Hassan Farah v. Hertz Transporting, Inc.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
HASSAN FARAH, an individual, ILEYS r>o
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OMAR, an individual, MARIAN MUMIN, No. 73268-4-1 C2~>
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an individual, DAHIR JAMA, an r->
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individual, FOUZIA M. MOHAMUD, an DIVISION ONE C" _
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individual, MARIAN ALI, an individual, GO r>- -
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ABDIZIZ ABDULLE, an individual, PUBLISHED OPINION 23* c/>r
SAALIM ABUBKAR, an individual, _u,
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MOHAMED ISMAIL, an individual,
SUDI HASHI, an individual, HALI o 3*"'-
ABDULLE, an individual, MURAYAD
ABDULLAHI, an individual, ZAINAB
AWEIS, an individual, FARDOWSA
ADEN, an individual, MARYAN MUSE,
an individual, ASLI MOHAMED, an
individual, SAHRA GELLE (a/k/a Hani
Huseen), an individual, ASHA FARAH,
an individual, ALI ADAM ABDI, an
individual, MUNA MOHAMED, an
individual, FARAH GEEDI, an individual,
AHMED HASSAN HUSSEIN, an
individual, IBRAHIM SALAH, an
individual, AHMED A. HIRSI, an
individual, and MOHAMUD A. HASSAN,
an individual,
Appellants,
v.
HERTZ TRANSPORTING, INC., MATT
HOEHNE, and TODD HARRIS,
Respondents. FILED: October 3, 2016
Trickey, J. — Hassan Farah and other plaintiffs sued Hertz Transporting,
Inc. for employment discrimination. The jury returned a defense verdict. Farah
moved for a new trial, which the court denied. On appeal, Farah argues that the
trial court should have instructed the jury on pretext. We hold that this instruction
No. 73268-4-1 / 2
would have been appropriate but was not necessary. Farah's other claims do not
require reversal. We affirm the trial court.
FACTS
Hassan Farah and 24 other Somali immigrants, who are practicing Muslims,
worked as "shuttlers" for Hertz Transporting at Seattle-Tacoma International
Airport (Sea-Tac). "Shuttlers" move rental vehicles around the grounds, for
example, from where customers return the cars to locations for cleaning or
maintenance.
In September 2011, Hertz implemented a break policy for its shuttlers,
requiring them to "punch" out for all personal activities, including prayer. The
parties dispute whether employees were required to punch out for prayer before
this new policy. They agree that no one was disciplined for not punching out for
prayer until September 2011.
The policy went into effect on September 30, 2011. On that day or within
the first few days of October, Farah and the other plaintiffs prayed without punching
out. Hertz suspended them. Then, on October 13, 2011, one of the Hertz
managers sent letters to Farah and the other suspended employees, informing
them that they could return to work if they would acknowledge that they had to
punch out for prayer. Eight of the suspended employees signed the
acknowledgment form and returned to work. When the plaintiffs did not sign the
acknowledgmentform, Hertz terminated their employment.
Around the time of the suspension and eventual terminations, roughly half
of the shuttlers were practicing Muslims. The shuttler workforce remains about 50
No. 73268-4-1 / 3
percent Muslim.
Farah and the other plaintiffs (together Farah) sued Hertz and two of the
Hertz managers for discrimination based on national origin and religion. The case
proceeded to a jury trial.
Jeffrey Wilson, Hertz's manager for the Sea-Tac location in 2010 to 2011,
testified at trial. Farah sought to introduce an e-mail Wilson had written to other
managers about the break policies. The trial court excluded the e-mail. Other
Hertz managers testified that they informed their employees about the policy by
posting notices, in English, about the policy in several prominent locations,
discussing it at meetings, and asking employees if they had punched out as the
employees entered the prayer rooms. Many of the plaintiffs testified that they were
not aware of the policy change at the time they were suspended.
During the trial, Hertz frequently objected to Farah's manner of questioning
witnesses, asserting that Farah was being argumentative, repetitive, and
misleading. The court sustained many of these objections. When Farah asked,
outside the presence of the jury, for the court to explain its rulings, the court
articulated its concern that Farah was needlessly consuming time:
[Y]ou are focusing too much on one portion of the testimony and
being redundant. And you are being theatrical in a way that is a
waste of time and is inappropriately argumentative.
