2020. However, it characterized Allread's "separation from the City [as] a no-cause layoff related to the COVID-19 pandemic."

Both the pretrial and trial periods were characterized by numerous motions in limine and extensive briefing regarding the admissibility of particular witness testimony. In one such motion, the City sought to exclude the testimony of former City employee Mary Eidmann. Eidmann had been named as co-plaintiff, along with Allread, in the initial complaint filed in this matter, although she had therein asserted different claims. While Allread asserted that the City had violated the PFMLA due to her use of family leave to care for her son, Eidmann alleged that the City had violated the Washington Law Against Discrimination^[2] by failing to accommodate her disability and retaliating against her for requesting related accommodations. Like Allread, Eidmann had additionally asserted that the City had violated the PFMLA however, Eidmann alleged that the City denied leave requests related to her own medical needs, not to those of a family member. Eidmann had additionally asserted, in the initial complaint, that she was constructively discharged her due to her disability.

Upon motion by the City, the trial court had severed Allread's and Eidmann's actions. In so ruling, the court had reasoned that,

[a]side from the commonality of employer and nature of complaint, the claims by these two Plaintiffs have little overlap. Ms. Allread's claims revolve around whether the decision to eliminate the position Ms. Allread fulfilled arose from discrimination and retaliation or the need by the City of Burien to address emergent budget crises related to the COVID-19 pandemic. Ms. Eidmann's claims revolve around the scope of her disability and whether reasonable accommodations were responsively provided by the City of Burien. The focus of each of these two claims, once one drills down past the general commonalities, is quite different.

Thus, the court had ruled that

[a]llowing Ms. Eidmann and Ms. Allread to present their claims before the same fact finder will likely send the message that the City of Burien, by dint of facing discrimination claims by not one but two Plaintiffs, must have committed wrongdoing. The risk of that potential prejudice outweighs the benefit of efficiency in this particular case.

Subsequent to the severance of Allread's and Eidmann's actions, the court, in this matter, granted the City's motion in limine to exclude Eidmann's testimony at trial. Allread thereafter requested "clarification" of the court's order, explaining that she was seeking to introduce testimony from Eidmann regarding "the treatment that she experienced during her employment," including that "she felt discriminated against because of a need for family medical leave." Consistent with the prior severance ruling, the trial court excluded the proffered testimony. The court reasoned that Eidmann's experiences were "[s]eparate" from and "unrelated" to those of Allread. The court concluded that, given the limited relevance of the expected testimony, admitting the proffered evidence would unfairly prejudice the City by encouraging the jury to make an improper inference regarding the City's conduct.

The City additionally sought to exclude the testimony of Nancy Tosta, a former City council member. During trial, Allread sought to introduce testimony by Tosta regarding an executive session meeting in which she had participated as a councilmember. Allread additionally asserted that Tosta should be permitted to testify regarding Wilson's "professionalism" because, she averred, the "door ha[d] been opened" to such evidence by prior witness testimony. The parties extensively briefed and argued whether the proffered testimony was inadmissible pursuant to attorney-client or executive session privileges.

However, the trial court ultimately determined that, notwithstanding the applicability of such privileges, the record was inadequate to permit Tosta to testify regarding the "two very specific areas of examination" sought by Allread. The court explained that, based on Allread's offer of proof, the court "[didn't] even know what [Tosta was] going to say." The proffered testimony, the trial court explained, was "literally undisclosed." Accordingly, permitting such testimony would be akin to "conducting discovery in the middle of a trial," which, the court determined, would not be "appropriate." The trial court additionally rejected Allread's assertion that the "door ha[d] been opened" to testimony regarding Wilson's professionalism. However, the court ruled that it was not excluding all testimony by Tosta. Indeed, Tosta testified at trial regarding City budgetary issues.

Although the trial court excluded the testimony of former City employee Eidmann, another former City employee, Patricia Mejia, was permitted to testify at trial. Mejia, who was employed by the Parks and Recreation Department, testified that she was laid off at the end of 2020 when her position with the City was eliminated. During Mejia's testimony, the City objected to questions concerning Mejia's beliefs about the cause of the termination of her employment. Consistent with its ruling excluding Eidmann's testimony, the trial court sustained these objections, similarly disallowing such testimony by Mejia.

During trial, Allread moved for a "finding of spoliation" by the trial court. She asserted that such a finding was warranted based on Wilson's testimony that he had, at times, taken handwritten notes related to City matters and that he had destroyed some such notes subsequent to Allread's assertion of claims against the City. Based on Wilson's testimony, Allread sought an adverse jury instruction regarding the contents of the notes purportedly destroyed by Wilson. The trial court denied Allread's motion, concluding that there was no basis to present the jury with such an instruction.

Following six days of testimony, Allread moved for a directed verdict as to her PFMLA retaliation claim. She asserted that a provision in the proposed separation agreement presented to her by the City constituted per se retaliation because, she averred, it "threatened to contest [her] application for unemployment benefits if she alleged that her termination was the result of discrimination, harassment, retaliation, or unlawful conduct." The trial court denied Allread's motion.

The jury was thereafter instructed on each of Allread's three claims against the City: a claim of PFMLA interference, a claim of PFMLA retaliation, and a claim of wrongful termination in violation of public policy. The jury returned a verdict...