Calcote v. City of Seattle

KEVIN M. CALCOTE, Appellant, v. CITY OF SEATTLE, d/b/a Seattle Department of Transportation, Respondent.

No. 77136-1-I

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION ONE

January 22, 2019

UNPUBLISHED OPINION

SMITH, J. — Kevin Calcote appeals the trial court's summary dismissal of his claims against the city of Seattle (City) for disparate treatment, retaliation, and hostile work environment. Because genuine issues of material fact exist as to Calcote's disparate treatment claim to the extent that it is based on the City's alleged denial of overtime opportunities in 2015, the trial court erred by dismissing that claim in its entirety. The trial court also erred by dismissing Calcote's hostile work environment claim because Calcote raised genuine issues of material fact with regard to that claim. But Calcote's retaliation claim was properly dismissed. Therefore, we affirm in part, reverse in part, and remand for further proceedings.

FACTS

Kevin Calcote is an African-American concrete crew chief in the Street Paving work group of the Seattle Department of Transportation's (SDOT) Street Maintenance Division (SMD). Street Paving crews conduct maintenance and construction projects on Seattle's streets and sidewalks, and operate out of two SDOT facilities: Haller Lake in North Seattle and Charles Street in South Seattle In 2010, SMD began experiencing the financial repercussions of the 2008 recession. Accordingly, in June 2011, Steve Pratt, SMD's director, eliminated two out of five concrete crews—one at Haller Lake and one at Charles Street. Calcote's crew, which was located at Haller Lake, was not eliminated. But Madelene Puloka, Calcote's supervisor, was laid off. It is undisputed that following these layoffs, Calcote was the only African-American crew chief in Street Paving. After Puloka was laid off, Calcote reported to Lorie Munger.

In February 2012, Calcote met with Pratt to complain about Calcote's 2011 evaluation, which was less favorable than evaluations that he had received in the past Pratt testified via declaration that meanwhile, a paving manager had been moved from Haller Lake to Charles Street. As a result, the crews at Haller Lake had no on-site supervision. Pratt testified he decided to move Calcote and his crew to Charles Street, but before the move was implemented, SDOT's finance department directed him to make more cuts. Pratt then decided to disband Calcote's crew.

Pratt met with Calcote in February 2012 and offered him two options. One option was to move to a slightly lower-paying crew chief position in Maintenance Operations, another SMD work group Another option was for Calcote to keep his crew chief title and pay but move to SMD's Pavement and Engineering Management Section (PEMS) Calcote was ultimately reassigned to PEMS as of March 6, 2012. While assigned to PEMS, Calcote worked no PEMS overtime. Calcote also did not work any Street Paving overtime while he was at PEMS, except in May 2014 when he filled in for Jamey Vanater, an asphalt crew chief, while Vanater was on leave.

In May or June 2014, while Calcote was still assigned to PEMS, he provided to Pratt, Evan Chinn (SDOT's director of human resources), and Calcote's then supervisor at PEMS, Elizabeth Sheldon (collectively HR) materials complaining about his treatment in 2011, his 2011 evaluation, and his reassignment from Street Paving to PEMS. At a subsequent meeting with HR, Calcote indicated that he wished to be reclassified as an associate civil engineer. Sheldon testified via declaration that she then had a conversation with Calcote about seeking reclassification and that Calcote ultimately did not pursue reclassification but requested to be moved back to Street Paving. Calcote returned to Street Paving as an active crew chief on March 15, 2015. Munger was again Calcote's supervisor there until Munger retired in December 2015.

On March 23, 2015, Calcote sued the City for wrongful withholding of wages, negligent supervision, and the following claims under the Washington Law Against Discrimination Act (WLAD), chapter 49.60 RCW. loss of reputation, disparate treatment, retaliation, and hostile work environment. In May 2017, the City moved for summary judgment on all of Calcote's claims. In support of his response to the City's motion, Calcote filed a lengthy declaration from Julius Rwamashongye, who joined Street Paving as a manager about three or four months after Calcote returned to Street Paving. The City moved to strike Rwamashongye's declaration and provided the trial court an appendix setting forth specific objections to many but not all of the statements in Rwamashongye's declaration.

On the morning of the summary judgment hearing, Calcote moved the trial court under ER 201 to take judicial notice of SDOT's "Upward Mobility Manual," the City's Personnel Rules, and a number of documents related to the City's Race and Social Justice Initiative. The trial court denied Calcote's ER 201 request, granted the City's motion for summary judgment with respect to all of Calcote's claims, and excluded Rwamashongye's declaration in its entirety. Calcote appeals.

