Steven Lodis & Deborah Lodis v. Corbis Holdings, Inc. ( 2015 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
STEVEN LODIS and DEBORAH
LODIS, a marital community, DIVISION ONE _.-,-
Appellants, No. 72342-1-1
c~>
C>
v.
PUBLISHED OPINION -^.
CORBIS HOLDINGS, INC., a vo
Washington corporation; CORBIS **-
o"
CORPORATION, a Nevada corporation;
and GARY SHENK, an individual,
Respondents. FILED: December 28, 2015
Dwyer, J. — Trials matter. The results of trials matter. The manner in
which a trial takes place, the evidence admitted, and the judicial rulings made all
matter. In this case, the plaintiff, Steven Lodis, being already unhappy with the
results of two separate jury trials arising from causes of action asserted in the
complaint herein, finds himself similarly disaffected by the result of the third jury
trial in this matter. In an effort to obtain yet a fourth jury trial in this cause, Lodis
seeks to recharacterize and redefine numerous discretionary rulings made by the
trial judge. As should be the case with all endeavors of this type, Lodis's entreaty
"now meets the implacable gaze of the appellate court."1 We affirm.
1 Green v. Normandy Park Riviera Section Cmtv. Club, 137 Wash. App. 665, 680, 151 P.3d
1038 (2007).
No. 72342-1-1/2
1. Lodis Sues Corbis; His Claims are Dismissed by the Trial Court or
Rejected by the First Jury; A Second Jury Finds That Lodis Breached His
Fiduciary Duty and Awards Damages to Corbis; Lodis Appeals.
We summarized the facts preceding the first appeal herein in Lodis v.
Corbis Holdings. Inc., 172 Wash. App. 835, 292 P.3d 779 (2013).2
Corbis Corporation supplies digital images and stock
photography worldwide. Steven Lodis was hired in 2005 by then-
chief-executive-officer (CEO) Steve Davis to serve as vice
president of worldwide human resources (HR) for Corbis. In July
2007, 37 year old Gary Shenk replaced Davis as CEO. Davis
expressed concerns to Shenk about Lodis's performance. Instead
of terminating Lodis, Shenk appointed Lodis to his nine person
executive management team. Lodis was 55 at the time of the
promotion. He initially received positive performance reviews from
Shenk.
After becoming CEO, Shenk made many comments
indicating his preference for younger workers. He talked about
olderworkers being "out of touch," "an old-timer," "grandmotherly,"
or "the old guy on [the] team." Shenk also expressed interest to
Lodis in hiring younger workers for his executive team.
Lodis spoke with Shenk on several occasions about Shenk's
age related comments. Lodis explained that there was a growing
concern among Corbis employees about Shenk's comments. As
the highest ranking HR officer at Corbis, Lodis reminded Shenkthat
age should not be a factor in hiring or firing employees. Lodis
explained later that he admonished Shenk, because he was "trying
to protect [him]." In late 2007, Lodis expressed his concern about
Shenk's comments to Corbis General Counsel Jim Mitchell.
Around that same time, in late 2007 or possibly January 2008,
Shenk promoted Lodis to senior vice president. Lodis also received
a pay raise and incentive bonus at that time.
In January 2008, Shenk organized executive team members
and an independent consultant to conduct Lodis's annual
performance review. The parties dispute the circumstances
surrounding that performance review. Lodis alleges that Shenk
specifically recruited Lodis detractors to compile a list of Lodis's
faults and reasons to fire Lodis, because of Lodis's complaints to
Shenk about the possible age discrimination. Corbis counters that
2Because the first appeal concerned, in part, the trial court's grant ofsummary judgment
dismissal of Lodis's retaliation claim, our factual summary recited the facts in the light most
favorable to Lodis. Lodis. 172 Wash. App. at 846.
No. 72342-1-1/3
the independent consultant found Shenk's reviews to be "off the
charts negative," which precipitated Shenk putting Lodis on
probation.
Part of Lodis's probation required him to meet and discuss
his working relationships with his colleagues. Shenk terminated
Lodis for cause on March 26, 2008, for failing to meet the terms of
his probation. Lodis allegedly lied to Shenk about meeting with the
people who reported directly to him and failed to improve his
relationship with them. Corbis claims this is the actual reason for
Lodis's termination, along with ongoing performance issues and
retaliation against another employee regarding a sexual
harassment claim. Lodis counters that the performance review and
probation were pretextual in order to fire Lodis for his complaints
about Shenk's purported age discrimination.
Three months after his termination, Lodis sued Corbis and
Shenk, alleging age discrimination under RCW 49.60.180 and
retaliation under RCW 49.60.210. Judge Michael Hayden granted
Corbis's motion for summary judgment on the retaliation claim. . . .
At trial, Judge Bruce Heller denied . . . Lodis's requests to . ..
reinstate his retaliation claim.
During discovery, Corbis . . . discovered that Lodis failed to
record any vacation time in the payroll system during his tenure, but
accepted a payout of $41,155 plus a 401(k) match of $1,235 for
329 hours of accrued but unused vacation time. Based on this
evidence, Corbis counterclaimed against Lodis for breach of
fiduciary duty, unjust enrichment, and fraudulent misrepresentation.
At trial, Mary Tomblinson, Corbis's payroll coordinator and HR
system analyst, testified that Lodis used at least 35 more vacation
days than he was entitled to. A summary of her analysis of those
records was also admitted into evidence.
Before the first trial, the trial court refused to decide as a
matter of law whether Lodis owed a fiduciary duty, instead leaving
the issue for the jury. The jury found that Corbis had not engaged
in age discrimination. It found in favor of Lodis on the unjust
enrichment and fraud counterclaims. However, the jury found that
Lodis owed a fiduciary duty and breached that duty, but awarded
no damages. The trial court granted a new trial on Corbis's breach
of fiduciary duty counterclaim based on this incongruous result of
liability but no damages.
Before the second trial, Corbis moved for partial summary
judgment to establish that Lodis was an officer with fiduciary duties.
In its reply brief to that motion, Corbis introduced corporate
resolutions indicating Lodis's status as an officer. Based on this
evidence, Judge Heller found as a matter of law that Lodis was an
officer.
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No. 72342-1-1/4
The second jury found that Lodis ... did breach his fiduciary
duty by failing to record any vacation time and accepting the
payout. The jury awarded damages in the full amount of the
vacation payout: $42,389.
Lodis. 172 Wash. App. at 842-46 (footnote omitted).
2. Following Appeal, Lodis's Retaliation Claim is Remanded for Trial
Before A Third Jury.
