"[W]e should recognize the challenge presented by unconscious stereotyping in jury selection and rise to meet it."
How later courts described this case
- "[W]e should recognize the challenge presented by unconscious stereotyping in jury selection and rise to meet it."
- holding that implicit biases affected a judgment
Written by the judges who cited it.
The opinion
. FILM
COURT OF'APPEALS DIV I
'STATE OF WASHING FON
2018 AUG -6 Ail 8:30
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ALONCITA MONROE,an individual, )
) No. 76478-1-1
Appellant, )
) DIVISION ONE
v. )
) UNPUBLISHED OPINION
THE CITY OF SEATTLE, a municipal )
corporation, )
) FILED: August 6, 2018
Respondent. )
)
APPELWICK, C.J. — Monroe brought suit alleging failure to accommodate,
disability discrimination and harassment, and retaliation. She argues that the trial
court should have granted a new trial based on jury misconduct, that the trial
court's jury instructions were in error, and that the trial court erroneously excluded
hearsay. We affirm.
FACTS
Aloncita Monroe was an employee of the City of Seattle (City) in the Public
Utilities division. In 2011, she exhibited strange behavior at work. She appeared
overly nervous, was using exaggerated hand gestures, and her pupils were
constricted. The City ordered a fitness for duty examl (FFDE). Monroe failed, in
part because she tested positive for unprescribed drugs.
1 An FFDE is a medical examination used to determine whether an
employee can safely perform his or her job.
No. 76478-1-1/2
Monroe's physician informed the City that Monroe suffered from major
depression and anxiety disorder. The physician's letter acknowledged that Monroe
had used unprescribed medication to help deal with stress. And, the letter stated
that Monroe's ability to function was limited due to her condition, especially with
respect to front desk duties. The City agreed to accommodate her under the
Americans with Disability Act2 (ADA), by either providing reasonable
accommodation for her within her current job title or another job title by identifying
job vacancies with duties that she could perform.
The City began the accommodation process to find a suitable position for
Monroe. It ultimately placed her in an Administrative Specialist I position with the
Seattle Department of Transportation(SDOT), and her physician approved the job.
Monroe began work in her new position on November 7, 2012. Her supervisor
was Paul Jackson.
On February 8, 2013, Monroe's colleague who worked in the same office
space observed Monroe acting strangely. That employee described her behavior
as strange physical movements, walking aimlessly, staring at her computer
monitor without producing work, gazing at the ceiling repeatedly, and talking and
mumbling loudly to herself. Another colleague stated that Monroe made an odd
request to ride along with SDOT crews, and was "dancing around his office in
circles bobbing her head up and down."
Employees reported this to Jackson. After Jackson personally observed
Monroe's behavior, he alerted the SDOT safety office. Safety Officer Scott Jensen,
2 42 U.S.C. §§ 12101-12213.
2
No. 76478-1-1/3
determined that an FFDE was warranted. Jackson and Jensen met with Monroe
and told her that they were seeking an FFDE. Jackson and Jensen informed her
that declining to undergo the FFDE could result in disciplinary action. They gave
Monroe an opportunity to call her union representative from the privacy of another
room, but she was unable to reach the union. Monroe decided to refuse the FFDE,
and signed the consent form memorializing her refusa1.3
After Jackson collected her belongings, Monroe went into the employee
locker room. Jackson testified that he knocked on the locker room door after about
7 to 10 minutes, and when Monroe opened the door she was on the phone with
her union representative. Monroe handed Jackson the phone, and the union
representative stated that Monroe was ready to undergo the FFDE. Jackson
responded that, because Monroe had already signed the form declining the FFDE,
the FFDE was no longer possible unless he received instructions from his
superiors. The union representative stated that someone would soon contact
Jackson, and Jackson returned to his office.
After that, Jackson testified, Monroe could not be located at the office and
her car was no longer in the parking lot. Monroe contradicted this. She testified
that she then met Jackson in a common area, handed her badge to over him, and
left the building. No FFDE occurred. Monroe was terminated.
3 Monroe's testimony took a different tone. She testified that, when she was
contemplating whether to accept or decline the FFDE, it seemed Jackson had
"snapped" and that she was intimidated and fearful.
3
No. 76478-1-1/4
Monroe filed a complaint for damages under the Washington Law against
Discrimination4 (WLAD). She alleged failure to accommodate, discrimination
based on disability, gender, and sex, a hostile work environment, and retaliation.