ANALYSIS

City's Motion To Strike

The City moves this court to strike from Calcote's reply brief all citations to and arguments relying on the following documents, which the trial court declined to take judicial notice of below. the SDOT Upward Mobility Manual and documents related to the City's Race and Social Justice Initiative (collectively, Excluded Documents). In response to the City's motion, Calcote requests this court accept the Excluded Documents as additional evidence on appeal. For the reasons that follow, we deny Calcote's request and grant the City's motion to strike.

As an initial matter, we may decline to consider arguments that rely on evidence that the trial court excluded where, as here, the appellant did not assign error to the court's exclusion. Bryant v Palmer Coking Coal Co , 86 Wn. App. 204, 221, 936 P.2d 1163 (1997). Calcote argues that we should disregard his technical failure to assign error to the trial court's exclusion of the Excluded Documents and exercise our discretion to consider this case on its merits. Because Calcote provided no argument and no citation to authority on the issue of whether the trial court erred by refusing to take judicial notice of the Excluded Documents, we decline to do so. See State v. Olson, 126 Wn 2d 315, 323, 893 P.2d 629 (1995) (discretion to consider a case on its merits despite technical error should be exercised "where the nature of the appeal is clear and the relevant issues are argued in the body of the brief and citations are supplied").

Calcote also contends, relying on Maynard v. Sisters of Providence, 72 Wn. App. 878, 866 P.2d 1272 (1994), and State v Berg, 177 Wn. App. 119, 310 P.3d 866 (2013), rev'd, 181 Wn.2d 857, 337 P.3d 310 (2014), that we should consider the Excluded Documents as additional evidence. Calcote's reliance on these cases is misplaced. In Maynard, the party seeking to introduce additional evidence on appeal had filed a motion for reconsideration relying on that evidence. Maynard, 72 Wn. App. at 880. Here, by contrast, there was no motion for reconsideration relying on the Excluded Documents and, until Calcote filed his reply, no basis from which the City could know that Calcote would raise arguments relying on the Excluded Documents. And in Berg, the court considered arguments raised for the first time in a reply brief because the Washington Supreme Court decided a relevant case after the appellant filed his opening brief. Berg, 177 Wn. App. at 127 n.5. But here, no such intervening action occurred. Maynard and Berg are not persuasive.

Calcote next argues that it is appropriate for this court to take judicial notice of the Excluded Documents under ER 201. But Calcote does not provide any discussion as to whether the Excluded Documents satisfy the requirements of ER 201(b). Accordingly, we do not consider this argument Holland v City of Tacoma, 90 Wn. App. 533, 538, 954 P.2d 290 (1998) ("Passing treatment of an issue or lack of reasoned argument is insufficient to merit judicial consideration.")

As a final matter, Calcote asserts "[t]he City has cited no authority supporting the proposition that this Court's review of additional evidence may not be considered at this stage, especially when this evidence replies to legal analysis and reasoning in the City's Response Brief." Calcote then urges us to accept the Excluded Documents as additional evidence to "serve the ends of justice." But RAP 9.11 governs this court's acceptance of additional evidence on appeal, and Calcote has neither discussed RAP 9.11 nor provided argument that the criteria therein have been satisfied. Furthermore, Calcote has not offered any explanation why allowing him to add new evidence to the record on appeal would serve the ends of justice in this case. Accordingly, we strike from Calcote's reply brief the citations to and arguments relying on the Excluded Documents.

Calcote's Request for Judicial Notice

Calcote moves this court under ER 201 and RAP 9.11 to accept into the record and take judicial notice of voluminous City overtime records that were not introduced into the record below. We decline to do so and deny Calcote's motion.

As an initial matter, "[e]ven though ER 201 states that certain facts may be judicially noticed at any stage of a proceeding, RAP 9 11 restricts appellate consideration of additional evidence on review." King County v Cent Puget Sound Growth Mgmt. Hr'gs Bd , 142 Wn.2d 543, 549 n.6, 14 P.3d 133 (2000) RAP 9.11(a) provides that this court

may direct that additional evidence on the merits of the case be taken before the decision of a case on review if. (1) additional proof of facts is needed to fairly resolve the issues on review, (2) the additional evidence would probably change the decision being reviewed, (3) it is equitable to excuse a party's failure to present the evidence to the trial

...