On appeal following the second jury trial, we affirmed the prior judgments
and jury verdicts regarding the age discrimination claim and the breach of
fiduciary duty counterclaim, but reversed Judge Hayden's order granting
summary judgment dismissal of Lodis's retaliation claim. Lodis. 172 Wash. App. at
852. As a result, the retaliation claim was remanded for what would be the third
trial in this action, held before Judge Heller in May 2014.
3. Lodis's Retaliation Claim is Premised Upon Five Alleged
Admonishments of Shenk.
To establish a claim for retaliation under RCW 49.60.210, Lodis needed to
prove that he had engaged in certain protected activity and that Corbis, in turn,
took adverse employment action against him for having done so. Lodis, 172 Wn.
App. at 846-47. Lodis alleged that his protected activity was comprised of
admonishing Shenk on five separate occasions for making "ageist" comments.
Corbis and Shenk denied that any of these admonishments ever occurred.
Lodis testified that the first of the five alleged admonishments occurred
sometime in the spring of 2007, after Shenk allegedly referred to Corbis's then-
director ofcompensation and benefits as the "old guy" on Lodis's human
resources team. Lodis testified that he asked Shenk to "stop referring to [the
employee] as 'the old man on the team.'" Shenk denied ever referring to the
No. 72342-1-1/5
employee in that manner or ever being admonished by Lodis for doing so.
Lodis next testified that in the spring or summer of 2007, he admonished
Shenk for a second time after Shenk referred to his new executive team as a
"young team,"3 which was brought to Lodis's attention by Corbis's then-human
resources manager. Lodis also testified that he again admonished Shenk in
August or September 2007 for referring to his executive team as a "young team,"
after Lodis (he claimed) discussed the issue with Corbis's then-CFO. Further,
Shenk admitted that he referred to his executive team in that manner but stated
that it had nothing to do with age and, rather, was meant "to express the passion,
energy, and newness, the new thinking that those team members brought to the
table." Further, Shenk denied that Lodis had ever discussed this issue with him.
Lodis further testified that, in approximately November 2007, he
admonished Shenk for a fourth time after Shenk referred to a Corbis employee—
who had been identified for possible termination as part of a reduction in force-
as "old." Shenk denied ever referring to the employee in that manner and denied
that Lodis had ever discussed this issue with him.
Finally, Lodis testified that, in late November or early December 2007, he
admonished Shenk for a fifth time after Shenk expressed that he wished to
replace the then-senior vice president of Corbis's "Green Light Division" with a
"young Hollywood type." Shenk denied that he sought to replace the employee
with a "young Hollywood type," although he acknowledged that he considered an
3The majority of the members of Shenk's executive team were over 40 years of age and
several were over 50.
No. 72342-1-1/6
applicant for employment who resided in the Hollywood, California area.4 Shenk
again denied that Lodis ever expressed any concerns regarding this issue to him.
Lodis testified that, in early December 2007, he reported his concerns
about Shenk's comments to Jim Mitchell, Corbis's then-general counsel. Mitchell
denied that this conversation ever occurred. In any event, Lodis admitted that he
had no knowledge as to whether Mitchell informed Shenk of his conversation
with Lodis.
At trial, Lodis introduced no written documents or corroborating testimony
evidencing that any of the claimed admonishments took place.5
4. The Trial CourtEnters Orders In Limine Restricting the Evidentiary
Scope of the Trial to Lodis's Retaliation Claim.
Prior to commencement of the third trial, Corbis filed motions in limine
seeking to limit the scope ofthe trial to the one remaining claim at issue.
Specifically, Corbis moved to preclude Lodis from attempting to use irrelevant
and prejudicial evidence of alleged age discrimination, which had already been
rejected by the jury in the first trial. Corbis also moved to preclude Lodis from
attempting to relitigate the issue of whether he had breached a fiduciary duty
owed to Corbis by failing to record vacation time—an issue central to Corbis's
after-acquired evidence defense. Judge Heller granted each motion and entered
orders limiting the admission of this evidence.
4This applicant was approximately the same age as the employee that, Lodis testified,
Shenk sought to replace on account of his age.
5 Lodis claims that he maintained documentation of the admonishments in his Corbis
office files but that Corbis "destroyed" the documents after Lodis brought suit. At no time did
Lodis seek relief from the trial court for such alleged spoliation of evidence. Corbis produced
Lodis's notes during discovery and vehemently denied destroying orwithholding any documents.
No. 72342-1-1/7
a. The Trial Court Orders that Evidence of Alleged Age
Discrimination Be Limited to the Five Alleged Admonishments.
In its motion to preclude admission of certain evidence of alleged age
discrimination, Corbis argued that evidence of alleged age discrimination not
related to Lodis's claimed admonishments was inadmissible under the legal
doctrines of law of the case and collateral estoppel, as well as pursuant to the
applicable rules of evidence. Judge Heller did not accept Corbis's law of the
case or collateral estoppel arguments but did grant Corbis's motion based upon
its evidentiary arguments, reasoning as follows:
The issue in the first motion is whether the same evidence of age
discrimination that was introduced in the first trial to prove that
Lodis' termination was based on his age is now admissible to prove
retaliatory discharge. Lodis cites Brundridge[6] for the proposition
that an employer's treatment of other employees is admissible to
show retaliatory discharge. That's true, but the treatment of the
other employees in Brundridge was retaliation, not any type of
discriminatory behavior. Thus, Brundridge would allow Lodis to
introduce evidence of retaliatory behavior by Shenk towards other
employees. Lodis will also be permitted to introduce evidence
concerning the alleged discriminatory behavior by Shenk that Lodis
admonished Shenk about. But alleged ageist statements by Shenk
that Lodis did not address with Shenk are inadmissible. Counsel
will recall that during the first trial the court ruled that alleged sexist
remarks by Shenk were not admissible to prove age discrimination.
The same logic applies here with respect to the connection
between ageist remarks and retaliatory motives.
b. Lodis Repeatedly and Surreptitiously Introduces Evidence
Excluded by the Trial Court's Order, Prompting Admission of the First Jury
Verdict.
In conjunction with his ruling that Lodis would be limited to introducing
evidence of alleged admonishments he made to Shenk, Judge Heller initially
ruled that evidence of the age discrimination verdict from the first trial would be
« Brundridge v. Fluor Fed. Servs.. Inc.. 164 Wash. 2d 432, 191 P.3d 879 (2008).
No. 72342-1-1/8
inadmissible. However, during trial, Lodis proceeded to introduce broad
evidence and testimony of alleged age discrimination in contravention of the trial
court's order. For example, Lodis repeatedly testified about and referred to the
ages of members of Shenk's executive team and suggested that Shenk was
motivated to make age-based employment decisions, even though there was no
allegation that Lodis ever admonished Shenk for such actions. Lodis also
suggested that Shenk had made "ageist" comments for which Lodis did not
admonish him.