The claims proceeded to trial, and the jury returned a verdict in favor of the City.
After the verdict, Monroe moved for a new trial. The motion was based on
one juror's suspicions that the jury may have deliberated without him and Monroe's
argument that the jury instructions were erroneous. The trial court denied the
motion. Monroe appeals.
DISCUSSION
Monroe makes four arguments. First, she argues that a new trial was
warranted, because a juror provided a declaration that stated he believed that the
other jurors deliberated without him. Second, she argues that jury instruction 13
misstated the law, because it stated that a disparate treatment plaintiff must be
able to perform the essential functions of her job. Third, she argues that the trial
court erred by not giving a jury instruction on implicit bias, pretext for termination,
and the City's continuing duty to accommodate. Finally, she argues that the trial
court erred in excluding evidence of the reputation and history of one of the City's
key witnesses, Monroe's supervisor.5
"Ch. 49.60 RCW.
5 She also seeks attorney fees if she prevails. But, because we affirm the
trial court, Monroe is not entitled to attorney fees. Likewise, we need not address
the City's cross appeal.
4
No. 76478-1-1/5
I. Juror Misconduct
Monroe first argues that the trial court erred by denying a mistrial due to
juror misconduct. That motion relied in part6 on allegations of misconduct from
one juror, who was the only African American juror. The facts alleged by that juror
were as follows:
I also[7]felt that there was misconduct in the jury deliberation process.
We deliberated by going through the jury verdict form. The failure to
accommodate claim was first. Three of us voted "yes," meaning we
voted in favor of Ms. Monroe on that claim, which caused the group
to go on to the next claim, and then come back and revisit the first
claim. Each time three of us voted "yes." I voted in favor of a "yes"
vote to each of the claims. We were told by Judge Erlick not to
deliberate when anyone was out of the room. Toward the end of the
morning, I went to the bathroom. I was in there for a few minutes.
As I went to open the bathroom door to rejoin the group, I could hear
the jurors talking, but I could not hear what was being said. When I
opened the door, everyone stopped talking, and two of the jurors
looked at me with guilty expressions. Then, someone said, "let's do
another vote." Without any argument or explanation, one of the
jurors who had voted "yes" with me on the first claim, switched her
vote to "no." Within seconds, the foreperson hit the buzzer and we
were done without further discussion. I felt like this was a rigged
outcome, and that the group convinced her to change her mind out
of my presence.
Monroe contends that this evidence warrants a new trial. The State responds that
Monroe has provided no evidence of misconduct, but merely speculation. And, in
any event, the State argues, any such misconduct would inhere in the verdict.
6 The majority of the issues that Monroe raised in her motion for mistrial
related to jury instructions and evidentiary decisions. But, on appeal, Monroe's
mistrial argument is based solely on juror misconduct.
7 The juror's declaration also stated that he felt the deliberations went too
fast, and the jurors did not adequately consult exhibits. But, Monroe relies primarily
on this quoted portion of the juror's declaration.
5
No. 76478-1-1/6
Courts generally do not inquire into the internal process by which the jury
reaches its verdict. Breckenridge v. Valley Gen. Hosp., 150 Wn.2d 197, 204, 75
P.3d 944 (2003). In considering whether to declare a mistrial based on alleged
juror misconduct, courts must ask whether the facts alleged "inhere in the verdict."
Long v. Brusco Tug & Barge, Inc., 185 Wn.2d 127, 131, 368 P.3d 478(2016). The
party alleging such juror misConduct has the burden to show that misconduct
occurred. State v. Hawkins, 72 Wn.2d 565, 566, 434 P.2d 584 (1967). A strong,
affirmative showing of misconduct is necessary in order to overcome the policy
favoring stable and certain verdicts and the secret, frank, and free discussion of
the evidence by the jury. State v. Balisok, 123 Wn.2d 114, 117-18, 866 P.2d 631
(1994). Appellate courts analyze whether misconduct inheres in the verdict de
novo. Long, 185 Wn.2d at 131.
The individual or collective thought processes leading to a verdict inhere in
the verdict and cannot be used to impeach a jury verdict. Breckenridge, 150 Wn.2d
at 204-05. Thus, a juror's postverdict statements regarding the way in which the
jury reached its verdict cannot be used to support a motion fora new trial. Id. at
205.
Long presents an example of alleged misconduct that inheres in the verdict
and does not warrant a new trial. The court was provided with "the somewhat
conflicting declarations of four jurors, which characterize what one or two of their
fellow jurors said based on their disclosed [life] experiences." 185 Wn.2d at 138.
