City Of Burien, V. Carol Allread ( 2024 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
CAROL ALLREAD, an individual, DIVISION ONE
Appellant, No. 84783-0-I
v. UNPUBLISHED OPINION
CITY OF BURIEN, a Washington City,
Respondent,
MARY EIDMANN,
Plaintiff.
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
1 Title 50A RCW.
No. 84783-0-I/2
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
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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
Discrimination2 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
2 Ch. 49.60 RCW.
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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
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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 councilmember. 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.
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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.
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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 in favor of the City on each claim. Allread thereafter filed a motion for a
new trial, which the trial court denied.
Allread appeals.
II
Allread challenges multiple evidentiary rulings of the trial court, asserting
that the court abused its discretion by excluding certain testimony. Specifically,
she contends that the trial court erred by excluding the testimony of Mary
Eidmann and limiting the scope of the testimony of Patricia Mejia, both former
City employees. Allread additionally asserts that the trial court abused its
discretion by excluding some testimony of former City councilmember Nancy
Tosta.
We disagree. Our review of these rulings is limited to determining whether
the trial court abused the broad discretion afforded to it in making such rulings.
Here, we conclude that the court did not. Recognizing the material differences
between Allread’s claims and the anticipated testimony of Eidmann and Mejia,
the trial court determined that the potential for unfair prejudice toward the City
outweighed the probative value of that testimony. The court additionally
determined that Allread had failed to provide a sufficiently specific offer of proof
for the proffered testimony of Tosta. Our review of the record indicates that the
court acted well within its discretion in making these rulings.
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“Admission of evidence lies within a trial court’s discretion.” Burnside v.
Simpson Paper Co., 123 Wn.2d 93, 107, 864 P.2d 937 (1994). Accordingly, we
review evidentiary decisions of the trial court for an abuse of discretion. Farah v.
Hertz Transporting, Inc., 196 Wn. App. 171, 181, 383 P.3d 552 (2016). The
abuse of discretion standard “recognizes that deference is owed to the judicial
actor who is ‘better positioned than another to decide the issue in question.’”
Wash. State Physicians Ins. Exch. & Ass’n v. Fisons Corp., 122 Wn.2d 299, 339,
858 P.2d 1054 (1993) (quoting Cooter & Gell v. Hartmarx Corp., 496 U.S. 384,
403, 110 S. Ct. 2447, 110 L. Ed. 2d 359 (1990)).
“A trial court abuses its discretion when its decision ‘is manifestly
unreasonable or based upon untenable grounds or reasons.’” Salas v. Hi-Tech
Erectors, 168 Wn.2d 664, 668-69, 230 P.3d 583 (2010) (quoting State v.
Stenson, 132 Wn.2d 668, 701, 940 P.2d 1239 (1997)). “‘A trial court’s decision is
manifestly unreasonable if it adopts a view that no reasonable person would
take.’” Hi-Tech Erectors, 168 Wn.2d at 669 (internal quotation marks omitted)
(quoting In re Pers. Restraint of Duncan, 167 Wn.2d 398, 402-03, 219 P.3d 666(2009)). “‘A decision is based on untenable grounds or for untenable reasons if
the trial court applies the wrong legal standard or relies on unsupported facts.’”
Hi-Tech Erectors, 168 Wn.2d at 669 (quoting Duncan, 167 Wn.2d at 402-03).
A
Allread first asserts that the trial court abused its discretion by excluding
Eidmann’s proffered testimony and limiting the scope of Mejia’s testimony. This
is not so. The trial court ruled, consistent with the prior severance ruling, that the
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danger of unfair prejudice to the City outweighed the probative value of
Eidmann’s proffered testimony. On this same basis, the court limited the scope
of Mejia’s testimony. In so ruling, the trial court acted within its broad discretion
to make such evidentiary rulings.
“Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of time,
or needless presentation of cumulative evidence.” ER 403. Evidence is
“probative” when it tends to prove or disprove some fact at issue in the case.
Bengtsson v. Sunnyworld Int’l, Inc., 14 Wn. App. 2d 91, 105, 469 P.3d 339(2020). “In determining whether evidence should be excluded under ER 403,
trial courts are afforded broad discretion ‘in balancing the prejudicial impact of
evidence against its probative value.’” Bengtsson, 14 Wn. App. 2d at 107-08
(quoting Kramer v. J.I. Case Mfg. Co., 62 Wn. App. 544, 559, 815 P.2d 798(1991)).
