Opinion
No. 85066-1-I
05-06-2024
David HOCKETT, Respondent, v. SEATTLE POLICE DEPARTMENT and City of Seattle, Appellants.
Mark Stephen Filipini, Emaan Reza Ja- beri, Monica Romero, K&L Gates LLP, 925 4th Ave. Ste. 2900, Seattle, WA, 98104-1158, Ashley Elizabeth Mic Gammell, Shelby Renee Stoner, Attorneys at Law, 925 4th Ave. Ste. 2900, Seattle, WA, 98104-1158, for Appellants. Sumeer Singla, Tyler J. Hermsen, Sean Douglas Leake, Daniel Andrew Brown, Williams Kastner, 601 Union St. Ste. 4100, Seattle, WA, 98101-1368, Bradley Henderson Bartlett, Benton County Prosecutor’s Office, 7122 W Okanogan PL Ste. A230, Kennewick, WA, 99336-2679, for Respondent.
Honorable Jim Rogers, Judge.
Mark Stephen Filipini, Emaan Reza Ja- beri, Monica Romero, K&L Gates LLP, 925 4th Ave. Ste. 2900, Seattle, WA, 98104-1158, Ashley Elizabeth Mic Gammell, Shelby Renee Stoner, Attorneys at Law, 925 4th Ave. Ste. 2900, Seattle, WA, 98104-1158, for Appellants.
Sumeer Singla, Tyler J. Hermsen, Sean Douglas Leake, Daniel Andrew Brown, Williams Kastner, 601 Union St. Ste. 4100, Seattle, WA, 98101-1368, Bradley Henderson Bartlett, Benton County Prosecutor’s Office, 7122 W Okanogan PL Ste. A230, Kennewick, WA, 99336-2679, for Respondent.
OPINION PUBLISHED IN PART
Feldman, J.
¶1 A jury found the Seattle Police Department and the City of Seattle (collectively, SPD) liable for negligently exposing their employee, Sergeant David Hockett, to car exhaust containing carbon monoxide (CO) in the workplace, failing to accommodate his disability or impairment under the Washington Law Against Discrimination, ch. 49.60 RCW (WLAD), and retaliating against him for reporting his concerns about car exhaust by creating a hostile work environment in violation of the Seattle Municipal Code (SMC) whistleblower protection provisions, SMC 4.20.800-.880. SPD appeals the jury verdict and various trial court rulings with respect to the negligence and hostile work environment claims.
¶2 In the published portion of this opinion, we conclude that Sgt. Hockett properly exhausted his hostile work environment claim with the Seattle Ethics & Elections Commission Executive Director (Director) under SMC § 4.20.860-.870 before pursuing a private cause of action in King County Superior Court. In the unpublished portion of this opinion, we address several additional assignments of error presented by SPD and conclude that only one of them merits appellate relief, namely SPD’s challenge to the trial court’s award of attorney fees to Sgt. Hockett for work performed by non-lawyer personnel. We remand for entry of findings and conclusions with respect to attorney fees. In all other respects, we affirm.
I
A
¶3 David Hockett is a sergeant at SPD who has worked at the West Precinct since the early 2000s. Officers in the West Precinct park their patrol vehicles in an enclosed parking garage (the West Garage). Each day, multiple vehicles at a given time are in the West Garage with their engines idling. These patrol vehicles produce car exhaust containing, among other substances harmful to human health, CO—a colorless, odorless gas that causes oxygen deprivation when inhaled. SPD officers inhale this car exhaust in the West Garage, and a hole in the wall also allowed this exhaust to flow into the sergeants’ office located adjacent to the garage. Symptoms of CO poisoning include headaches, fatigue, nausea, coughing, shortness of breath, dizziness, lack of concentration, memory loss, and difficulty sleeping.
¶4 Around 2015, SPD began equipping its patrol vehicles with a technology known as "Idleright," which turns on the engine when the battery runs low in order to continue powering the in-vehicle computer. In March 2015, Assistant Chief Steven Wilske instructed officers to use Idleright "whenever you can versus leaving [a vehicle] idling for long periods," but clarified, "[Y]ou can’t use [Idle-right] inside, so West [Precinct officers] … have to park on the street during the shift." After learning that several Idleright-equipped vehicles had been left inside the West Garage without turning off both the engine and Idleright, Lieutenant Thomas Mahaffey reminded West Precinct staff to turn off both the engine and Idleright when returning a patrol car because "[i]dling of cars unnecessarily … makes for excess carbon monoxide in the garage."