And if we do the more theatrical approach, and redundant and
argumentative approach, it's both inappropriate and takes about five
times longer.[1]
The court gave the pattern jury instructions for employment discrimination
1Report of Proceedings (RP) (Nov. 12, 2014) at 187.
3
No. 73268-4-1 / 4
cases where the plaintiff alleges disparate treatment. Farah requested an
instruction on a permissible inference that the jury would be allowed to draw if it
disbelieved Hertz's stated reasons for terminating Farah. The court did not give
the instruction. We, along with the parties, refer to this as a "pretext instruction."2
The jury returned verdicts for the defense. Farah moved for a new trial.
The court denied his motion. Farah appeals.
ANALYSIS
Pretext Instruction
Farah argues that the trial court erred by refusing to instruct the jury on
pretext. He contends that, without the instruction, the jury was not fully informed
of the applicable law. Hertz responds thatthe instructions were adequate and that
pretext instructions are inappropriate under Washington law. While the instruction
would have been appropriate, it was not necessary. Thus, refusing to give the
instruction was not error.
Jury instructions are sufficient when they allow parties to argue their theory
ofthe case, are not misleading, and, when taken as a whole, inform the jury ofthe
applicable law. City of Bellevue v. Raum, 171 Wash. App. 124, 142, 286 P.3d 695
(2012), review denied, 176 Wash. 2d 1024, 301 P.3d 1047 (2013). If the trial court's
jury instructions are otherwise sufficient, the court does not need to give a party's
proposed instruction, though that instruction may be an accurate statement of the
law. Citvof Seattle v. Pearson, 192 Wash. App. 802, 821, 369 P.3d 194 (2016). The
trial court may decide which instructions are necessary to "guard against
2 Br. of Appellants at 52; Br. of Resp'ts at 43.
4
No. 73268-4-1 / 5
misleading the jury." Gammon v. Clark Equip. Co.. 104 Wash. 2d 613, 617, 707 P.2d
685 (1985).
We review a trial court's decision whether to give a particular jury instruction
for an abuse of discretion. Clark Ctv. v. McManus. 185 Wash. 2d 466, 474, 372 P.3d
764 (2016). That includes, "a trial court's rejection of a party's jury instruction."
Pearson, 192 Wash. App. at 820.
Here, Farah requested the following jury instruction, taken from the Eighth
Circuit's model jury instructions:
You may find that a plaintiff's religion or national origin was a
substantial factor in the defendant's [sic] decision to suspend or
terminate a plaintiff if it has been proved that the defendants' stated
reasons for either of the decisions are not the real reasons, but are
a pretext to hide religious or national origin discrimination.131
This instruction is an accurate statement of the law. The Supreme Court held in
Reeves v. Sanderson Plumbing Products. Inc. that this inference was permissible
in employment discrimination cases that rely on the McDonnell Douglas4 burden-
shifting framework. 530 U.S. 133, 142-43, 120 S. Ct. 2097, 147 L. Ed. 2d 105
(2000).5 Washington adopted this standard for Washington's Law Against
Discrimination (WLAD), chapter 49.60 RCW, cases soon after the Supreme Court
announced it in Reeves. Hill v. BCTI Income Fund-I. 144 Wash. 2d 172, 178-79, 23
3Clerk's Papers (CP) at 1109; see Eighth Cir. Civil Jury Inst. § 5.20 (2014).
« McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L. Ed. 2d
668 (1973) (developing a burden-shifting framework for claims brought under Title VII of
the Civil Rights Act of 1964, § 703(a)(1), 42 U.S.C.A. 2000e-2(a)(1)).
5Reeves dealt with an action brought under the Age Discrimination in Employment Act
of 1967, § 4(a)(1), 29 U.S.C.A. § 623(a)(1), but the Supreme Court explained that it was
assuming that the McDonnell Douglas framework would apply. 530 U.S. at 142.
No. 73268-4-1 / 6
P.3d440(2001).6
Washington's pattern jury instructions for employment discrimination do not
include a pretext instruction. 6A Washington Practice: Washington Pattern
Jury Instructions: Civil 330.01 (6th ed. 2012) (WPI). In fact, the comments to
the instruction indicate that "an instruction or language on pretext is inappropriate."
