Muhl v. Davies Pearson, P.C.

CSILLA MUHL, Appellant, v. DAVIES PEARSON, P.C., Respondent.

No. 46602-3-II

Court of Appeals of Washington, Division 2

October 20, 2015

UNPUBLISHED OPINION

Bjorgen, J.

The trial court dismissed Csilla Muhl's wrongful termination and retaliation claims against Davies Pearson P.C. on summary judgment. Muhl appeals, claiming that the trial court erred by (1) striking her expert witness without performing the analysis required by Burnet v. Spokane Ambulance, 131 Wn.2d 484, 933 P.3d 1036 (1997), (2) dismissing her claims when material issues of fact remained about each, and (3) violating the appearance of fairness doctrine necessitating the assignment of this case to a different superior court department on remand.

We hold that (1) the trial court erred by striking the report of Muhl's expert without complying with Burnet, (2) material issues of fact remain about Muhl's wrongful termination and retaliation claims, and (3) the trial court did not violate the appearance of fairness doctrine. Consequently, we reverse both the order striking the report of Muhl's expert and the order of summary judgment, and we remand this matter for further proceedings consistent with this opinion.

FACTS

Muhl began working as an attorney for Davies Pearson in 1996. She left the firm in 1997, but returned in 2006 in the capacity of a "Contract Partner" after Davies Pearson recruited her to work in its family law group.

In October 2010, Muhl moved to continue a client's matter in trial court, referred to as the "K" trial ^[1] to allow her to obtain necessary discovery. When the trial court denied the motion, Muhl had what Susan Caulkins, another Davies Pearson attorney, would later call a "meltdown" in front of "K" and some of the firm's staff. Clerk's Papers (CP) at 61. The client, upset by Muhl's loss of composure, initially demanded that another Davies Pearson attorney handle the case, although she later withdrew that demand.

When the "K" matter later went to trial, Muhl asked her expert witness a question that the trial court viewed as an attempt to circumvent a pretrial order. The trial court wrote Muhl a letter expressing its concerns and requesting that she address them. Muhl told her firm mentor, attorney Ron Coleman, about the letter and asked for his help in drafting her response. Muhl responded to the trial court by offering a legitimate reason for asking the expert witness the question the trial court accepted her explanation and stated that it considered the matter closed. Muhl informed Coleman of this and he replied that everything "look[ed] good." CP at 348.

Muhl's work in the "K" trial "helped the client achieve a very favorable outcome." CP at 313. Despite this result, Caulkins wrote a detailed memo critiquing Muhl's performance in the case and gave the memo to Muhl. Muhl, however, disregarded the memo as criticism from a peer, because Caulkins had no supervisory authority over her.

In early 2011, Davies Pearson hired attorney Mark Nelson. The firm's shareholders believed that its family law group needed a male attorney, and the lone male attorney working in this group had just left it. Muhl contended that after the firm hired Nelson she received fewer intra-firm referrals, which were critical to her practice.

Nelson's hiring caused Muhl to question the treatment of female employees at Davies Pearson. In November 2011, Muhl met with Coleman and challenged the firm's treatment of its female attorneys. Muhl discussed firm diversity and leadership and noted that Davies Pearson had "[o]nly 1 woman [shareholder out of 11 total[] [and] 4 female attorneys [out of] 20 total." CP at 339. From this, Muhl inferred that "[f]emale attorneys do not appear to be recognized, promoted or retained" and asked Coleman, "[d]oes the firm have any interest in having female presence/partners?" CP at 339. According to Muhl, Coleman later indirectly answered this question by telling her that most of the female associates at the firm, including Muhl herself, were not on track to become shareholders.

Muhl did not raise concerns about sexual discrimination at the firm with any other shareholder. Coleman never discussed the substance of his November 2011 meeting with Muhl with any of the other shareholders.

In September 2012, one of Muhl's clients told her at the last minute that he did not want to pay her to appear and represent him at a contempt hearing. Muhl, feeling bound by the rules of professional conduct, acceded to the client's wishes and did not appear. Given the timing of the client's directive, Muhl did not file a notice of withdrawal until after the hearing. Caulkins discovered the hearing on the day it was scheduled during a routine check of the court's docket. Knowing that Muhl was not working, Caulkins went to the hearing and appeared on behalf of the client. Caulkins's appearance on the client's behalf "did not make any difference to the outcome" and the client expressed no dissatisfaction with Muhl's failure to appear. CP at 314.