¶5 In May 2016, the Seattle Fire Department (SFD) detected high levels of CO in the West Garage and warned West Precinct staff that the ventilation system was not designed to handle the amount of exhaust produced by Idleright-equipped vehicles and that "it’s a matter of time before [SPD] ha[s] a carbon monoxide injury to an employee." In a subsequent email exchange, Lt. Mahaffey stated that SPD needed to address the issue of officers "leav[ing] their cars running the entire shift" in the West Garage," and Assistant Chief Wilske replied that leaving vehicles "running all the time is gonna get somebody hurt." In August 2017, SFD personnel again tested the air quality in the West Garage after an SPD employee sent an anonymous complaint to the Department of Labor and Industries (L&I). The SFD Captain told an SPD officer they "became congested in the short period that we were there" and these symptoms "disappeared almost immediately after leaving the garage."
¶6 Around this time, Assistant Chief Wilske e-mailed SPD officers about a separate issue involving faulty construction of SPD patrol vehicles causing CO to leak into the passenger compartment. The e-mail listed symptoms of CO poisoning and encouraged officers to "report any issues they feel might be related." After receiving Assistant Chief Wilske’s e-mail, Sgt. Hockett told Safety Officer Steve Redmond that Sgt. Hockett’s subordinate officers were experiencing symptoms of CO exposure and asking him "what they should do to be checked for long-term exposure." Ofc. Redmond responded that SPD was "taking steps to mitigate this issue." Sgt. Hockett then e-mailed his supervisor, Lt. Todd Kibbee
I’ve worked in this precinct for 17 years and have medically documented ailments I see are listed as symptoms of short/long term CO exposure. My doctors have always been stumped as to the cause. I’d like to figure out if the 40+ idling patrol cars and lack of ventilation have been the culprit the whole time.
Lt. Kibbee replied, "I am sure Steve Redmond will make all of the facts known when complete."
¶7 In September 2017, an L&I inspector issued a report concluding that SPD had not violated any workplace safety laws regarding CO levels in the West Garage. But the report recommended that SPD (1) upgrade its ventilation system because it "does not appear to provide adequate air exchanges to ensure employee exposure to vehicle exhaust is kept to a minimum" and (2) prohibit officers from completing reports in their vehicles in the West Garage.
¶8 Dissatisfied with the lack of transparency from his superiors about the car exhaust issue and the lack of any meaningful solution, Sgt. Hockett placed his own CO monitors throughout the West Garage. Additionally, in October 2017, Sgt. Hockett asked an Idle-right representative whether it was safe for multiple vehicles equipped with the device to be left running all day in the enclosed West Garage, to which the representative responded that the device was "not intended to be used in the manner you describe." This e-mail was eventually forwarded to Assistant Chief Wilske, who e-mailed Sgt. Hockett’s supervisors commanding them to "insure that Sgt Hockett knows that he is not an authorized [SPD] representative to be contacting a vendor and questioning them, and that any further safety concerns he has should be forwarded to his chain of command and/or Steve Redmond for action." The e-mail concludes: " Make it clear that this is an order …. I will aggressively follow up if it is violated and this continues."
¶9 After learning of Chief Wilske’s order, Sgt. Hockett stopped discussing the issue of CO in the West Garage for over a year. During this time, Sgt. Hockett’s direct supervisor, Lt. John Brooks, reportedly told him that SPD command staff considered him a "problem child" because of his CO reporting and that "if you ever want to go anywhere in this Department, you need to lay low." Nonetheless, the CO issue persisted. In November 2017, SPD discovered that the ventilation system in the West Garage had been malfunctioning. First, an incorrectly installed part was causing the fan to extract ah’ from the garage less efficiently than designed. Second, the system had been manually set to low speed since 2013 to reduce noise, which prevented the system from automatically increasing the fan speeds when it detected high levels of CO. SPD fixed these mechanical problems.