The court held that this did not warrant setting aside the verdict. Id. at 137. It cited
the fact that the jurors' recollections of what occurred were conflicting. Id. at 138.
6
No. 76478-1-1/7
And, it went on to hold that setting aside a verdict based solely on jurors offering
their own life experiences was not warranted in light of the policy in favor of stable
verdicts. Id.
The evidence does not warrant setting aside the verdict here, either.
Monroe offers a single declaration that is based on suspicion alone as to what was
discussed. The juror did not hear a discussion. He did not have knowledge that
a discussion of issues did occur. He infers that it did from the expressions on other
jurors' faces when he returned. This does not amount to the "strong, affirmative
showing" of misconduct necessary to overcome the policy in favor of stable
verdicts.8 Monroe cites no case where a court has ever afforded such relief based
on mere suspicion that misconduct of this nature may have occurred. Monroe
does not carry her heavy burden to disturb the jury's verdict.8
II. Jury Instructions
Monroe argues that the trial court erred in instructing the jury. First, she
argues that instruction 13 misstated the law. Second, she argues that the trial
8 Monroe also contends that the jury's conduct violated RCW 4.44.300.
That statute permits a jury to separate unless good cause is shown to sequester
the jury. Id. Our Supreme Court has instructed that if a jury is separated in
violation of RCW 4.44.300, a presumption arises that the defendant has been
prejudiced. State v. Smalls, 99 Wn.2d 755, 766, 665 P.2d 384 (1983). Monroe
claims that she is entitled to this presumption. But, here one juror left merely to
use the restroom. Monroe has not established that RCW 4.44.300 was violated.
9 Monroe seems to suggest in her brief that an evidentiary hearing would
be warranted. But, she did not request one. Her motion below sought a new trial.
Her assignment of error clearly states, "The trial court erred in denying plaintiff a
new trial based on juror misconduct." The trial court's decision being reviewed is
whether it erred in denying a mistrial. Whether further fact finding was warranted
is not before us.
7
No. 76478-1-1/8
court erred by not giving additional jury instructions on:(1) implicit bias,(2) pretext
for termination, and (3) an employer's continuing duty to accommodate.
A. Misstatement of Law: "Essential Functions"
Monroe argues that instruction 13 misstated the law. That instruction set
forth the elements of Monroe's disability discrimination claim:(1) that Monroe has
a disability, (2) that she was able to "perform the essential functions of the job in
question with reasonable accommodation," and that (3) the disability was a
substantial factor in her termination. Monroe argues that this instruction was error,
because it included the "essential functions" element. This court reviews whether
a jury instruction reflects an accurate statement of the law de novo. Gregoire v.
City of Oak Harbor, 170 Wn.2d 628, 635, 244 P.3d 924 (2010).
Instruction 13 matched, verbatim, 6A Washington Practice: Washington
Pattern Jury Instructions: Civil 330.32, at 375 (6th ed. 2012)(WPI). Monroe
acknowledges this. Thus, her argument is that WPI 330.32 misstates Washington
law.
In support of this argument, Monroe cites Johnson v. Chevron U.S.A., Inc.,
159 Wn. App. 18, 33, 244 P.3d 438(2010). In that case, Johnson alleged that his
former employer discharged him due to his disability and race. Id. at 21. In
addressing whether the jury was properly instructed, the court reasoned that
"Johnson was required to prove only that his race or disability was a substantial
factor in Chevron's decisions." Id. at 33.
Monroe argues that this quote establishes that an employee need not also
prove that he or she could perform the essential functions of his or her job. But,
8
No. 76478-1-1/9
the context of the quote shows otherwise. The court made the statement in holding
that it was error to require Johnson to prove that he was treated differently than
other employees. Id. at 32-33. And, although the instructions included an
essential functions element, the court did not address that portion of the
instructions, and thus did not hold that it was error. Id. at 32 n.31, 33.
And,the essential functions element is drawn from another case, Havlina v.
Dep't of Transp., 142 Wn. App. 510, 517, 178 P.3d 354 (2007). There, the Court
reasoned that "WLAD's prohibition against disability discrimination does not apply
if the disability prevents the employee from properly performing his job." Id. And,
it specifically mentioned essential functions: "If an employee is not able to perform
the essential functions of his job, the agency's responsibility to accommodate the
employee is limited to making a 'good faith' effort to locate a job opening for which
the employee is qualified." Id.(emphasis added).