On these occasions, Corbis objected to the admissibility of such evidence
and asserted that, by suggesting that Shenk was an "ageist," Lodis had "opened
the door" to the admissibility of evidence of the age discrimination verdict. The
trial court repeatedly upheld its prior ruling excluding evidence of the age
discrimination verdict,7 while also cautioning Lodis's counsel that "he was taking
a bit of a risk by going down th[at] road."
Ultimately, on the fifth day of trial, after Lodis repeatedly elicited testimony
suggesting both that Shenk was biased against older workers and had engaged
in age discrimination, the trial court concluded that Lodis had opened the door to
admission of evidence of the age discrimination verdict.
I've spent a fair amount of time thinking about the issue of whether
the prior jury verdict regarding age should come into evidence. As
you know, my primary concern in ruling that it should stay out is I
was concerned, as I indicated this morning, that if the jury was
aware of that verdict, that they might make shortcuts and, for
example, decide that if there is no basis for the age claim, then
there is no basis for the retaliation claim.
7"I'm not going to make any rulings at this point as to whether or not the door has been
opened on the age claim. At this point, I'll hold the line on that as well as what happens
tomorrow."
No. 72342-1-1/9
However, there has been evidence, quite a bit of evidence,
regarding age within the context of the retaliation claim. I'm thinking
particularly of the evidence that came in yesterday in the cross-
examination of Mr. Shenk regarding the fact that Mr. Shenk turned
to Gillett, Brotman, and whoever the third member was of the
executive team who were the younger members of the team, and
the argument was that they wouldn't have stood up to him. That
was one inference that could be drawn from it. I think that's an
example of the jury hearing evidence regarding age and not
knowing what to do with it.
[Corbis's counsel] has persuaded me that just as Mr. Lodis
needs to be protected from what I refer to as "shortcuts," I think
Corbis also needs to be protected from the opposite thinking, which
is, Well, we think that Mr. Shenk engaged in age discrimination by
going to the younger members of the team, for example.
So I think the jury needs some kind of a limiting instruction
that tells them that the two issues are entirely separate.
After ruling that evidence of the jury verdict was admissible, the trial court
gave the jury a limiting instruction as follows:
Members of the jury, during this trial, you have heard that a
prior jury found Mr. Lodis's termination was not the result of age
discrimination. You must keep in mind that this is a retaliation case,
not an age discrimination case. The issue of whether the
defendants engaged in age discrimination is not before you and
should not be considered by you in evaluating Mr. Lodis's
retaliation claim.
With respect to retaliation, the issues you must decide are,
one, whether Mr. Lodis reasonably believed that Mr. Shenk made
ageist comments; and, two, whether Mr. Lodis's alleged
expressions of concern to Mr. Shenk about these comments was a
substantial factor in his termination.
That concludes the instruction. Thank you.
c. The Trial Court Precludes Lodis from Relitigating Whether He
Breached a Fiduciary Duty.
Corbis's motion in limine regarding Lodis's prior breach of fiduciary duty
sought to prohibit Lodis from denying that such breach had occurred—a fact
established in two prior trials before two prior juries. Corbis contended that
Lodis's breach of fiduciary duty was directly relevant to its after-acquired
No. 72342-1-1/10
evidence defense, in that Lodis's misconduct would have otherwise led to a
justified termination, thereby limiting any damages he could recover for what he
was alleging to be a wrongful, retaliatory termination. In litigating this defense,
Corbis argued that Lodis should be prohibited under the legal doctrines of law of
the case and collateral estoppel from denying that his failure to record vacation
time constituted a breach of his fiduciary duties to Corbis.
Judge Heller granted Corbis's motion, reasoning as follows:
As to the second motion, the jury's verdict against Lodis regarding
breach of fiduciary duty is that law of the case. Lodis will therefore
not be permitted to re-litigate the issue by arguing, for example, that
the acceptance of the vacation pay-out after his termination
precludes a breach of fiduciary duty claim. The focus at trial will be
on whether Corbis would have terminated Lodis had it known about
Lodis' failure to record vacation time.
Judge Heller later ruled that evidence of the verdict from the second jury
on Corbis's breach of fiduciary duty claim was relevant and, hence, admissible
under the rules of evidence, reasoning as follows:
There are some other prior jury verdicts. I am going to allow
the juryto hear that a prior juryfound that Mr. Lodis violated his
breach of fiduciary duty by failing to record his vacation time ....
My reasoning for doing that is one of the issues in the after-
acquired evidence defense that will be raised by Corbis is that they
have to show that Mr. Lodis's conduct was serious. And then, of
course, they have to show that if they had known about it, they
would have terminated him.
The fact that a prior jury found that he breached his fiduciary
duty is clearly relevant to the seriousness issue.
5. The Trial Court Allows The Jury To Consider Corbis's After-Acquired
Evidence Defense.
10
No. 72342-1-1/11
Prior to the third trial, Lodis moved for judgment as a matter of law under
CR 50 on Corbis's after-acquired evidence defense.8 The trial court denied
Lodis's motion, reasoning as follows:
I wanted to address a number of pending motions. The first is
[Lodis's] motion for judgment as a matter of law on defendants'
after-acquired evidence defense.
And the issue that is being argued is whether or not there is
any actual employment practice of terminating employees for not
recording vacation.
[Lodis's counsel] argues that in the absence of any evidence
of that, there can be no after-acquired evidence defense; it can't be
based on a statement that "I would have terminated somebody."
The problem that I have with that argument is that even if
there has not been a termination based on this kind of conduct, the
question is: Has there ever been this kind of conduct in the past
that would warrant termination?
I know that there are disputes between the parties as to what
the practice has been and whether or not other employees have
failed to record vacation. As I understand Corbis's argument, there
is a difference between not recording an insignificant number of
days, however one wants to define that, and this situation.
Ithink that question really needs to be decided by the jury.
So based on the reasons that I have already given previously, I will
allow the after-acquired evidence to go to the jury.[9]
6. The Third Jury Rules in Corbis's Favor, Rejecting Lodis's Retaliation
Claim; The Trial Court Denies Lodis's Motion ForA New Trial.