WPI 330.01 cmt. at 346. That comment cites the Washington State Supreme
Court case Kastanis v. Educational Employees Credit Union. 122 Wash. 2d 483, 496,
859 P.2d 26, 865 P.2d 507 (1994).
In Kastanis, the employer requested an instruction that the plaintiff had to
prove that its stated reasons for firing the plaintiff were a pretext. 122 Wash. 2d at
494. The court held that, while proof of pretext was necessary for the plaintiff's
case to survive summary judgment, a jury instruction on pretext was unnecessary
because, at trial, the plaintiff needed to meet only his ultimate burden of proving
that the employer intentionally discriminated. 122 Wash. 2d at 494-95. Division One
ofthe Court ofAppeals also rejected an argument thatemployment discrimination
cases required complex burden shifting and pretext instructions. Burnside v.
Simpson Paper Co.. 66 Wash. App. 510, 524, 832 P.2d 537 (1992), affd, 123Wn.2d
93, 864 P.2d 937 (1994). It held that, "[ijssues of the plaintiffs prima facie case,
the employer's burden to rebut with a legitimate nondiscriminatory reason, and the
employee's showing ofpretext are irrelevant once all the evidence is in." Burnside,
66 Wash. App. at 524. Instructions on pretext or shifting burdens would create
6Washington courts consider casesinterpreting Title VII persuasive authority because the
WLAD is modeled after Title VII. Lodis v. Corbis Holdings. Inc.. 172 Wash. App. 835, 849,
292 P.3d 779 (2013).
No. 73268-4-1 / 7
"needless confusion." Burnside. 66 Wash. App. at 524.
Burnside and Kastanis are not dispositive because the instructions at issue
in those cases dealt with shifting burdens of proof rather than permissible
inferences. In Kastanis. the employer asked the court to instruct the jury that the
employee had to prove that the employer's offered business necessity explanation
was a pretext. 122 Wash. 2d at 493-94. In Burnside. the court did not specify what
the proposed instructions at issue were but compared them to the one offered in
Pannell v. Food Services of America. 61 Wash. App. 418, 431-32, 810 P.2d 952
(1991). Burnside, 66 Wash. App. at 523. The proposed instruction in Pannell
included a lengthy explanation of prima facie cases, legitimate, nondiscriminatory
reasons, and pretext. 61 Wash. App. at 431-32. These instructions were much more
likely to confuse the jury than the one Farah requested.
No Washington cases have addressed whether a pretext instruction on
permissible inferences, rather than burden shifting, is required, in light of Reeves.
In the absence of controlling Washington law, this court looks to federal cases
interpreting Title VII. Lodis v. Corbis Holdings. Inc., 172 Wash. App. 835, 849, 292
P.3d 779 (2013). The federal courts do not provide a clear answer because there
is a circuit split on this issue.
The Second, Third, Fourth, Fifth, and Tenth Circuits have endorsed the
requirement, although some of the circuits have required that the plaintiff satisfy
certain conditions before the court would be required to give the instruction.
Cabrera v. Jakabovitz, 24 F.3d 372, 382 (2d Cir. 1994); Smith v. Borough of
Wilkinsburg, 147 F.3d 272, 280 (3d Cir. 1998); Kozlowski v. Hampton Sch. Bd., 77
No. 73268-4-1 / 8
Fed. Appx. 133, 144 (4th Cir. 2003);7 Kanida v. Gulf Coast Med. Pers. LP. 363
F.3d 568, 578 (5th Cir. 2004); Townsend v. Lumbermens Mut. Cas. Co.. 294 F.3d
1232, 1241-42 (10th Cir. 2002).
In Townsend, the court expressed its concern that, considering that many
federal judges did not understand how a showing of pretext operated before the
Supreme Court's decision in Reeves, it was unlikely that a jury would "intuitively
grasp" this point of law. 294 F.3d 1241 n.5. The Fourth and Third Circuits also
cited that previous confusion in the courts as proof that the permissible inference
was not a matter of "common sense." Smith. 147 F.3d at 280-81: Kozlowski. 77
Fed. Appx. at 143-44.
Conversely, the First, Seventh, Eighth, Ninth, and Eleventh Circuits have
explicitly held that the instruction is not required or indicated that they would be
unlikely to require it. Fife v. Digital Eguip. Corp.. 232 F.3d 3, 7 (1st Cir. 2000);
Gehrinov. Case Corp.. 43 F.3d 340, 343 (7th Cir. 1994); Moore v. Robertson Fire
Prot. Dist.. 249 F.3d 786, 789-90 (8th Cir. 2001); Browning v. United States, 567
F.3d 1038, 1040 (9th Cir. 2009), cert, denied, 559 U.S. 1067, 130 S. Ct. 2090, 176
L. Ed. 2d 722 (2010); Conrov v. Abraham Chevrolet-Tampa. Inc.. 375 F.3d 1228,
1234-35 (11th Cir. 2004).