Here, Allread asserts that the trial court erred in excluding evidence
regarding the City’s alleged treatment of Eidmann and Mejia. The former City
employees were expected to testify regarding purported discrimination and
retaliation by the City in response to their disabilities and use of medical leave.
According to Allread, the proffered evidence was relevant to demonstrate the
City’s unlawful motivation in terminating her own employment. She contends that
the trial court abused its discretion in concluding that the potential prejudice to
the City outweighed the probative value of such evidence. We disagree.
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“Trial judges have ‘wide discretion in balancing the probative value of
evidence against its potential prejudicial impact.’” Bengtsson, 14 Wn. App. 2d at
99 (quoting Cole v. Harveyland, LLC, 163 Wn. App. 199, 213, 258 P.3d 70(2011)). Here, the trial court concluded that the potential of unfair prejudice to
the City outweighed the probative value of the proffered evidence. Allread
intended to elicit testimony from Eidmann that she “felt discriminated against” by
the City due to her need for medical leave. However, as the trial court found,
Eidmann’s allegations were materially dissimilar from those of Allread. Unlike
Allread, Eidmann alleged that the City had failed to make reasonable
accommodations for her disability. Such a claim requires consideration of a
plaintiff’s ability to perform her job duties and the sufficiency of the
accommodations provided—neither of which are pertinent to Allread’s PFMLA
claim. Mejia was similarly expected to testify that she believed she had been
discriminated against by the City due to her disability. Thus, unlike Allread,
neither Eidmann nor Mejia had utilized family leave to care for a family member.
Furthermore, different supervisors were responsible for the pertinent layoff
decisions.
In light of the dissimilarities between Allread’s allegations and the
proffered evidence, the trial court concluded that the admission of the testimony
would be unfairly prejudicial to the City because it would encourage the jury to
make an “improper inference” regarding the City’s culpability. Significantly, this
ruling is consistent with the court’s prior ruling, entered by a different trial judge,
severing Eidmann’s and Allread’s actions against the City. There, the court
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determined that the claims had “little overlap” and were “quite different.” In
severing the actions, the court ruled that allowing Eidmann’s claims and Allread’s
claims to be presented before the same fact finder would “send the message that
[the City] . . . must have committed wrongdoing,” thus resulting in unfair
prejudice. In disallowing certain testimony of Eidmann and Mejia, the trial court
similarly determined that the admission of such testimony—particularly in light of
its minimal probative value—would result in unfair prejudice to the City. The
court did not abuse its considerable discretion by so ruling.
Allread’s assertions to the contrary are unavailing. Indeed, on appeal,
Allread nowhere addresses the prejudicial nature of the proffered evidence, with
the exception of a bald assertion that its probative value “outweighs any potential
prejudice.”3 Allread’s contention that the trial court failed to balance the probative
value of the evidence with its prejudicial impact is similarly without merit.
Contrary to this assertion, the trial court considered that Eidmann’s allegations
are “[s]eparate” from and “unrelated” to Allread’s claims, thus rendering
Eidmann’s testimony of minimal probative value. On the same basis, the trial
court sustained the City’s objections to similar testimony elicited of Mejia. In light
of the minimal probative value of the proffered evidence, the court determined
that the admission of the testimony would be unfairly prejudicial to the City.
Thus, contrary to Allread’s assertion, the trial court balanced the probative value
against the potential prejudicial impact of the evidence in excluding certain
testimony by Eidmann and Mejia.
3 Br. of Appellant at 29.
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Moreover, in asserting that such testimony has been deemed universally
admissible by our Supreme Court, Allread misconstrues the decisional authority
on which she relies. See Brundridge v. Fluor Fed. Servs., Inc., 164 Wn.2d 432,
191 P.3d 879 (2008). In Brundridge, our Supreme Court addressed whether the
trial court had abused its discretion by admitting testimony regarding the prior
bad acts of an employer pursuant to ER 404(b). The court therein explained that
“[i]n the context of wrongful discharge in violation of public policy, evidence of an
employer’s motive or intent to retaliate is relevant to assertions that . . . the
employer does not have a legitimate justification for the discharge.” Brundridge,
164 Wn.2d at 445-46. However, the court nowhere held that such evidence,
simply because it is relevant, is necessarily admissible. Indeed, the court
ultimately concluded that the evidence proffered therein “had minimal probative
value” and “had the potential to prejudice the jury by leading them to believe that
[the employer] was a ‘bad company’ in general.” Brundridge, 164 Wn.2d at 447.4
Thus, our Supreme Court’s opinion in Brundridge is fully consistent with the trial
court’s exclusionary ruling here.