Following an eight-day trial, the third jury returned a verdict in Corbis's
favor, finding that Corbis had not engaged in retaliation. Lodis filed a motion for
8Corbis had previously moved for partial summary judgment on its after-acquired
evidence defense, arguing thatthe defense had been established, as a matter of law, because
there had been a finding that Lodis breached his fiduciary duty, and there was undisputed
evidence that this breach was a terminable offense. The court acknowledged the validity of
Corbis's position, yet found that there remained questions offact for a jury, explaining that "[t]he
question at this stage is not whether Corbis can establish the elements ofthe after-acquired
evidence defense at trial, but whether the evidence is so strong that no reasonable jurorcould
find otherwise."
9After thejury rendered its verdict, Lodis filed a renewed CR 50 motion on Corbis's after-
acquired evidence defense on identical grounds, which Judge Heller similarly denied.
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No. 72342-1-1/12
a new trial under CR 59. The trial court denied Lodis's motion and entered
judgment for Corbis. Lodis now appeals for the second time.
II
Lodis first contends that the trial court erred by "precluding" him from
presenting evidence of his "reasonable belief of age discrimination and by
admitting evidence of the age discrimination verdict in Corbis's favor. This is so,
he asserts, because the evidence of his reasonable belief was relevant but
evidence of the verdict against him was both irrelevant and unfairly prejudicial.
We disagree.
The evidentiary principles of relevancy and prejudice are familiar ones.
All relevant evidence is admissible. ER 402; Medcalf v. Dep't of
Licensing. 83 Wash. App. 8, 16, 920 P.2d 228 (1996), affd, 133
Wash. 2d 290, 944 P.2d 1014 (1997). "Relevant evidence" is
"evidence having any tendency to make the existence of any fact
that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence."
ER 401; Medcalf. 83 Wash. App. at 16. Evidence tending to establish
a party's theory, or to qualify or disprove the testimony of an
adversary, is relevant evidence. Lamborn v. Phillips Pac. Chem.
Co., 89 Wash. 2d 701, 706, 575 P.2d 215 (1978); Maicke v. RDH. Inc..
37 Wash. App. 750, 752, 683 P.2d 227 (1984).
Haves v. Wieber Enters.. Inc., 105 Wash. App. 611, 617, 20 P.3d 496 (2001).
Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice. ER 403. "Evidence
may be unfairly prejudicial under ER 403 if it is evidence 'dragged in' for the sake
of its prejudicial effect or is likely to trigger an emotional response rather than a
rational decision among the jurors." Haves. 105 Wash. App. at 618 (citing Carson
v. Fine. 123 Wash. 2d 206, 223-24, 867 P.2d 610 (1994)). "The ability of the danger
12
No. 72342-1-1/13
of unfair prejudice to substantially outweigh the probative force of evidence is
'quite slim' where the evidence is undeniably probative of a central issue in the
case." Carson. 123 Wash. 2d at 224 (quoting United States v. 0.161 Acres of Land.
837 F.2d 1036, 1041 (11th Cir. 1988)). "[T]he burden of showing prejudice is on
the party seeking to exclude the evidence." Carson. 123 Wash. 2d at 225.
"ER 403 must be administered in an evenhanded manner." Carson. 123
Wash. 2d at 225. "Because of the trial court's considerable discretion in
administering ER 403, reversible error is found only in the exceptional
circumstance of a manifest abuse of discretion." Carson. 123 Wash. 2d at 226.
Lodis assigns error to two trial court rulings regarding the admissibility of
purported evidence of Shenk's alleged age discrimination. Each ruling is
addressed, in turn, below.
However, as a preliminary matter, we note that Lodis confuses the issue
by resting his claims on the trial court's rulings in limine, even though the trial
court later reconsidered the pertinent rulings in the course of the proceedings
based on the parties' conduct at trial. As our Supreme Court has explained:
A judge may reverse or modify a pretrial ruling at any time prior to
the entry of final judgment. See State v. Kinard, 39 Wash. App. 871,
873, 696 P.2d 603, review denied. 103 Wash. 2d 1041 (1985). When
this happens, a party must demonstrate the trial ruling itselfwas
erroneous in order to secure a reversal. See State v. Brooks, 20
Wash. App. 52, 60, 579 P.2d 961 (if evidence is admitted at trial
contrary to a pretrial order in limine, reversal is not required unless
the trial ruling was erroneous), review denied. 91 Wash. 2d 1001
(1978).
13
No. 72342-1-1/14
Adcox v. Children's Orthopedic Hosp. & Med. Ctr.. 123 Wash. 2d 15, 37, 864 P.2d
921 (1993). Thus, we consider only the trial court's final rulings regarding the
evidence at issue.
A
Lodis first asserts that the trial court erred by "precluding" him from
presenting evidence of his "reasonable belief that he opposed discriminatory
conduct.10
As we noted in our prior decision herein:
The WLAD [Washington Law Against Discrimination]
protects employees engaged in statutorily protected activity from
retaliation by their employer. See RCW 49.60.210. It provides:
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) (emphasis added).
Lodis, 172 Wash. App. at 847-48. The so-called "opposition clause," which
provides protection when an employee opposes forbidden practices, is at issue
here.
"To establish a prima facie case of retaliation under the WLAD, the
employee must show that (1) he engaged in statutorily protected activity; (2) the
employer took some adverse employment action against the employee; and (3)
10 Lodis's briefing on this issue also argues that neither the doctrine of collateral estoppel
nor the lawof the case doctrine provides a basis for the challenged trial court ruling. Because the
trial court did not rely on either doctrine in rendering its decision, and Corbis does not contend on
appeal that either doctrine applies, we do not further address these arguments.
-14-
No. 72342-1-1/15
there is a causal link between the protected activity and the adverse action."11
Lodis. 172 Wash. App. at 846. "'[A]n employee who opposes employment
practices reasonably believed to be discriminatory is protected by the "opposition
clause" whether or not the practice is actually discriminatory.'" Renz v. Spokane
Eve Clinic. P.S.. 114 Wash. App. 611, 619, 60 P.3d 106 (2002) (alteration in
original) (internal quotation marks omitted) (quoting Graves v. Dep't of Game. 76
Wash. App. 705, 712, 887 P.2d 424 (1994)); accord Lodis, 172 Wash. App. at 852
("An employee need only show he had an objectively reasonable belief that his
employer violated the law, not that the employer did in fact violate the law." (citing
Ellis v. City of Seattle. 142 Wash. 2d 450, 460-61, 13 P.3d 1065 (2000))).
As a preliminary matter, contrary to Lodis's assertion, he was not
"precluded" from presenting evidence of his reasonable beliefthat he was
opposing discriminatory conduct. The record herein demonstrates that, in fact,
Lodis was permitted to present evidence concerning every one of the five
instances of allegedly discriminatory conduct that he claimed to have openly
opposed.