In Gehring. Judge Frank Easterbrook wrote that the instruction was
unnecessary and pointed out thatthe plaintiff's attorney asked the jury to draw the
permissible inference and "neither judge nor defense counsel so much as hinted
that any legal obstacle stood in the way" of that argument. 43 F.3d at 343. Even
7This case was not published in the Federal Reporter, but may be cited for persuasive
authority. GR 14.1(b); Fourth Circuit Rule 32.1.
8
No. 73268-4-1 / 9
in Kanida. a case within a circuit requiring the instruction, the court urged en banc
reconsideration of its opinion so it could overrule an earlier panel's decision
requiring the instruction. 363 F.3d at 577-78. That court pointed out that the
pattern jury instruction permitted "jurors to draw the reasonable inferences" they
felt the evidence justified and that instructing jurors on permissible inferences risks
"confusing the jury regarding the ultimate issue a plaintiff must prove." Kanida,
363 F.3d at 576-77.
We agree with the circuits that have held the instruction is not required.
While the instruction might be appropriate, the arguments in its favor are not
compelling enough to hold that it is an abuse of discretion to refuse to give the
instruction. The court's general instructions were sufficient for Farah to inform the
jury of the applicable law and allow Farah to argue his theory of the case. The
court's instructions were not misleading. Therefore, we hold that it was not error
for the trial court to refuse to give Farah's proposed instruction.
Exhibit 1929
Farah contends that the trial court erred by excluding exhibit 1929, an e-
mail thread between Jeffrey Wilson and other Hertz managers. Farah argues it
was admissible (1) as the admission of a party opponent or (2) under the business
records exception to hearsay. Because we determine that it was an admission by
a party opponent, we do not address whether it was also a business record.
This court reviews a trial court's evidentiary decisions for an abuse of
discretion. State v. Demerv, 144 Wash. 2d 753, 758, 30 P.3d 1278 (2001). A trial
court abuses its discretion when it exercises it on untenable grounds or for
No. 73268-4-1/10
untenable reasons. Burnside. 123 Wash. 2d at 107.
Admission of a Party Opponent
Farah claims that, because exhibit 1929 was an admission by Hertz's
manager ofthe Sea-Tac location, Jeffrey Wilson, the trial court erred by excluding
it. We agree.
A statement is not hearsay if it is an admission by a party opponent. ER
801(d)(2). To qualify as a statement of a party opponent, it must be "offered
against a party and [be] ... a statement by a person authorized by the party to
make a statement concerning the subject, or... a statement by the party's agent
or servant acting within the scope of the authority to make the statement for the
party." ER 801(d)(2)(iii), (iv). The court may determine if a party is authorized to
speak on a matter by examining "the overall nature of his authority to act for the
party." Lockwood v. AC&S. Inc.. 109 Wash. 2d 235, 262, 744 P.2d 605 (1987).
Exhibit 1929 is an e-mail thread between several Hertz managers that
begins with a message from Jeffrey Wilson, a Hertz local manager. Wilson
testified that his duties included being "responsible for the efficiency of the group
[of shuttlers] and sort of the day-to-day operations. Just making sure that
scheduling was taken care of and that the policies and procedures were
understood and enforced."8 Wilson's e-mail explained to other Hertz managers
how to make sure the shuttlers understood the policies and how those managers
should enforce them. This e-mail falls squarely within his authority. The trial court
held it was not the admission ofa party opponent because of"Mr. Wilson's level in
8RP(Dec. 4, 2014) at 191.
10
No. 73268-4-1 /11
the company."9 This was an abuse of discretion.
Other Bases for Exclusion
Hertz argues that, even if exhibit 1929 is admissible as an admission of a
party opponent, the trial court was right to exclude it because it was not disclosed
by the discovery deadline or was unduly prejudicial under ER 403. Hertz also
argues that it should be excluded because Wilson is not an agent for Hoehne or
Harris. These arguments are without merit.