In excluding certain testimony by former City employees Eidmann and
Mejia, the trial court determined that the minimal probative value of the proffered
evidence was outweighed by its potential prejudicial impact. In so ruling, the
court properly considered the dissimilarities between Allread’s claims and the
allegations of Eidmann and Mejia. Additionally, the court properly considered the
4 There, the court concluded that, because the jury had “ample reason to question” the
employer’s safety record, any error in admitting the testimony was harmless. Brundridge, 164
Wn.2d at 447.
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No. 84783-0-I/13
potential for unfair prejudice against the City, weighing that potential against the
minimal probative value of the evidence. We do not find on this record that the
trial court abused its considerable discretion in making these evidentiary rulings.
B
Allread next contends that the trial court abused its discretion by excluding
certain testimony of former City councilmember Nancy Tosta. Specifically,
Allread asserts that the court erroneously excluded purported “rebuttal” testimony
concerning Wilson’s character. She additionally contends that the trial court
erred by disallowing testimony from Tosta regarding occurrences at executive
session meetings of the City council. We disagree. The trial court did not abuse
its discretion by ruling that a sole mention of Wilson’s “professionalism” had not
rendered admissible general character evidence concerning Wilson. In addition,
the court properly excluded testimony regarding executive session meetings for
which Allread had not provided a specific offer of proof. In making these rulings,
the court did not err.
The trial court’s rulings were preceded by extensive briefing and argument
by the parties, the substance of which is necessary to understand the court’s
decisions. As relevant to Tosta’s testimony, the City sought in a motion in limine
to exclude both “reputation” opinion evidence and evidence regarding privileged
communications and the opinions of elected officials, such as Tosta. The trial
court granted the City’s motion with regard to privileged communications but
reserved for hearing the motion seeking to exclude opinion evidence from
elected officials.
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Following the hearing, the trial court explained that it would not exclude
Tosta’s testimony based on the record available at the time. The court requested
from Allread “a more specific offer of proof,” explaining: “I want to be able to
understand and give meaningful guidance to you all about what [Tosta is] going
to be able to say and what she’s not going to be able to say. And I just need
more information to do that.” The court thus denied without prejudice the City’s
motion to exclude the testimony.
Four days into the presentation of testimony, Allread requested an order
permitting testimony of Tosta to which, Allread averred, the City had “opened the
door” through other witness testimony. Allread asserted that testimony by the
City’s human resources director, Cathy Schrock, had “directly placed Mr.
Wilson’s professionalism at issue.” The testimony, which occurred during direct
examination of Schrock by Allread’s counsel, was as follows:
Q. And you’re aware that Ms. Allread testified that Mr. Wilson
started the meeting by saying, “Carol this meeting isn’t going to go
well for you”?
A. And I would disagree that that was said.
Q. You disagree that she testified to that?
A. I disagree that that’s what Mr. Wilson said. I’ve – it’s just not a
professional response that I expect [of] Mr. Wilson and have
witnessed for over 25 years.
Allread additionally sought to introduce Tosta’s testimony regarding “actions by
Mr. Wilson that occurred during Executive Session related to Ms. Allread and her
case.” The City, in response, sought an order excluding such testimony.
The trial court addressed the parties’ competing motions at an October 18,
2022 hearing. Allread explained that Tosta would testify that “something
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happened” in an executive session meeting of the City council that “occurred
after the filing of the lawsuit” and in the presence of the city attorney. She further
explained that Tosta would “testify that her interactions with Mr. Wilson were
unprofessional” and that “he was disrespectful and offensive to her and others.”