¶10 Sgt. Hockett re-raised his concerns about CO in May 2019, when he e-mailed Lt. Brpoks that he has "medically documented ailments consistent with daily [CO] exposure at the precinct," including "an emergency room visit … constant fatigue, chronic headaches, sinus issues, and difficulty concentrating or remembering simple things during or after being in the garage for extended periods of time completing required tasks." Sgt. Hockett’s e-mail also reported that other SPD officers were calling him names such as "CO guy," "troublemaker," and "dead man walking" because he reported to his superiors his concerns about CO in the West Garage. Sgt. Hockett also shared that he felt threatened when an unknown SPD employee wrote "HOCKETT" on a whistleblower protection flier and placed it in a prominent position in the office.
¶11 Upon receiving Sgt. Hockett’s e-mail, Lt. Brooks called him into a disciplinary meeting and ordered him to stop monitoring CO levels in the West Garage. Lt. Brooks also suggested that Sgt. Hockett transfer to a different precinct, which Sgt. Hockett opposed because it would have hindered his career aspirations, decreased his pay, and increased his commute. Sgt. Hockett understood Lt. Brooks’ insistence that he leave the West Precinct as punishment for reporting his health concerns.
¶12 Sometime after this meeting with Lt. Brooks, an unknown SPD employee pinned a picture in Sgt. Hockett’s cubicle of Morgan Freeman’s incarcerated character "Red" from the film The Shawshank Redemption saying, "These walls are funny, first you hate them, then you get used to them. Enough time passes, you get so you depend on them. That’s institutionalized." Sgt. Hockett interpreted this picture to mean that other officers viewed him as being "trapped like a prisoner" with no future career prospects at SPD because of his whistleblower conduct.
¶13 In September 2019, Sgt. Hockett e-mailed his supervisor notifying her that he had begun taking anti-depressants and was "suffering from other health conditions as a result of [CO] exposure in the [West Garage]." When the West Precinct Captain learned of this e-mail, Sgt. Hockett was placed on administrative leave for six months.
B
¶14 In June 2020, Sgt. Hockett sued SPD in King County Superior Court alleging claims for (1) negligence and (2) failure to accommodate in violation of WLAD. In February 2021, Sgt. Hockett filed a whistleblower complaint with the Director under SMC 4.20.860(A). In April 2021, the Director dismissed the complaint as insufficient and untimely under SMC 4.20.860(A) and (B)(2). On June 1, 2021, Sgt. Hockett filed an amended complaint in his King County action adding a third claim for retaliation in violation of the SMC. The next week, Sgt. Hockett resubmitted to the Director his whistleblower complaint together with a copy of his amended superior court complaint. In July 2021, the Director found the resubmitted complaint sufficient and decided not to investigate the complaint further because Sgt. Hockett was pursuing his claims in the King County Superior Court action.
¶15 Before trial, the court granted two relevant sets of motions in limine. First, Sgt. Hockett sought to exclude any evidence that his exposure to toxic substances during his military service in the first Gulf War in the early 1990s caused the symptoms he attributes to exposure to car exhaust at the West Garage on several grounds, including hearsay and relevance. The trial court, granted the motion and ruled that "[o]pinion testimony about the diagnosis of ‘Gulf War Syndrome’ [(GWS)] and the phrase ‘Gulf War Syndrome’ is excluded" and "[m]edical records must exclude and redact any diagnosis of any doctor." Second, Sgt. Hockett sought to exclude on hearsay grounds the results of the 2017 L&I report concluding that SPD had not violated occupational CO exposure standards and declining to issue a citation. The trial court granted this motion and ruled that SPD could not introduce "[t]he results of investigations (findings, citations, non-citations, etc.)" or "opinions or conclusions of law contained in an investigation report."
¶16 At trial, Sgt. Hockett’s treating physician, Dr. Nathan Parker, testified that Sgt. Hockett had suffered permanent lung damage from his exposure to car exhaust in the West Garage. Dr. Parker diagnosed Sgt. Hockett with Reactive Airway Disease (RAD), a condition similar to asthma in which a person develops breathing problems from inhaling an airborne irritant. After Dr. Parker testified, SPD sought to introduce previously undisclosed opinions of its expert toxicologist, Dr. Brent Burton, rebutting Dr. Parker’s RAD diagnosis and referencing Sgt. Hockett’s military-related exposures. The trial court granted Sgt. Hockett’s motion to exclude this testimony.