First, excluding exhibit 1929 because of a discovery violation would amount
to a severe sanction. Before imposing that sanction, the trial courtwould have had
to consider, on the record, whether the discovery violation was willful, if Hertz
would suffer substantial prejudice because ofthe violation, and if a lesser sanction
would suffice. Burnet v. Spokane Ambulance. 131 Wn.2d 484,494, 933 P.2d 1036
(1997); Jones v. Citv of Seattle, 179 Wash. 2d 322, 343, 314 P.3d 380 (2013)
(extending the Burnet analysis to discovery violations that arise during trial). The
trial court did not consider those factors. Thus, we cannot uphold the exclusion of
exhibit 1929 on the basis that Farah disclosed it late.
Second, Farah's theory of the case wasthat Hertz designed the break policy
as a way to discipline or terminate its Somali Muslim employees. Evidence of who
was involved in designing and implementing the break policy was relevant to that
theory. As discussed below, Wilson testified to the contents of the e-mail thread
on cross-examination. His testimony drew no objections on grounds of relevancy
or ER 403.
9RP(Dec. 9, 2014) at 6.
11
No. 73268-4-1/12
Finally, Hertz is correct that Wilson is not Harris's or Hoehne's agent.
Wilson had no authority to speak for these two individual defendants, so they are
not bound by his admissions. See Feldmillerv. Olson. 75 Wash. 2d 322, 323-24, 450
P.2d 816 (1969). But that does not justify excluding Wilson's e-mail. The trial
court, if it had admitted Exhibit 1929, could have instructed the jury that the exhibit
was admitted only against Hertz and was not evidence against Hoehne or Harris.
See Feldmiller, 75 Wash. 2d at 323-24. It would still have been proper to admit it on
that limited basis.
Prejudice
Although it was error to exclude exhibit 1929, that error does not require
reversal because it was not prejudicial. Diaz v. State. 175 Wash. 2d 457, 472, 285
P.3d 873 (2012). "An error is not prejudicial unless it affects, or presumptively
affects, the outcome of the trial." Diaz, 175 Wash. 2d at 472. There is no prejudicial
error in the exclusion of an exhibit when the substance of the exhibit comes out in
trial. Moore v. Smith, 89 Wash. 2d 932, 941-42, 578 P.2d 26 (1978). "The exclusion
of evidence which is cumulative ... is not reversible error." Havens v. C&D
Plastics. Inc., 124 Wash. 2d 158, 169-70, 876 P.2d 435 (1994).
Here, the exhibit itself would have been the same as Wilson's testimony.
Farah cross-examined Wilson in detail about the e-mail thread. Farah argues that
Wilson's oral testimony was not an adequate substitute for the written exhibit
because Farah could not confront Wilson with his exact words. We disagree.
Farah was able to tell the jury what Wilson wrote, who he said it to, and when he
said it. Wilson even used the same language he had employed in the e-mail; for
12
No. 73268-4-1/13
example, he referred to his "end game" of having shuttlers "punching out for up to
15 minutes of prayer."10
Limiting Instruction
Farah asserts that the trial court erred by refusing to instruct the jury on the
limited permissible use of testimony by James Kidd, a Hertz lead shuttler. We
conclude that the trial court did not abuse its discretion by refusing to give that
limiting instruction when requested.
When evidence is admitted for a limited purpose, the trial court "upon
request, shall restrict the evidence to its proper scope and instruct the jury
accordingly." ER 105. "Where a party fails to ask for a limiting instruction,
however, he waives any argument on appeal that the trial court should have given
the instruction." State v. Dow, 162 Wash. App. 324, 333, 253 P.3d 476 (2011). A
party may request instructions based on unanticipated developments in the
evidence "at any time before the court has instructed the jury." CR 51 (a). The trial
court has the discretion to give additional jury instructions once the jury has begun
deliberating. CR 51 (i); Dalvv.Lvnch, 24 Wash. App. 69, 74-75, 600 P.2d 592 (1979).
Here, the trial court admitted testimony from Kidd about union meetings
over whether to ratify a new collective bargaining agreement. Hertz asked him if
Tracey Thompson, a union official, said anything about the "new contract's break
policy" at the ratification meeting.11 Farah objected on hearsay grounds. Hertz
responded that Thompson's remarks would go to notice. The court overruled the
objection. Hertz also asked what Thompson had said regarding prayer during the
10RP(Dec. 8, 2014) at 41.
11RP(Dec. 9, 2014) at 197.