With regard to evidence concerning Wilson’s “professionalism,” the trial
court ruled that Schrock’s sole statement that she had witnessed a “professional
response” from Wilson “for over 25 years” did not render general character
evidence admissible. Schrock’s testimony, the court ruled, was “more narrow
and specific to the context of the questions that [Allread’s counsel] was asking
her.” The trial court additionally ruled that Allread had not provided a sufficiently
specific offer of proof regarding the executive session testimony. The court
explained:
Ultimately what I have here is a request to make a decision on what
I believe is an inadequate record. . . . [I]t’s really an inadequate
record to be able to say that Ms. Tosta can come here and give
certain testimony, because I don’t even know what she’s going to
say.
The court noted that the proffered testimony was “to this point literally
undisclosed.” It explained:
I’m not going to allow [Tosta] to come up and just be examined and
all of us sit here for the first time with the jury and be conducting
discovery in the middle of a trial and all of us, like, figuring out what
she’s going to say and then, you know, I just – I don’t find that to be
appropriate.
Thus, the court excluded testimony by Tosta regarding occurrences at the
executive session meeting.
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1
On appeal, Allread first asserts that the trial court abused its discretion by
excluding evidence regarding Wilson’s character. Allread avers that Schrock’s
testimony that she had observed a “professional response” by Wilson rendered
such evidence admissible. We disagree. The court acted well within its
discretion in determining that this sole statement by Schrock did not render
admissible more general testimony regarding Wilson’s character. Because the
court’s ruling is in accord with the pertinent evidentiary rules, we find no error.
Evidence Rule 404(a) provides that, subject to the exceptions listed
therein, “[e]vidence of a person’s character or a trait of character is not
admissible for the purpose of proving action in conformity therewith on a
particular occasion.” The rule sets forth the circumstances in which character
evidence of the accused or the victim of a crime is admissible in criminal matters.
ER 404(a)(1), (2). In civil cases, however, “[t]he general rule under Rule 404(a)”
is that character evidence is not admissible “as evidence that the person was
likely to have acted in conformity with that character on a particular occasion.” 5
KARL B. TEGLAND, W ASHINGTON PRACTICE: EVIDENCE LAW AND PRACTICE § 404.3,
at 478-79 (6th ed.2023). Rather, pursuant to the rule, “the circumstantial use of
character evidence in a civil case is limited to impeachment under Rules 607,
608, and 609.” 5 TEGLAND, supra, at 478. As relevant here, the rules provide that
“[t]he credibility of a witness may be attacked or supported by evidence in the
form of reputation,” although such evidence “may refer only to character for
truthfulness or untruthfulness,” and “evidence of truthful character is admissible
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No. 84783-0-I/17
only after the character of the witness for truthfulness has been attacked by
reputation evidence or otherwise.” ER 608(a).
Here, Allread sought to elicit testimony by Tosta that “her interactions with
Mr. Wilson were unprofessional” and that “he was disrespectful and offensive to
her and others.” The trial court excluded such testimony, rejecting Allread’s
assertion that a sole mention of Wilson’s “professional response” in other witness
testimony rendered the proffered evidence admissible. On appeal, Allread
asserts that the testimony is admissible pursuant to ER 404(a)(1), which provides
that character evidence to demonstrate conformity therewith is admissible when
“offered by an accused, or by the prosecution to rebut the same.” However, this
is not a criminal matter. Accordingly, ER 404(a)(1) is inapplicable. See 5
TEGLAND, supra, at 478-79.
Allread does not cite to the pertinent rule, ER 608(a), which provides an
exception to ER 404(a)’s general rule of character evidence inadmissibility.
However, in any event, the rule does not support Allread’s claim of error.
Pursuant to the rule, character evidence may be admitted to attack or support the
credibility of a witness, although such evidence is limited to the witness’s
“character for truthfulness or untruthfulness.” ER 608(a). Here, Allread did not
seek, through the proffered testimony, to attack Wilson’s credibility. Nor did the
proffered evidence pertain to Wilson’s “truthfulness or untruthfulness.” ER
608(a). Rather, Allread sought to introduce evidence that Wilson was
“unprofessional” and had been “disrespectful and offensive.” Thus, the proffered
testimony is not admissible pursuant to the pertinent evidentiary rule.
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“A party seeking to admit evidence bears the burden of establishing a
foundation for that evidence.” State v. Land, 121 Wn.2d 494, 500, 851 P.2d 678(1993). Here, Allread failed to do so. Accordingly, the trial court did not abuse its
discretion by excluding the proffered character evidence.