¶17 Before submitting the case to the jury, Sgt. Hockett split his third claim under the SMC into two separate claims numbered claim 3 and claim 4. The new claim 3 alleged that SPD retaliated against him by passing him over for promotions and assignments, and the new claim 4 alleged that SPD retaliated against him by creating a hostile work environment. The jury found SPD liable on claim 1 (negligence), claim 2 (failure to accommodate under WLAD), and claim 4 (hostile work environment under SMC). The jury awarded damages of $175,000 on claim 1, $150,000 on claim 2, and $1,000,000 on claim 4. Thereafter, SPD filed various posttrial motions, which the trial court largely denied. The trial court awarded attorney fees to Sgt. Hockett as the prevailing party on his statutory employment claims. See RCW 49.60.030(2); SMC 4.20.870(B). SPD appeals.
As to claim 3, the verdict form further split this claim into two separate claims, the first of which related to assigning another individual to the role of Acting Lieutenant and the second of which related to assigning another individual to the role of Night Bikes Sergeant. The jury found SPD not liable under the first part of claim 3 but was hung on the second part. On appeal, neither party has assigned error to the verdict on claim 3 or any trial court ruling regarding claim 3.
II
¶18 SPD argues the trial court erred in denying its CR 50(b) motion for judgment as a matter of law and its CR 59(a) motion for reconsideration seeking dismissal of Sgt. Hockett’s hostile work environment claim because he did not exhaust this claim as required by SMC § 4.20.860-.870 before pursuing his SMC retaliation claim against SPD in court. We disagree.
[1–4] ¶19 Judgment as a matter of law under CR 50(b) is appropriate when, construing all facts and reasonable inferences in favor of the nonmoving party, "there is no substantial evidence or reasonable inferences to sustain a verdict for the nonmoving party." Paetsch v. Spokane Dermatology Clinic, P.S., 182 Wash.2d 842, 848, 348 P.3d 389 (2015) (quoting Indus. Indem. Co. of Nw. v. Kallevig, 114 Wash.2d 907, 915-16, 792 P.2d 520 (1990)). We review rulings on motions for judgment as a matter of law de novo. Id. Conversely, we review rulings on CR 59 motions for an abuse of discretion, which occurs when a trial court’s decision is manifestly unreasonable or exercised on untenable grounds or for untenable reasons. Worden v. Smith, 178 Wash. App. 309, 322-23, 314 P.3d 1125 (2013). Also relevant here, we construe municipal ordinances according to the rules of statutory interpretation. City of Seattle v. Swanson, 193 Wash. App. 795, 810, 373 P.3d 342 (2016). "When the meaning of statutory language is plain on its face, we give effect to that plain meaning as an expression of legislative intent." Id.
¶20 The exhaustion requirement for SMC retaliation claims is set forth in SMC 4.20.860-.870. To pursue an SMC retaliation claim in court, the employee must first file a sufficient and timely complaint with the Director. SMC 4.20.870(A)-(B). A complaint is sufficient if it "asserts facts that, if true, would show: [a] the employee is a cooperating employee; [b] the employee was subjected to an adverse change or changes that occurred within the prescribed time period; and [c] the employee’s protected conduct reasonably appears to have been a contributing factor." SMC § 4.20.860(B)(3). A complaint is timely if it is filed "within 180 days of when [the employee] reasonably should have known that an occurrence alleged to constitute retaliation occurred." SMC 4.20.860(A). If the Director determines the complaint to be sufficient, the Director may either (a) investigate the complaint to determine if there is reasonable cause to believe that retaliation occurred or (b) "choose not to investigate a complaint if the matter is being pursued in another forum." SMC § 4.20.860(C). If the Director chooses the latter option, the employee may "pursue a private cause of action under [SMC 4.20.870] … to enjoin further retaliation, or to recover the actual damages sustained by the person, or both." SMC 4.20.870(A)-(B).
It is undisputed that Sgt. Hockett was a "cooperating employee" as defined by SMC 4.20.805 because he "[i]n good faith ma[de] a report of alleged improper governmental action."