Notwithstanding that the trial court's ruling permitted him to present
significant evidence of allegedly discriminatory conduct by Shenk, Lodis
contends that the trial court erred by prohibiting him from presenting evidence of
each instance of allegedly discriminatory conduct of which he was aware.
Lodis's contention overlooks the trial court's discretion to exclude minimally
11 A retaliatory motive need not be the employer's sole or principal reason for the
discharge so long as the employee establishes that retaliation was a substantial factor. Wilmot v.
Kaiser Aluminum & Chem. Corp.. 118 Wash. 2d 46, 68-69, 821 P.2d 18 (1991 ^: Kahn v. Salerno. 90
Wash. App. 110, 128-29, 951 P.2d 321 (1998).
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No. 72342-1-1/16
relevant and highly prejudicial evidence. Indeed, the relevance of this evidence
is questionable. The fact that Lodis did not think that this conduct, unlike the
conduct that he chose to oppose, was worth mentioning, suggests that evidence
of the conduct lacks probative value as to whether Lodis reasonably believed that
he was opposing discriminatory conduct on other occasions. In any case,
because the excluded evidence did not concern conduct that Lodis openly
opposed, it was far from the core of Lodis's claim that he was discharged in
retaliation for opposing discriminatory conduct.
Moreover, permitting Lodis to present unlimited evidence of alleged
discriminatory conduct by Shenk would have risked significant, unfair prejudice to
Corbis. Such evidence would have left the unfair—and purely collateral-
impression that Shenk was an ageist. Furthermore, permitting Lodis to present
such evidence would have risked jury confusion regarding whether this was
actually an age discrimination case, ratherthan the retaliation case that it was
promoted to be. At a minimum, the presentation ofthis evidence by Lodis, the
presentation of rebuttal evidence by Corbis, and the consideration ofthe sum
total of that evidence by the jury would have imposed undue cost, delay, and
inefficiency on the proceedings.
The trial court did not abuse its discretion by denying Lodis carte blanche
to introduce evidence of alleged discriminatory conduct, regardless of its
connection to his claim.
16
No. 72342-1-1/17
B
Lodis next asserts that the trial court erred by allowing Corbis to present
evidence of the first jury's verdict against Lodis on his age discrimination claim,
including the actual verdict form.
Pursuant to the "long-recognized" "open door" rule, "[generally, once a
party has raised a material issue, the opposing party is permitted to explain,
clarify, or contradict the evidence." State v. Berg, 147 Wash. App. 923, 939, 198
P.3d 529 (2008), abrogated on other grounds. State v. Mutch. 171 Wash. 2d 646,
254 P.3d 803 (2011). Our Supreme Court explained the rule's rationale thusly:
It would be a curious rule of evidence which allowed one party to
bring up a subject, drop it at a point where it might appear
advantageous to him, and then bar the other party from all further
inquiries about it. Rules of evidence are designed to aid in
establishing the truth. To close the door after receiving only a part
of the evidence not only leaves the matter suspended in air at a
point markedly advantageous to the party who opened the door, but
might well limit the proof to half-truths.
State v. Gefeller, 76 Wash. 2d 449, 455, 458 P.2d 17 (1969).
A review of the proceedings leading up to the pertinent trial court ruling is
illuminating.
Judge Heller initially ruled that the age discrimination verdict was
inadmissible. Corbis did not contest or otherwise object to the trial court's ruling,
conceding thatthe verdict was irrelevant to the issue ofwhether Corbis retaliated
against Lodis for having allegedly admonished Shenk for making age-based
comments. As the trial progressed, Lodis repeatedly introduced testimony
concerning alleged age discrimination about which he did not allegedly admonish
Shenk, in violation of the trial court's ruling. Indeed, even while upholding his
17
No. 72342-1-1/18
ruling that the age discrimination verdict was inadmissible, throughout the
proceedings, Judge Heller repeatedly cautioned Lodis that he was "taking a bit of
a risk" in persisting in his efforts to introduce additional evidence of alleged age
discrimination.
As a direct result of Lodis's insistence on introducing evidence that unfairly
left the jury with the implication that Shenk was biased against older workers,
Judge Heller reversed his prior ruling mid-trial and allowed Corbis to introduce
the age discrimination verdict in order to "protect" Corbis against any unfair
conclusion that Shenk had engaged in age discrimination. Specifically
recognizing that Lodis had introduced "quite a bit of evidence regarding age
within the context of the retaliation claim," Judge Heller reasoned that admission
of the prior jury verdict was necessary because Corbis was entitled "to be
protected from . . . [jury] 'shortcuts'. . . [inferring] that Mr. Shenk engaged in age
discrimination." In order to remedy any possible jury confusion resulting from the
introduction of the age discrimination evidence, the trial court gave the jury a
limiting instruction emphasizing that the focus of the trial was Lodis's retaliation
claim, not collateral allegations of age discrimination.
The trial court's ultimate ruling permitting Corbis to present evidence of the
first jury's verdict, in order to rebut Lodis's created implication that Shenk was an
"ageist," was both prudent and even-handed. The challenged ruling, which was
consistent with the "open door" rule, was not an abuse of the trial court's
discretion.
-18
No. 72342-1-1/19
Lodis next contends that the trial court erred by invoking the law of the
case doctrine to prevent him from presenting evidence with the goal of relitigating
the second jury's breach of fiduciary duty verdict. Relatedly, he contends that
evidence of the second jury's verdict was both irrelevant to Corbis's after-
acquired evidence defense and unfairly prejudicial. His contentions are
unavailing.
We apply the same principles of relevancy and prejudice summarized
above.
A
Lodis first asserts that the trial court erred by prohibiting him, based on the
law of the case doctrine, from relitigating the question of whether he breached a
fiduciary duty owed to Corbis.
The law of the case doctrine "is often confused with other closely related
doctrines." Roberson v. Perez, 156 Wash. 2d 33, 41, 123 P.3d 844 (2005), all of
which promote predictability, uniformity, consistency, finality, and efficiency in the
law, including stare decisis, collateral estoppel (i.e., issue preclusion), and res
judicata (i.e., claim preclusion). Because this case involves an attempt to
relitigate a prior claim, the doctrine most related to the law of the case as it
applies to these circumstances is res judicata.
A primer on the relationship between these doctrines is helpful.
Res judicata generally bars not only attempts to relitigate
matters actually litigated, but also all other matters that should have
been asserted in the earlier proceeding. In re Estate of Siebrasse.