Caulkins complained about the incident to Tomlinson and Coleman, and Davies Pearson's Board of Directors eventually recommended that the firm terminate Muhl's employment. Seven of Davies Pearson's shareholders, Coleman included, voted to accept that recommendation. After the vote, Muhl was given a choice: she could resign or Davies Pearson would terminate her employment. Muhl chose termination, telling the firm that she "wanted to be honest about this and not sugarcoat anything." CP at 560. Davies Pearson granted Muhl's request, ending her employment at the end of November 2012.

Muhl then filed suit against Davies Pearson, alleging, among other matters, that her termination resulted from sexual discrimination and retaliation for opposing sexual discrimination, both violations of the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW. Davies Pearson denied all wrongdoing.

The trial court initially ordered the disclosure of the parties' witnesses by late December 2013. Muhl later discovered a book on gender discrimination written by Dr. Rosalind Barnett and retained her as an expert. Six months after the witness disclosure deadline, Muhl gave Davies Pearson a supplemental witness list that included Barnett's name and moved to extend the discovery deadline. The court granted that request, extending the deadline until July 25, 2013. On July 24, Muhl produced Barnett's report, which opined that Muhl's termination was the result of gender inequities and gender discrimination at Davies Pearson.

Davies Pearson moved to strike Barnett's report for a number of reasons, including a failure to comply with the local rules, specifically Pierce County Local Rule 26 governing discovery. Muhl contended the trial court should deny the motion to strike Barnett's report, because she had "disclosed the expert's identity at or very near the time it became known." CP at 637. She argued that her disclosure of Barnett as soon as possible foreclosed a finding of willfulness under Burnet and that lesser sanctions would vindicate the purposes of discovery. The trial court determined that Muhl had hired Barnett "very, very, very late in the game, " and ordered that "[t]he expert witness report of Dr. Rosalind Barnett is stricken." Verbatim Report of Proceedings (VRP) (Aug. 8, 2013) at 7-8; CP at 664. When Muhl's attorney raised the necessity of analyzing the Burnet factors on the record and asked about a lesser sanction, the trial court stated, "[T]here is no lesser sanction, " because it perceived Davies Pearson would lack sufficient time to obtain its own expert to rebut Barnett's testimony.

Davies Pearson also moved for summary judgment on Muhl's claims. The firm contended that Muhl could not show that her termination was motivated by discriminatory or retaliatory animus and that it had permissible reasons for the termination. Muhl opposed summary judgment on the wrongful termination claim by contending that her employment record, which contained satisfactory to favorable reviews and which had no document that would have served as a precursor to termination, allowed the inference that Davies Pearson's articulated reasons for replacing her with Nelson, a male, were pretextual. Muhl opposed summary judgment on the retaliation claim by arguing that she had proven a prima facie case of retaliation, which precluded summary judgment.

The trial court held that Muhl had failed to show a prima facie case of wrongful termination and determined that no reasonable person could conclude that Davies Pearson's articulated reasons for Muhl's termination were pretextual, disposing of both her wrongful termination and retaliation claims.

Muhl appeals the order granting Davies Pearson's motion to exclude Barnett's report and the order granting its motion for summary judgment.

ANALYSIS

I. Exclusion of Barnett's Report

Muhl first argues that the trial court abused its discretion by striking Barnett's report without first finding that her failure to timely disclose Barnett as a witness (1) was willful and (2) incapable of remedy with a lesser sanction. Davies Pearson responds that the trial court properly excluded Barnett's report because (1) the discovery sanction is moot, (2) the trial court properly concluded that lesser sanctions would not have served the purposes of the discovery rule, and (3) Barnett's declaration was inadmissible under a number of evidence rules.

The civil rules allow the trial court to impose sanctions to enforce its discovery orders. CR 37. We review the trial court's imposition of discovery sanctions for an abuse of discretion. Blair v. TA-Seattle East No. 176, 171 Wn.2d 342, 348, 254 P.3d 797 (2011).

The trial court's discretion in imposing discovery sanctions "is cabined" by Burnet, 131...