2
Allread additionally asserts that the trial court erroneously excluded
testimony by Tosta concerning occurrences at an executive session meeting of
the City council. Again, we disagree.
Allread contends that the court abused its discretion by excluding the
proffered testimony because, she avers, “there is no recognized Executive
Session evidentiary privilege.”5 However, whether such a privilege is extant was
not the basis for the trial court’s exclusionary ruling. Rather, the court
determined that the record was inadequate to permit Tosta’s testimony, which
was “literally undisclosed.” The court—which had requested, but never received,
“a more specific offer of proof”—explained that admitting the proffered testimony
on the inadequate record provided would be akin to “conducting discovery in the
middle of [the] trial” and in the presence of the jury.
As the party seeking to admit Tosta’s testimony, Allread bore the burden
of establishing a foundation for that evidence. Land, 121 Wn.2d at 500. Again,
she failed to do so. The trial court’s decision to exclude the “undisclosed”
testimony was neither manifestly unreasonable nor based on untenable grounds
or reasons. See Hi-Tech Erectors, 168 Wn.2d at 668-69. Accordingly, the trial
5 Br. of Appellant at 65.
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court did not abuse its discretion by so ruling.6
III
Allread additionally challenges the trial court’s denial of her request for a
spoliation instruction directing the jury to infer that purportedly destroyed
evidence would have been unfavorable to the City. According to Allread, such an
instruction was warranted due to Wilson’s testimony that he had discarded some
handwritten notes taken in his capacity as city manager. Again, we disagree.
Allread demonstrated neither that the discarded notes were relevant to the
termination of her employment nor that the City possessed culpability for the
destruction of any evidence. Accordingly, the trial court properly determined that
a spoliation instruction was not warranted.
“When a party intentionally withholds or destroys evidence, the trial court
may issue a spoliation instruction for the jury to draw an inference that the
missing evidence would be unfavorable to the party at fault.” Henderson v.
Thompson, 200 Wn.2d 417, 441, 518 P.3d 1011 (2022), cert. denied, 143 S. Ct.
2412 (2023). To determine whether a sanction is warranted, “[c]ourts consider
the potential importance or relevance of the missing evidence and the culpability
of the adverse party.” Henderson, 200 Wn.2d at 441. No spoliation sanction is
warranted when a party negligently fails to preserve evidence relevant to
foreseeable litigation. Carroll v. Akebono Brake Corp., 22 Wn. App. 2d 845, 875,
6 Although neither party cited to the pertinent local rules, we additionally note that the trial
court’s exclusion of this testimony is consistent with those rules. Specifically, King County
Superior Court Rule 26(k)(3)(B) requires that each party provide a brief description of the relevant
knowledge of each lay witness whom the party discloses as a witness for trial. With regard to
testimony concerning the executive session meeting, Allread failed to do so here.
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514 P.3d 720 (2022), review denied, 200 Wn. 2d 1023 (2023). The severity of
the destruction of evidence determines the appropriate remedy. Henderson v.
Tyrrell, 80 Wn. App. 592, 605, 910 P.2d 522 (1996). “We review a trial court’s
decisions regarding sanctions for discovery violations for abuse of discretion.”
Homeworks Constr., Inc. v. Wells, 133 Wn. App. 892, 898, 138 P.3d 654 (2006).
During pretrial proceedings, Allread requested a ruling that the City had
intentionally destroyed relevant evidence and, thus, had engaged in spoliation.
Allread asserted that Wilson’s deposition testimony, in which he stated that he
had destroyed personal notes taken around the time of the termination of her
employment, warranted “an adverse inference [jury] instruction as to [the notes’]
contents regarding Mr. Wilson’s motives in retaliating against, interfering with,
and terminating Ms. Allread.” The trial court explained that it would not preclude
the presentation of evidence regarding the destruction of Wilson’s notes, but that
it would not rule “in limine whether [it was] going to give a spoliation instruction.”