13
No. 73268-4-1 /14
ratification meeting. Again, Farah objected on the grounds of hearsay but was
overruled. Kidd testified that Thompson said that "if they were to elect to take mini-
breaks, they could schedule their prayer time at one mini-break, maybe have a cup
of tea at the next mini-break or whatever, to give them time to do both."12
Farah did not request a limiting instruction at any time during Kidd's
testimony. He also did not request a limiting instruction when the court finalized
the jury instructions the day of closing arguments.
During its closing statement, Hertz argued that Farah had notice ofthe new
break policy:
[HERTZ]: And again, confirming that the parties did discuss
this. The expectation coming out of the negotiations is that prayer
would now be part of break time, rather than in addition. We made
an additional accommodation to allow that to happen.
The union explains at the ratification meeting that prayer is
part of and not in addition to break time.
Mr. Kidd came in. He's a member of the union bargaining
committee. We subpoenaed him to get him here. He came in and
told you, "Yes, it was explained at the ratification meeting."
[FARAH]: I'm sorry to object, your Honor, but I think counsel
is making reference to things not in the record with Kidd.
THE COURT: Overruled.
[HERTZ]: He testified that Mohamed Hassan, one of the
plaintiffs, was actually the interpreter at the ratification meeting^131
Farah did not request a limiting instruction after the court overruled his
objection. But, on the morning of December 12, 2014, after the jury had
deliberated for a full day, Farah requested a mistrial or, in the alternative, a curative
12 RP (Dec. 9, 2014) at 203.
13RP(Dec. 10, 2014) at 125.
14
No. 73268-4-1/15
instruction, explaining that Kidd's testimony about Thompson's statements was
only to be used for a limited purpose. The trial court denied the motion.
Farah could have requested a limiting instruction from the court before the
trial court instructed the jury and deliberations began. Although Farah would have
been entitled to the limiting instruction if he had made a timely request, the court
was within its discretion to refuse the request when it came after a full day of
deliberations. Denying Farah's belated request for an instruction was not an abuse
of the trial court's discretion.
Cross-Examination Objections
Farah assigns error to numerous trial court rulings sustaining Hertz's
objections to Farah's manner of examining witnesses on the grounds that they
were argumentative, repetitive, lacked a foundation, or mischaracterized other
testimony. He argues that the cumulative effect of these erroneously sustained
objections resulted in substantial prejudice. Because very few of these rulings
were abuses of discretion, we disagree.
As Farah notes, effective cross-examination is integral to due process.
Baxter v. Jones. 34 Wash. App. 1, 3, 658 P.2d 1274 (1983). "'[C]ounsel are entitled
to ask any questions which tend to test the accuracy, veracity or credibility of the
witness.'" Levine v. Barry, 114 Wash. 623, 628, 195 P. 1003 (1921) (quoting
Rogers on Expert Testimony § 33 (2d ed.)).
But attorneys do not have free reign during cross-examination:
The court shall exercise reasonable control over the mode and order
of interrogating witnesses and presenting evidence so as to (1) make
the interrogation and presentation effective for the ascertainment of
the truth, (2) avoid needless consumption of time, and (3) protect
15
No. 73268-4-1/16
witnesses from harassment or undue embarrassment.
ER 611(a). "Courts may, within their sound discretion, deny cross-examination if
the evidence sought is vague, argumentative, or speculative." State v. Darden.
145 Wash. 2d 612, 620-21, 41 P.3d 1189 (2002). A question is argumentative if it
"seeks no facts and instead seeks agreement with the examiner's inferences,
assumptions, or reasons." 5A Karl B. Tegland, Washington Practice: Evidence
Lawand Practice § 611.19, at 552 (5th ed. 2007).
It is proper for a court to forbid questions that are misleading; for example,
if they are "based upon a hypothesis that is not justified by the evidence," or are
"based upon facts that are not in evidence." 5A Tegland § 611.19, at 552. And
the court has "ample authority to curtail" repetitive questioning. 5A Tegland §
611.14, at 541.
Farah challenges approximately 90 allegedly erroneously sustained
objections.14 Rather than addressing each ruling, we discuss representative
samples. Most of these rulings were well within the trial court's discretion.
For example, Farah repeatedly posed questions to Hertz's witnesses that
would have required them to admit that there was a "plan" to treat "Somali Muslims"
differently or to "get" them.15 Farah asked:
All right. Well, it's true, is it not, that during the March 2011 time
frame you were basically working with Mr. Hoehne and Mr. Harris to
14 In this assignment of error, Farah refers to an appendix of objections, which he
submitted to the trial court with his motion for a new trial. Br. of Appellant at 3. Farah
cannot incorporate another 55 pages of argument into his brief. Holland v. City of Tacoma,
90 Wash. App. 533, 538, 954 P.2d 290 (1998), as amended (May 22, 1998) ("[T]rial court
briefs cannot be incorporated into appellate briefs by reference."). We review only the
alleged errors Farah mentions in his brief.