[ ] 722 N.W.2d 86, 90 [(S.D. 2006)]. The "law of the case" doctrine,
-19
No. 72342-1-1/20
on the other hand, stands for the general rule that "a question of
law decided by the [appellate] court on a former appeal becomes
the law of the case, in all its subsequent stages, and will not
ordinarily be considered or reversed on a second appeal when the
facts and the questions of law presented are substantially the
same." jd. "The 'law of the case' doctrine is the weaker corollary of
the doctrines of res judicata, collateral estoppelf,] and stare decisis
and is intended to prove some degree of certainty where those
doctrines could not yet apply." id.
As we previously noted:
Although the principles of the law of the case doctrine
and res judicata are similar, their application differs.
The law of the case rule involves the effect of a
previous ruling within one action on a similar issue of
law raised subsequently within the same action. The
rules of res judicata apply to previous rulings in an
action on a similar determination in a subsequent
action,
jd. Thus, "[w]here successive appeals are taken in the same case
there is no question of res judicata, because the same suit, and not
a new and different one, is involved." Id.
"The 'law of the case' doctrine is intended to afford a
measure of finality to litigated issues." Grvnberg Exploration Corp.
v. Puckett, [ ] 682 N.W.2d 317, 322 [(S.D. 2004)]. This doctrine has
many policy considerations: "(1) to protect settled expectations of
the parties; (2) to insure uniformity of decisions; (3) to maintain
consistency during the course of a single case; (4) to effectuate the
proper and streamlined administration of justice; and (5) to bring
litigation to an end." In re Estate of Jetter. [ ] 590 N.W.2d 254, 258
[(S.D. 1999)]. We have cautioned, however, that "the 'law of the
case' [doctrine] should not be used to perpetuate an erroneous
decision[.]" Grvnberg. [ ] 682 N.W.2d at 322. Indeed, the doctrine
"is not a rigid rule, and will not be invoked on a second appeal if the
prior decision is palpably erroneous and if it is competent for the
court to correct it on the second appeal." Siebrasse, [ ] 722 N.W.2d
at 91. Furthermore, "a court may reopen a previously resolved
question if the evidence on remand is substantially different or if a
manifest injustice would otherwise result." ]d.
In re Pooled Advocate Trust, 813 N.W.2d 130, 139 (S.D. 2012) (some emphasis
added).
20
No. 72342-1-1/21
Thus, the essential difference between the doctrines is that the law of the
case doctrine applies to successive proceedings in the same case, whereas res
judicata is applicable to successive proceedings in different cases. See Pepper
v. United States. 562 U.S. 476, 506, 131 S. Ct. 1229, 179 L. Ed. 2d 196 (2011)
("'[A]s most commonly defined, the doctrine posits that when a court decides
upon a rule of law, that decision should continue to govern the same issues in
subsequent stages in the same case.'" (quoting Arizona v. California. 460 U.S.
605, 618, 103 S. Ct. 1382, 75 L. Ed. 2d 318 (1983)) (emphasis added))); Lusardi
v. Curtis Point Prop. Owners Ass'n. 86 N.J. 217, 226 n.2, 430 A.2d 881 (1981)
(The law ofthe case doctrine "applies only to proceedings prior to the entry ofa
final judgment. After that, rules of res judicata determine whether a prior
determination of law or fact is binding.").
"The law of the case principle relates to (a) the binding force of trial court
rulings during later stages of the trial, (b) the conclusive effects of appellate
rulings at trial on remand, and (c) the rule that an appellate court will ordinarily
not reconsider its own rulings of law on a subsequent appeal.'" Arceneaux v.
AmstarCorp., 66 So. 3d 438, 448 (La. 2011) (quoting Petition of Sewerage &
Water Bd. of New Orleans, 278 So. 2d 81, 84 (La. 1973)); accord Mun. of San
Juan v. Rullan. 318 F.3d 26, 29 (1st Cir. 2003) ("[The law of the case] doctrine
has two components: 'One branch involves the so-called mandate rule [ ]which,
with only a few exceptions, forbids, among other things, a lower court from
relitigating issues that were decided by a higher court, whether explicitly or by
reasonable implication, at an earlier stage of the same case[ ]. The other branch
21
No. 72342-1-1/22
. . . provides that unless corrected by an appellate tribunal, a legal decision made
at one stage of a civil or criminal case constitutes the law of the case throughout
the pendency of the litigation.'" (quoting Ellis v. United States, 313 F.3d 636, 646
(1st Cir. 2002)) (alteration in original)).
In Washington, the principles of the law of the case doctrine are
memorialized in the Rules of Appellate Procedure. Roberson. 156 Wash. 2d at 41;
State v. Worl. 129 Wash. 2d 416, 424, 918 P.2d 905 (1996) (describing RAP 2.5(c)
as "codifying the law of the case doctrine"). RAP 2.5, which relates to the scope
of appellate review, provides, in pertinent part:
(c) Law of the Case Doctrine Restricted. The following
provisions apply if the same case is again before the appellate
court following a remand:
(1) Prior Trial Court Action. If a trial court decision is
otherwise properly before the appellate court, the appellate court
may at the instance ofa party review and determine the propriety of
a decision of the trial court even though a similar decision was not
disputed in an earlier review of the same case.
(2) Prior Appellate Court Decision. The appellate court may
at the instance of a party review the propriety of an earlier decision
of the appellate court in the same case and, where justice would
best be served, decide the case on the basis of the appellate
court's opinion of the law at the time of the later review.
"By using the term 'may,' RAP 2.5(c)(2) is written in discretionary, rather
than mandatory, terms. The plain language of the rule affords appellate courts
discretion in its application." Roberson, 156 Wash. 2d at 42: see Folsom v. County
of Spokane, 111 Wash. 2d 256, 264, 759 P.2d 1196 (1988).
The same discretion is not afforded to the trial court on remand from the
appellate court. "'Upon the retrial, the parties and the trial court [are] all bound by
22
No. 72342-1-1/23
the law as made by the decision on the first appeal. On appeal therefrom, the
parties and this court are bound by that decision unless and until authoritatively
overruled.'" Bunn v. Bates. 36 Wash. 2d 100, 103, 216 P.2d 741 (1950) (quoting
Baxter v.Ford Motor Co.. 179 Wash. 123, 127, 35 P.2d 1090 (1934)). This
principle is reflected in RAP 12.2, relating to the procedure following issuance of
an appellate court decision, which provides, in relevant part:
Upon issuance of the mandate of the appellate court .... the
action taken or decision made by the appellate court is effective
and binding on the parties to the review and governs all subsequent
proceedings in the action in any court, . . . except as provided in
rule 2.5(c)(2). After the mandate has issued, the trial court may,
however, hear and decide postjudgment motions otherwise
authorized by statute or court rule so long as those motions do not
challenge issues already decided by the appellate court.