Wilson thereafter testified at trial that, as city manager, he had at times
made handwritten notes pertinent to his work and that he had “probably” made
some notes regarding budgetary decisions. Wilson testified that he had
destroyed some such notes subsequent to the filing of Allread’s lawsuit against
the City. However, he explained that he was aware of his obligation to preserve
documents “[p]ertaining to Ms. Allread,” and that he had not destroyed any notes
that he had reason to believe would be relevant to her claims. Allread thereafter
filed a renewed motion seeking a spoliation instruction. She asserted that, given
Wilson’s testimony, it was “reasonable” to believe that he would have taken notes
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No. 84783-0-I/21
related to the termination of her employment.
The trial court denied Allread’s motion. In so ruling, the court explained
that it was solely “speculation” that Wilson’s notes contained information relevant
to the termination of Allread’s employment. The court characterized Allread’s
motion as a request “to tell [the] jury to make a specific negative inference about
a specific thing that was not actually testified to.” Describing Wilson’s testimony,
the court explained:
I heard you asking [Wilson] a very broad question about taking
notes and would budget stuff have been in the notes. And I heard
him be very straightforward about it, “Yep. There would have been
budget stuff. Wasn’t anything related to Allread.” . . . [T]here wasn’t
any probing, any peeling back of the onion layers, any level of
specificity with the questioning around what was in those notes.
Thus, the court ruled that Allread had provided no foundation on which a
spoliation instruction could be properly presented to the jury.
We find no error in the trial court’s ruling. In evaluating whether
sanctionable spoliation had occurred, the court properly considered “the potential
importance or relevance of the [purported] missing evidence.” Henderson, 200
Wn.2d at 441. As the court found, the record is devoid of any indication that
Wilson destroyed notes pertaining to the termination of Allread’s employment.
Indeed, Wilson testified that he had not destroyed any such notes. On this
record, an instruction directing the jury to infer that Wilson’s discarded notes
contained information adverse to the City’s position would be wholly
inappropriate. Thus, the trial court did not err by denying Allread’s request for
such an instruction.
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No. 84783-0-I/22
IV
Allread next asserts that the trial court erroneously denied her motion for a
directed verdict as to her claim of PFMLA retaliation. According to Allread, the
City’s presentation of the separation agreement constituted retaliation for
asserting her rights pursuant to the PMFLA. We disagree. Allread has not
demonstrated that, as a matter of law, the challenged provision of the agreement
constitutes a retaliatory action in response to the assertion of her rights. Thus,
the trial court properly denied her motion for a directed verdict.
Judgment as a matter of law may be granted only if “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.” CR 50(a). When ruling on such a motion, the court must consider the
evidence in the light most favorable to the nonmoving party. Demelash v. Ross
Stores, Inc., 105 Wn. App. 508, 528, 20 P.3d 447 (2001). We review de novo a
ruling on a motion for a directed verdict. Demelash, 105 Wn. App. at 528.
Washington’s PFMLA provides that
[i]t is unlawful for any person to discharge or in any other manner
discriminate against any employee because the employee has:
(a) Filed any complaint, or has instituted or caused to be
instituted any proceeding, under or related to this title;
(b) Given, or is about to give, any information in connection
with any inquiry or proceeding relating to any right provided under
this title; or
(c) Testified, or is about to testify, in any inquiry or
proceeding relating to any right provided under this title.
RCW 50A.40.010(2).
Here, Allread contends that she was entitled to judgment as a matter of
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No. 84783-0-I/23
law on her PFMLA retaliation claim based on the separation agreement
presented to her by the City on July 24, 2022. Pursuant to the proposed
agreement, the City offered to Allread the equivalent of two months’ salary. The
agreement also included a release of claims against the City arising out of
Allread’s employment. In addition, as relevant to Allread’s claim of error here,
paragraph 4 of the agreement provided: “As further consideration, if Carol Allread
applies for unemployment compensation benefits, Burien will not contest her
application unless she claims that discrimination, harassment, retaliation, or other
unlawful conduct was the reason for her lay off.”
Allread asserts that this provision of the separation agreement constitutes
retaliation in violation of the PFMLA.7 According to Allread, the provision violates
the act “by contesting her unemployment benefits because she was about to give
information in connection with her unemployment proceeding, and/or testify in an
unemployment hearing, about her belief that she was retaliated against and
ultimately targeted for job separation because of her request for and use of
PFMLA leave.”8 We disagree.