"Adverse change" includes, but is not limited to, "denial of promotion" and "a supervisor or superior who behaves in, or encourages coworkers to behave in, a hostile manner toward the employee." SMC 4.20.805.
[5] ¶21 Sgt. Hockett properly satisfied these requirements. To be sufficient under SMC 4.20.860(B), Sgt. Hockett’s whistleblower complaint had to assert facts showing that a supervisor behaved in or encouraged coworkers to behave in a hostile manner toward Sgt. Hockett as a result of his reporting of the excess levels of car exhaust in the West Garage. Sgt. Hockett’s resubmitted whistleblower complaint filed with the Director in June 2021, which attached the amended complaint from his King County Superior Court action, asserted such facts. The whistleblower complaint alleged claims for "whistleblower retaliation and hostile work environment." (Emphasis added.) In support of these allegations, Sgt. Hockett averred that after he reported his concerns about excessive car exhaust in the West Garage to his superiors (including Assistant Chief Wilske and Lt. Brooks), SPD personnel began mocking him by calling him names such as "problem child" and "whistleblower," writing his name on a whistleblower pamphlet, and placing a picture in his office calling him "institutionalized." Sgt. Hockett stated that these retaliatory acts caused him to feel ostracized and less reputable among his fellow SPD officers. These allegations satisfy the sufficiency requirement in SMC 4.20.860(B)(3).
¶22 Sgt. Hockett’s resubmitted whistleblower complaint was also timely because it was filed within 180 days of when he reasonably should have known that an occurrence of retaliation occurred. See SMC 4.20.860(A). The whistleblower complaint stated that Sgt. Hockett "has suffered discrete, separable, and ongoing adverse changes in his employment occurring in the past 180 days." (Emphasis added.) Likewise, the amended complaint from the King County Superior Court action alleged that Sgt. Hockett "continues to be ostracized by SPD officers," that he "continues to be mocked as a whistleblower and has been deemed not promotable," and that "[i]nstances of retaliation occur daily, and are ongoing." (Emphasis added.) Because the alleged hostile actions were "ongoing," "continu[ing]," and "occur[ring] daily" on the date Sgt. Hockett filed his complaint, it was necessarily filed within 180 days of an occurrence of retaliation and, therefore, timely under SMC 4.20.860(A).
¶23 Critical here, the Director agreed that Sgt. Hockett’s resubmitted whistleblower complaint was both sufficient and timely. The Director’s July 2021 e-mail states that Sgt. Hockett’s resubmitted complaint is "sufficient under SMC 4.20.860, meaning that it ‘asserts facts that, if true, would show: (a) [Sgt. Hockett] is a cooperating employee; (b) [Sgt. Hockett] was subjected to an adverse change or changes that occurred within the prescribed time period; and (c) [Sgt. Hockett’s] protected conduct reasonably appears to have been a contributing factor.’ " The Director likewise found the resubmitted complaint timely because it asserted that Sgt. Hockett "was subjected to an adverse change or changes that occurred within the prescribed time period," i.e. within 180 days of the filing of the resubmitted complaint. (Emphasis added.)
¶24 Notwithstanding the foregoing analysis, SPD argues that Sgt. Hockett only exhausted his retaliation claims pertaining to 11 instances when he was passed over for promotion to Acting Lieutenant in December 2020 and February 2021 because those are the only acts of retaliation alleged in Sgt. Hockett’s resubmitted whistleblower complaint that were not alleged in his earlier complaint. SPD reads words into the Director’s ruling that are not there; nowhere does the Director’s July 2021 ruling on Sgt. Hockett’s resubmitted complaint state that only some of the claims were sufficient. The Director’s email simply states, "I find the complaint sufficient." Because the Director determined Sgt. Hockett’s complaint to be sufficient and declined to investigate it because Sgt. Hockett was pursuing the matter in another forum, Sgt. Hockett was allowed to "pursue a private cause of action under [SMC 4.20.870] … to enjoin further retaliation, or to recover the actual damages sustained … or both." SMC 4.20.870(A)-(B). [6] ¶25 As SPD recognizes in its reply brief, our unpublished decision in Romulo v. Seattle Pub. Utils., No. 82790-1-I, slip op. at 39-42, 2022 WL 17246817 (Wash. Ct. App. Nov. 28, 2022) (unpublished), https://www.courts.wa.gov/opinions/pdf/827901.pdf, indicates that if a party is aggrieved by the Director’s determination regarding the sufficiency of a whistleblower complaint, it must challenge that determination through an administrative appeal. In Romulo, we affirmed the trial court’s dismissal of an employee’s claims alleging retaliation in violation of the SMC because the Director had previously dismissed the employee’s whistleblower complaint as insufficient and the employee "did not plead any claim for relief from or review of the [Director’s] determination, much less prove that it was erroneous or arbitrary." Id. at 40. Here too, if SPD disagreed with the Director’s determination or believed it to be unclear, it was required to plead a claim for relief from or review of the Director’s determination. Instead, it waited over a year to assert its exhaustion argument as the trial was about to begin. That is not an appropriate time or manner in which to challenge the determination.