(Emphasis added.)
RAP 12.2 is consistent with the general principle that "'the decision of the
appellate court establishes the law ofthe case and it must be followed by the trial
court on remand.'" United States v. Rivera-Martinez. 931 F.2d 148, 150 (1st Cir.
1991) (quoting 1B J. Moore, J. Lucas, &T. Currier, Moore's Federal Practice
H0.404[1] (2d ed. 1991)): accord Nattah v. Bush. 770 F. Supp. 2d 193, 201
(D.D.C. 2011) ("Under the law ofthe case doctrine, [the trial court] may not revisit
any issues that it has previously resolved, nor may it re-evaluate the merits of
any disputes settled by the [appellate court] on appeal.").
Herein, Lodis sought to present evidence attacking a priorjury's verdict
finding that he breached his fiduciary duty. Relitigating the jury's verdict was the
only purpose for which the evidence was proffered. Importantly, Lodis had
already challenged that verdict in his first appeal to this court. At that time, we
-23
No. 72342-1-1/24
rejected Lodis's claims of error and affirmed the verdict. The jury's finding that
Lodis had breached a fiduciary duty owed to Corbis by failing to record vacation
time thus became the law of the case.
Because the law of the case doctrine prohibited Lodis from relitigating the
jury's verdict in the trial court, whether Lodis breached a fiduciary duty owed to
Corbis was not a fact at issue in the proceedings on remand. Therefore, the
evidence that Lodis sought to have admitted was not material. The trial court did
not abuse its discretion by excluding irrelevant evidence. To the contrary, it
properly declined Lodis's invitation to undermine both the jury's verdict and the
appellate court's mandate in contravention of the law of the case doctrine.
B
Lodis next asserts that the trial court erred "in admitting testimony
regarding the second jury verdict and ... the actual second jury's verdict on
Corbis' breach of fiduciary duty counter-claim." Br. of Appellant at 4.
Preliminarily, we note that Lodis's argument regarding the breach of
fiduciary duty verdict is muddled. At times, it is presented as inextricably linked
to Lodis's relitigation argument—that is, he seems to be arguing that, because he
should have been permitted to relitigate whether he had breached a fiduciary
duty owed to Corbis, the jury's verdict that he, in fact, did so lacks relevance.
Given our resolution of the immediately preceding issue, to the extent that Lodis
so argues, his claim fails.
At other times, Lodis seems make an argument similar to his argument
regarding the first jury's age discrimination verdict—that is, he argues that, even
24
No. 72342-1-1/25
though evidence of the misconduct that constituted a breach of his fiduciary duty
was admissible, evidence of the second jury's verdict, including the actual verdict
form, should not have been admitted in light of the principles of relevancy and
prejudice. This version of his argument was presented to the trial court.
After the trial court granted Corbis's motion precluding Lodis from
relitigating the breach of fiduciary duty claim, Lodis attempted to parse the jury's
finding that Lodis had failed to record vacation time from its verdict that he
breached a fiduciary duty owed to Corbis, arguing:
He [(Lodis)] cannot say that "I did not fail to record my vacation."
We accept that. That has nothing to do with whether or not they get
to hear breach of fiduciary duty. That's a whole separate issue
because it is only relevant on the issue of after-acquired evidence.
And it's not the breach that's relevant; it's the failure to record
because Shenk alone will say, "I would have fired him for that."
So I think that's pretty straightforward, Your Honor. They
don't get to say breach of fiduciary duty.
Lodis's argument fails to recognize that the fact that Lodis's failure to record
vacation time constituted a breach of a fiduciary duty owed to Corbis was
separately relevant to Corbis's after-acquired evidence defense.
"The 'after-acquired evidence' doctrine precludes or limits an employee
from receiving remedies for wrongful discharge if the employer later 'discovers'
evidence of wrongdoing that would have led to the employee's termination had
the employer known of the misconduct." Rivera v. NIBCO. Inc.. 364 F.3d 1057,
1070-71 (9th Cir. 2004) (quoting McKennon v. Nashville Banner Publ'g Co.. 513
U.S. 352, 360-63, 115 S. Ct. 879, 130 L. Ed. 2d 852 (1995)). An employer can
avoid back pay and other remedies by coming forward with after-acquired
evidence of an employee's misconduct, but only if it can prove by a
25
No. 72342-1-1/26
preponderance of the evidence "that the wrongdoing was of such severity that
the employee in fact would have been terminated on those grounds alone if the
employer had known of it at the time of the discharge." McKennon, 513 U.S. at
362-63) (emphasis added); accord Janson v. N. Valley Hosp.. 93 Wash. App. 892,
971 P.2d 67 (1999) (adopting after-acquired evidence defense as articulated in
McKennon).
Herein, the second jury found not only that Lodis had improperly failed to
record his vacation time, but also that this misconduct constituted a breach of a
fiduciary duty that he owed to Corbis. As the trial court noted, this second finding
significantly elevates the perceived seriousness of Lodis's misconduct.
Therefore, the jury's breach of fiduciary duty verdict against Lodis was
independently relevant to Corbis's after-acquired evidence defense, particularly
whether Lodis's misconduct was of "such severity" that Shenk would have
discharged him on that basis alone. Furthermore, given the sprawling nature of
the litigation herein, the trial court's effort to limit the issues by permitting
evidence of Lodis's misconduct to be presented in an abridged manner, in the
context of the jury's determination that he breached a fiduciary duty, was well-
founded.12
The trial court did not abuse its direction in admitting evidence of the
second jury's breach of fiduciary duty verdict.
12 The same concern for reigning in the proceedings in order to avoid juryconfusion
explains the trial court's decisions (1) to refuse to give an instruction on the elements ofbreach of
fiduciary duty (a claim that, after all, was not directly at issue therein), and (2) to limit the
presentation ofevidence regarding the claims that had been at issue in the second trial.
-26-
No. 72342-1-1/27
IV
Lodis next contends that the trial court erred by allowing the jury to
consider Corbis's "after-acquired evidence" affirmative defense. This is so, he
asserts, because "Corbis presented insufficient evidence for the after-acquired
evidence defense ... to be presented to the jury." His contention is unavailing.
CR 50(a)(1), regarding motions for judgment as a matter of law, provides:
If, during a trial by jury, a party has been fully heard with respect to
an issue and there is no legally sufficient evidentiary basis for a
reasonable jury to find or have found for that party with respect to
that issue, the court may grant a motion for judgment as a matter of
law against the party on any claim . . . that cannot under the
controlling law be maintained without a favorable finding on that
issue.