To be entitled to a directed verdict on her retaliation claim, Allread must
demonstrate that the evidence established as a matter of law that she had
“[g]iven, or [was] about to give, any information in connection with [an] inquiry or
proceeding” relating to rights provided by the PFMLA or that she had “[t]estified,
or [was] about to testify, in [an] inquiry or proceeding” related to such rights.
7 Allread did not sign the separation agreement.
8 Br. of Appellant at 37.
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No. 84783-0-I/24
RCW 50A.40.010(2)(b), (c). These are factual matters, however, that are without
support in the record. Indeed, Allread presented no evidence that the City
presented her with the separation agreement because she asserted, or was
about to assert, her rights pursuant to the PFMLA.
Moreover, the separation agreement does not state that the City would
contest Allread’s unemployment benefits; rather, it states that, as consideration
for Allread signing and not revoking the agreement, the City would not contest
such benefits. Only if Allread claimed “that discrimination, harassment,
retaliation, or other unlawful conduct was the reason for her lay off” did the City
reserve the right to defend itself against such allegations. This provision must be
read in the context of the agreement as a whole. See Starr Indem. & Liab. Co. v.
PC Collections, Inc., 25 Wn. App. 2d 382, 400, 523 P.3d 805, review denied, 1
Wn. 3d 1032 (2023) (“When interpreting a contract, we view the contract as a
whole, interpreting particular language in the context of other contract
provisions.”). In other words, it must be read in the context of the subsequent
paragraph of the agreement providing for a release of such claims against the
City. When reading the separation agreement as a whole, as we must do, it is
clear that paragraph 4 is not a retaliatory action in response to any assertion of
rights pursuant to the PFMLA. Rather, the intent of the provision is to allow the
City to defend itself against claims that, had Allread signed the proposed
agreement, she would have agreed not to assert.
Allread has not established that, as a matter of law, paragraph 4 of the
proposed separation agreement constitutes retaliation for asserting her rights
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No. 84783-0-I/25
pursuant to the PFMLA. Accordingly, the trial court did not err by denying
Allread’s motion for a directed verdict on that claim.9
V
Allread further asserts that the trial court erred by denying her motion for a
new trial. She contends that she is entitled to a new trial because, she avers, the
jury verdict on her claim of PFMLA retaliation is contrary to law. We disagree.
As discussed herein, the separation agreement provided to Allread by the City
does not, as she contends, constitute per se retaliation in violation of the PFMLA.
We decline to review Allread’s additional contention, raised for the first time in
her reply brief on appeal, that she is entitled to a new trial due to purported racial
bias.
“As a general rule, the trial court’s decision to grant or deny a motion for a
new trial will not be disturbed on appeal absent a showing of a clear abuse of
discretion.” Cox v. Gen. Motors Corp., 64 Wn. App. 823, 826, 827 P.2d 1052(1992). “To determine whether the trial court has abused its discretion in denying
a motion for a new trial, we determine whether ‘such a feeling of prejudice [has]
9 Allread asserts for the first time in her reply brief on appeal that the separation
agreement constitutes retaliation in violation of the PFMLA pursuant to RCW 49.44.211. The
statute provides that
[a] provision in an agreement by an employer and an employee not to disclose or
discuss conduct, or the existence of a settlement involving conduct, that the
employee reasonably believed under Washington state, federal, or common law
to be illegal discrimination, illegal harassment, illegal retaliation, a wage and hour
violation, or sexual assault, or that is recognized as against a clear mandate of
public policy, is void and unenforceable.
RCW 49.44.211(1).
We do not review issues raised for the first time in a reply brief on appeal. See, e.g.,
Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
Accordingly, we decline to address the merits of this assertion. We note, however, that the
statute on which Allread relies was not enacted until June 2022, nearly two years after the City
presented Allread with the separation agreement.
25
No. 84783-0-I/26
been engendered or located in the minds of the jury as to prevent a litigant from
having a fair trial.’” Bengtsson, 14 Wn. App. 2d at 100 (alteration in original)
(internal quotation marks omitted) (quoting Alum. Co. of Am. v. Aetna Cas. & Ins.
Co., 140 Wn.2d 517, 537, 998 P.2d 856 (2000)). When the reason asserted for a
new trial “was predicated upon an issue of law,” we review the record “for error in
application of the law rather than for abuse of discretion.” Cox, 64 Wn. App. at
826.