Under Havlina, WPI 330.32 does not misstate the law. The trial court's
inclusion of an essential functions element in instruction 13 was not error.
B. Jury Instructions not Given
Monroe argues that the trial court erred by not instructing the jury on: (1)
implicit bias,(2) pretext for termination, and (3) the employer's continuing duty to
accommodate. A trial court's decision on whether to give a particular instruction is
reviewed for an abuse of discretion. Terrell v. Hamilton, 190 Wn. App. 489, 498,
358 P.3d 453(2015)
9
No. 76478-1-1/10
1. Implicit Bias
Monroe argues that the facts of this case warranted an implicit bias
instruction to the jury, because, among other things, Monroe is an African
American plaintiff, and there was only one juror who was African American.
Washington courts have recently expressed concern over implicit bias that can
affect the equitable administration of justice. See, e.g., In re Marriage of Black,
188 Wn.2d 114, 134-35, 392 P.3d 1041 (2017)(holding that implicit biases affected
a judgment); State v. Saintcalle, 178 Wn.2d 34, 49, 309 P.3d 326 (2013)("[W]e
should recognize the challenge presented by unconscious stereotyping in jury
selection and rise to meet it."), abrogated on other grounds by City of Seattle v.
Erickson, 188 Wn.2d 721, 734-35, 398 P.3d 1124 (2017).
But, this instruction is similar in substance to instruction one, which
instructed jurors to "reach your decision based on the facts proved to you and on
the law given to you, not sympathy, bias, or personal preference." Monroe cites
no Washington authority that has ever found error in not giving an implicit bias
instruction. And, Monroe was able to and did address her implicit bias theory in
her closing argument. The trial court did not abuse its discretion in declining to
give the instruction.
2. Pretext
Monroe further argues that the trial court should have given an instruction
on the possibility of using a false pretext for firing an employee due to a disability.
Monroe's offered pretext instruction stated, "You may find that the plaintiffs
disability was a substantial factor in the defendant's decision terminate [sic] the
10
No. 76478-1-1/11
plaintiff if it has been proved that the defendant'[sic] stated reasons for the decision
is [sic] not the real reasons, but is a pretext to hide disability discrimination."
Monroe argues that, because of the paucity of African American jurors and the lack
of an implicit bias instruction, the pretext instruction "would have helped the jury
connect the dots to a discriminatory motive."
Monroe argues that this case warrants a different result than Farah v. Hertz
Transporting, Inc., 196 Wn. App. 171, 383 P.3d 552 (2016), review denied, 187
Wn.2d 1023, 390 P.2d 332 (2017). There, Farah and his co-plaintiffs were
"shuttlers" for Hertz Transporting at Sea-Tac airport. Id. at 174. They brought suit
against Hertz for nationality and religious discrimination, because Hertz required
them to clock out while engaging in their Muslim prayers. Id. at 175. Farah
unsuccessfully requested a pretext instruction nearly identical to the pretext
instruction requested by Monroe, except the term "disability" was replaced by
"religion or national origin." Id. at 177. The Court of Appeals surveyed competing
federal decisions, some of which endorsed the instruction, and some of which held
that the instruction might confuse the jury. Id. at 179-80. It ultimately held that,
"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." Id. at 181.
The same is true here. To the extent that Monroe's theory of the case was
that the City had presented a pretextual reason for terminating her, she had the
opportunity to present that theory during her case in chief. And, in her closing
arguments, she articulated her theory of pretext to the jury.
11
No. 76478-1-1/12
The trial court did not abuse its discretion in denying Monroe's proposed
pretext instruction.
3. Continuing Duty to Accommodate
Monroe also contends that the trial court should have given an instruction
that explicitly informed the jury about the City's continuing duty to accommodate.
Monroe's proposed instruction 30 stated,
The duty to accommodate is a continuing duty that is not
exhausted by one effort. Trial and error may be necessary as part
of the interactive process to satisfy the employer's burden. The
employer's obligation to engage in the interactive process extends
beyond the first attempt at accommodation when the employee asks
for a different accommodation or where the employer is aware that
the initial accommodation is failing and further accommodation is
needed.
If a reasonable accommodation turns out to be ineffective and
the employee with a disability remains unable to perform an essential
function, the employer must consider whether there would be an
alternative reasonable accommodation that would not pose an
undue hardship. The employer has an obligation to affirmatively take
steps to help the disabled employee continue working at the existing
position or attempt to find a position compatible with the limitations.