Although Romulo is an unpublished opinion, we may properly cite and discuss unpublished opinions where, as here, doing so is "necessary for a reasoned decision." GR 14.1(c). We adopt the reasoning of Romulo as stated in the text above.
SPD argues the trial court abused its discretion by not considering a declaration from the Director submitted with SPD’s CR 59(a) motion for reconsideration in which the Director stated he "did not consider any allegations other than the 11 occasions of alleged retaliation detailed in Sgt. Hockett's second SEEC complaint." This argument is unconvincing because such qualifying language is not in the Director’s July 2021 determination, which found Sgt. Hockett's complaint sufficient under SMC 4.20.860. SPD does not explain why it waited to produce this declaration until nearly two months after trial. The trial court did not abuse its discretion by not considering this untimely declaration. See Wagner Dev. v. Fid. & Deposit, 95 Wash. App. 896, 906-07, 977 P.2d 639 (1999) (trial court properly denied reconsideration because new evidence could have been discovered using due diligence before trial).
[7] ¶26 Next, SPD argues that a complaint is not timely under SMC 4.20.860(A) unless the employee files it within 180 days of when the "first" act of retaliation occurred. This argument is refuted by the plain language of SMC 4.20.860(A)(1), which requires only that a whistleblower complaint be filed within 180 days of "an occurrence" alleged to constitute retaliation. Indeed, in the WLAD context, Washington courts have disavowed a discovery rule for the accrual of hostile work environment claims because "the hostile work environment ‘occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own …. Such claims are based on the cumulative effect of individual acts.’ " Antonins v. King County, 153 Wash.2d 256, 269-70, 103 P.3d 729 (2004) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002)).
¶27 While SPD attempts to support its timeliness argument by citing to Swanson, its reliance on Swanson is misplaced. The Administrative Law Judge (ALJ) in Swanson "did not consider" whether an employee’s placement of a sticker on another employee’s locker constituted retaliation under the SMC because the sticker was "first" placed on the employee’s locker more than 30 days before the complaint was filed. 193 Wash. App. at 808, 373 P.3d 342. On appeal, we affirmed the ALJ’s separate determination that the employer had nevertheless committed retaliation in violation of the state whistleblower statute, ch. 42.41 RCW, without addressing whether the SMC complaint was timely under SMC 4.20.860(A) because neither party raised that issue on appeal. See Swanson, 193 Wash. App. at 815-17, 373 P.3d 342. Thus, the Swanson court’s passing reference to the timeliness requirements in SMC 4.20.860(A) is dicta. Even so, Swanson is distinguishable because here the Director—the person responsible for determining whether a complaint is timely filed under SMC 4.20.860(A)(1)—found Sgt. Hockett’s complaint to be sufficient and permitted him to pursue his SMC retaliation claim against SPD in court. SPD’s contrary arguments lack merit.
Under former SMC 4.20.860(A) (1994), an employee had to file a whistleblower complaint "within 30 days of the occurrence alleged to constitute retaliation." Swanson, 193 Wash. App. at 804, 373 P.3d 342.
¶28 The remainder of this opinion has no precedential value. Therefore, it will be filed for public record in accordance with the rules governing unpublished opinions. See RCW 2.06.040.
WE CONCUR:
Coburn, J.
Smith, C.J.