15 See, e.g.. RP (Nov. 12, 2014) at 192-93; RP (Nov. 13, 2014) at 37, 49; RP (Dec. 4,
2014) at 55-56; RP (Dec. 8, 2014) at 28-29.
16
No. 73268-4-1/17
come up with a plan in order to both put the Somalis in a position
where they would be written up for insubordination or put them in a
position where they would basically use too much time and get
written up anyway?[16]
The court properly sustained objections to this and similar questions on the
grounds that they were argumentative or mischaracterized the evidence.
The trial court also sustained Hertz's objections to Farah's attempts to have
witnesses point out, in the gallery, which plaintiffs had been insubordinate. Farah
argues that thiswas a necessary part ofcross-examination because it "would show
that these managers were not close to [the] [pjlaintiffs, did not know them as well
as they claimed, and ... would challenge each manager's credibility."17 While the
trial court allowed Farah to ask Hertz's managers for names of individuals, it
sustained Hertz's objections to Farah's attempts to have them identify the
individuals in the courtroom. These were not genuine attempts to elicit evidence.
Forbidding them was well within the court's discretion under ER 611(a).
Farah also argues that the court improperly sustained objections on cross-
examination as "asked and answered" when the subject was covered on direct
examination, but he had not questioned the witness about it. In the example cited
by Farah, he covered the subject during direct examination, when he called that
Hertz employee as an adverse witness.18 Hertz argued to the trial court that it had
not raised the subject on its direct examination and objected to Farah revisiting the
subject during his cross-examination. The court sustained the objection.
16RP(Dec. 8, 2014) at 29-30.
17 Br. of Appellants at 43-44.
18 Of. Farah's direct examination of Mohamed Babou with Farah's cross-examination of
Babou. RP (Nov. 17, 2014) at 142-43; RP (Dec. 3, 2014) at 123-25.
17
No. 73268-4-1/18
Requiring Farah to move on was within the trial court's discretion under ER
611(a)(2). The court also properly sustained "asked and answered" objections
when Farah asked a witness the same question twice.
A thorough review of all the challenged rulings reveals that few were
erroneous. Additionally, in nearly every instance, Farah was able to rephrase the
question and receive an answer. Or he was able to read the deposition testimony
in question into the record. Therefore, these erroneously sustained objections did
not, individually, result in prejudice.
Nor did an accumulation of errors result in prejudice. There were 14 days
of testimony in this case, with hundreds of objections by both sides, some
sustained and some overruled. Any scattered errors did not meaningfully impact
Farah's ability to cross-examine Hertz's witnesses.
Farah's reliance on Baxter v. Jones is misplaced. 34 Wash. App. at 3-4.
There, the trial court cut short the plaintiff's cross-examination of the defendant
based on time constraints. Baxter, 34 Wash. App. at 2-3. Division Three of the Court
of Appeals recognized that "the court is given considerable latitude in limiting the
scope of cross[-]examination" but, nevertheless, held that it was error to terminate
"cross[-]examination based on a predetermined time to complete trial." Baxter, 34
Wash. App. at 4-5. Here, the erroneously sustained objections do not approach a
total denial of the opportunity to cross-examine crucial witnesses.
Waived Assignments of Error
We do not consider Farah's third and sixth assigned errors, that the court
erred by admitting hearsay testimony about a union manager's declarations, and
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No. 73268-4-1/19
that the trial court erred in denying his motion for a new trial. Farah failed to argue
the merits of either in his opening brief. Under Cowiche Canyon Conservancy v.
Bosley. he has waived those assignments of error. 118 Wash. 2d 801, 809, 828 P.2d
549 (1992). Farah included argument on these issues in his reply brief. This was
"too late to warrant consideration." Cowiche, 118 Wash. 2d at 809.
Attorney Fees
Finally, Farah requests attorney fees. He is not entitled to fees because he
is not the prevailing party.
We affirm the judgment for Hertz Transporting, Inc., Matt Hoehne, and Todd
Harris, and the trial court's denial of Farah's motion for a new trial.
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