"Granting a motion for judgment as a matter of law is appropriate when,
viewing the evidence most favorable to the nonmoving party, the court can say,
as a matter of law, there is no substantial evidence or reasonable inference to
sustain a verdict for the nonmoving party." Sing v. John L. Scott. Inc.. 134 Wash. 2d
24, 29, 948 P.2d 816 (1997). "Such a motion can be granted only when it can be
said, as a matter of law, that there is no competent and substantial evidence
upon which the verdict can rest." State v. Hall. 74 Wash. 2d 726, 727, 446 P.2d 323
(1968). "Substantial evidence is said to exist if it is sufficient to persuade a fair-
minded, rational person of the truth of the declared premise." Brown v. Superior
Underwriters. 30 Wash. App. 303, 306, 632 P.2d 887 (1980).
When reviewing a motion for judgment as a matter of law, appellate courts
apply the same standard as the trial court. Guiiosa v. Wal-Mart Stores. Inc.. 144
Wash. 2d 907, 915, 32 P.3d 250 (2001).
-27
No. 72342-1-1/28
Lodis contends that he was entitled to judgment as a matter of law on
Corbis's after-acquired evidence defense.
As summarized above, pursuant to the after-acquired evidence defense,
an employer can avoid back pay and other remedies for wrongful discharge by
coming forward with evidence of an employee's misconduct that was acquired
after the discharge, but only if it can prove by a preponderance of the evidence
"that the employee in fact would have been terminated on those grounds alone if
the employer had known of it at the time of the discharge." McKennon, 513 U.S.
at 362-63.
In order to carry its burden, an employer is not required "to come forward
with proof that they discharged other employees for the precise misconduct at
issue (though such evidence would no doubt be helpful to their case)." O'Day v.
McDonnell Douolas Helicopter Co.. 79 F.3d 756, 762 (9th Cir. 1996). An
employer may prevail, for example, by proffering testimony that the employee
would have been terminated that is "corroborated both by the company policy,
which plausibly could be read to require discharge for the conduct at issue here,
and by common sense." O'Day, 79 F.3d at 762.
Here, Corbis presented substantial evidence based upon which the jury
could have rendered a verdict in its favor. Corbis's "Code of Conduct" expressly
"forbid[s] certain behaviors [] based on common sense guidelines," including (1)
"falsification or misrepresentation of company records . . . including]. . . time
reports"; (2) "[violation of any Corbis policy";13 and (3) "[a]ny activity that has an
13 Lodis's failure to record vacation time violated Corbis's time reporting policy.
-28-
No. 72342-1-1/29
adverse effect on the company's interests." Shenk testified that engaging in any
of these impermissible behaviors is a ground for termination at Corbis and that,
as such, he would have terminated Lodis when he learned of his failure to record
any vacation time.14 The fact that a prior jury found that Lodis's conduct
constituted a breach of his fiduciary duties of undivided loyalty and care
establishes that Lodis's actions were "adverse [to] the company's interests" and
underscores their severity and seriousness. Moreover, common sense suggests
that a CEO would terminate the highest ranking human resources officer—the
self-proclaimed "moral compass" of the company—and member of his executive
team upon discovering that the executive had failed to record a single hour of
vacation throughout the duration of his employment, despite taking more than 89
days off, in violation of the very policies he was responsible for enforcing.15
14 Shenk was unequivocal that he would have terminated Lodis.
Q: If Mr. Lodis had still been employed by Corbis in October of 2008 at the time
that you discovered these events, what would you have done?
A. I would have fired him.
15 Lodis makes three assertions in support of his contention to the contrary, none of
which are supported by the record.
First, he asserts that "Corbis's own witness, Vivian Farris, the senior vice president of
human resources (and Mr. Lodis's replacement) testified on direct that it was not "a terminable
offense" to fail to record vacation time, even though it was a violation of company policy." Br. of
Appellant at 47. However, the report of proceedings to which Lodis cites in support of this
assertion, if it exists, was not designated on appeal. Thus, we do not further address this
assertion. See Rhinevault v. Rhinevault. 91 Wash. App. 688, 692, 959 P.2d 687 (1998) ("[T]he
appellant bears the burden of complying with the Rules of Appellate Procedure [ ] and perfecting
his record on appeal so the reviewing court has before itall the evidence relevant to deciding the
issues before it. The court may decline to reach the merits of an issue if this burden is not met."
(citation omitted)).
Second, Lodis asserts that "[t]he evidence showed that Corbis knew . . . that others in
similar positions did the same thing." Br of Appellant at 47-48. In supportof this assertion, Lodis
cites to the trial court's letter ruling denying Lodis's pretrial CR 50 motion for judgment as a matter
of law on Corbis's defense. However, Lodis offers no support for the proposition that, at trial, he
presented any evidencethat people in positions similar to Lodis engaged in comparable
misconduct.
Finally, Lodis asserts that "[t]he evidenceshowed that Corbis knew .. . that Lodis was not
recording his vacation time, and that itdid not mention that as a basis for his termination or
withhold his vacation payout, see Ex. 108." Br. of Appellant 47. In fact, however, Lodis cites no
-29-
No. 72342-1-1/30
Because Corbis presented substantial evidence in support of its after-
acquired evidence defense, the trial court did not err by refusing to grant
judgment as a matter of law thereon in Lodis's favor.1617
Affirmed.
**?^ W
We concur:
/ * o;k c V 4
^ 6&.ZF.
evidence suggesting that Corbis was aware of Lodis's misconduct before his termination. The
exhibit upon which Lodis relies establishes that, after Lodis had been terminated, Mitchell,
Corbis's general counsel, was made aware that Lodis had failed to record significant vacation
time.
16 Related to this issue, Lodis also asserts that prejudicial character evidence of his
failure to report vacation time should not have been presented tothe jury. This argument
presumably hinges on his argument that he was entitled to judgment as a matter of law on
Corbis's defense, since the evidence isclearly relevant to that defense. To the extent that Lodis
is intending to argue that some particular evidence, though relevant to Corbis's defense, was
unfairly prejudicial, his argument fails because he does not assign error to any of the trial court's
evidentiary rulings. .
17 Lodis also assigns error to the trial court's denial of his motion for a new trial but does
not present argument relative to that assignment. Therefore, we do not further address this
claim. Skaait Countv Pub. Hqsp. Dist. No. 1 v. Dep't ofRevenue. 158 Wash. App. 426, 440, 242
P.3d 909 (2010) ("An appellant waives an assignment of error [by] fail[ing] to present argument or
citation to authority in support of that assignment.")
-30-