Here, Allread asserts that the jury verdict on her claim of PFMLA
retaliation is contrary to the law. She contends that each of the jury’s verdicts
must therefore be vacated because, she avers, “[t]he jury could not consider the
validity of the other claims without proper guidance on this retaliation claim.”10
Allread’s assertion is without merit. As discussed above, Allread was not entitled
to judgment as a matter of law on her claim of PFMLA retaliation. Thus, contrary
to her assertion, the jury was not compelled to find that the City had engaged in
per se retaliation based on paragraph 4 of the proposed separation agreement.
Accordingly, the trial court did not err by denying Allread’s motion for a new trial.
Allread additionally asserts, for the first time in her reply brief on appeal,
that she is entitled to a new trial based on purported racial bias that, she avers,
resulted in an unfair trial. Allread contends that “the City’s Response Brief
raise[d] a new ground for a new trial” because the briefing misspelled the name
of former City employee Patricia Mejia.11 According to Allread, trial counsel for
10 Br. of Appellant at 69.
11 Reply Br. of Appellant at 32.
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No. 84783-0-I/27
the City mispronounced Mejia’s name throughout her testimony, which, Allread
asserts, indicates implicit racial bias. She contends that the purported
mispronunciation constitutes “[m]isconduct of [the] prevailing party” that entitles
her to a new trial. See CR 59(a)(2). Allread’s argument, however, is neither
timely nor reviewable on the record before us.
“A reply brief is generally not the proper forum to address new issues
because the respondent does not get an opportunity to address the newly raised
issues.” City of Spokane v. White, 102 Wn. App. 955, 963, 10 P.3d 1095 (2000).
Accordingly, “[a]n issue raised and argued for the first time in a reply brief is too
late to warrant consideration.” Cowiche Canyon Conservancy v. Bosley, 118
Wn.2d 801, 809, 828 P.2d 549 (1992). Allread did not allege misconduct by the
City or implicit racial bias in either the trial court or in her opening brief on appeal.
Because these arguments were raised for the first time in Allread’s reply brief, we
decline to review them.
However, we note that, even had Allread’s argument regarding racial bias
been timely raised, she has failed to provide any record on which we could
evaluate her assertion. The transcript of trial proceedings, not being an audio
file, cannot demonstrate whether counsel for the City mispronounced Mejia’s
name at trial. Thus, we are left only with Allread’s word to support her assertion.
To provide us with the necessary record to review her argument, Allread was
required to first raise this issue in the trial court. “[A]ppellate courts are not fact-
finders.” Dalton M, LLC v. N. Cascade Trustee Servs., Inc., No. 101149-1, slip
op. at 21 (Wash. Aug. 31, 2023),
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No. 84783-0-I/28
https://www.courts.wa.gov/opinions/pdf/1011491.pdf. As our Supreme Court has
recognized, “[i]njection of a brand-new issue that is akin to an unpleaded claim at
the appellate level creates problems for a reviewing court because the record will
likely lack factual development related to that new issue.” Dalton M, No. 101149-
1, slip op. at 19. Indeed, it is so here.
We find no error in the trial court’s denial of Allread’s motion for a new
trial.
Affirmed.12
WE CONCUR:
12 Both Allread and the City request an award of attorney fees on appeal. As Allread is
not the prevailing party on appeal, she is not entitled to such an award. See RCW 50A.40.040(3)
(providing for an award of attorney fees to “the prevailing plaintiff” in a PFMLA action). The City,
in its request for an award of fees, fails to identify a basis in law, contract, or equity for such an
award, as required by RAP 18.1(b). Wilson Court Ltd. P’ship v. Tony Maroni’s, Inc., 134 Wn.2d
692, 710 n.4, 952 P.2d 590 (1998) (citing Austin v. U.S. Bank of Wash., 73 Wn. App. 293, 313,
869 P.2d 404 (1994)). Because the City fails to make “more than a bald request for attorney fees
on appeal,” it is not entitled to such an award pursuant to RAP 18.1. Wilson Court Ltd. P’ship,
134 Wn.2d at 710 n.4 (citing Thweatt v. Hommel, 67 Wn. App. 135, 148, 834 P.2d 1058 (1992)).
Accordingly, we decline to grant an award of attorney fees to either party.
28