The trial court declined to give the instruction, because it believed this issue was
adequately addressed in instruction 10. Instruction 10 stated that "[a]n employer
must provide a reasonable accommodation for an employee with a disability. . .
The obligation to reasonably accommodate applies to all aspects of employment,
and .. ..[t]here may be more than one reasonable accommodation of a disability."
Monroe's argument on this continuing duty instruction fails. First, instruction
10 was a correct statement of the law. No Washington case has found an abuse
of discretion for not using continuing duty to accommodate language in the jury
12
No. 76478-1-1/13
instruction. She instead cites a single federal case, Humphrey v. Mem'l Hosps.
Ass'n, 239 F.3d 1128, 1138 (9th Cir. 2001), where the court observed that
employers have a continuing duty to accommodate. That a federal court made
this comment does not establish that the trial court here abused its discretion in
not giving a continuing duty instruction.
Second, Monroe was able to argue her theory of the case without the
proposed instruction 30. In closing argument, she quoted the City's disability
resource guide: "'The obligation to provide reasonable accommodation is on-
going and may arise at any time during an individual's employment.'" She also
stated in closing that "she was not succeeding, and they needed the right to
accommodation [sic], it is on-going, they needed to give her that accommodation."
We hold that the trial court did not abuse its discretion in denying any of
Monroe's proposed instructions.
III. Exclusion of Evidence about Supervisor
Monroe next argues that the trial court erred in excluding evidence related
to Jackson, who was her supervisor and also one of the City's key witnesses.
The trial court redacted an e-mail in which Monroe stated that she had heard
rumors that Jackson had a history of sexual harassment with females.
In another writing, Monroe referenced Jackson being a "womanizer and a
big bully," Jackson asking if Monroe was married, and Monroe catching Jackson
staring at her. The trial court redacted these references, as well. It found the
evidence should be excluded under ER 403, in part because Monroe's sexual
13
No. 76478-1-1/14
discrimination claim had been dismissed and because Monroe had already
established her concerns about Jackson's behavior.10
Under ER 403, a trial court may exclude relevant evidence if its probative
value is substantially outweighed by the danger of unfair prejudice or because it is
cumulative. This court gives a trial court considerable discretion in applying ER
403. Carson v. Fine, 123 Wn.2d 206, 226, 867 P.2d 610(1994). It will reverse an
ER 403 decision only in the exceptional circumstance of a manifest abuse of
discretion. Id.
Monroe points out that the evidence of stories she had heard about Jackson
and her own experiences interacting with Jackson would have given better context
for her actions. But, she was not denied the opportunity to explain her actions. In
her trial testimony about the events leading to her termination, Monroe testified, "I
never had a man of Paul's size be rude to me or disrespectful to me." She testified
that he raised his voice to a level she had never heard, and she felt intimidated.
Here, Monroe's sexual discrimination claim had been dismissed. Only the
evidence going to the dismissed claim was excluded. Absent that claim, evidence
of prior uncomfortable or inappropriate encounters of a sexual nature between
10 In her brief, Monroe contends that the trial court excluded the evidence
as hearsay. The record shows that the City moved to exclude in part based on
hearsay, but it primarily argued that the statements' "tiny probative value .. . is
overwhelmed by the unfair prejudice." And, the trial court did not discuss the
hearsay argument at length, but cited ER 403 and mentioned that the evidence
"opens up a whole... collateral can of worms," and "I think you have established
her concerns [about Jackson]." This shows that the trial court excluded the
evidence based on ER 403. Hearsay was, at most, a secondary ground for the
ruling.
14
No. 76478-1-1/15
Jackson and Monroe, or rumors about Jackson's personal conduct, would have
been highly prejudicial to the City.11
The trial court did not violate its considerable discretion in applying ER 403.
We affirm.
WE CONCUR:
Gufg,yr'
11 Monroe also argues that the evidence should have been admitted
because it was critical to proving her retaliation claim. But, as the City points out,
instruction 17 required Monroe to prove only that (1) she requested an
accommodation due to disability or made a complaint about conduct, and (2) that
request or complaint was a substantial factor in her termination. It did not require
Monroe to specifically prove that her complaint related to protected conduct. Thus,
any evidence that Monroe made a complaint about conduct was necessarily about
protected conduct. The evidence was not necessary for the retaliation claim, and
the trial court did not abuse its discretion in excluding it.
15