BUNCH v. DEPT. OF YOUTH SERVICES, 49655-7-I (Wash.App. 12-1-2003)

No. 49655-7-IThe Court of Appeals of Washington, Division One.
Filed: December 1, 2003 UNPUBLISHED OPINION

Appeal from Superior Court of King County, Docket No: 99-2-11417-5, Judgment or order under review. Date filed: 11/27/2001.

Counsel for Appellant(s), Regina Cahan, King Co Admin Bldg, 500 4th Ave Ste 900, Seattle, WA 98104-2316.

Counsel for Appellant(s), Howard Mark Goodfriend, Edwards Sieh Smith Goodfriend PS, 1109 1st Ave Ste 500, Seattle, WA 98101-2988.

Counsel for Appellant(s), Susan Nathalie Slonecker, King Co Admin Bldg, 500 4th Ave Ste 900, Seattle, WA 98104-2316.

Counsel for Appellant(s), Catherine Wright Smith, Edwards Sieh Smith Goodfriend PS, 1109 1st Ave Ste 500, Seattle, WA 98101-2988.

Counsel for Respondent(s), Mary Ruth Mann, Law Offices of Mary R. Mann Associates, Historic Broderick Bldg, 615 2nd Ave Ste 760, Seattle, WA 98104.

Counsel for Respondent(s), Kenneth Wendell Masters, Attorney at Law, 241 Madison Ave N, Bainbridge Island, WA 98110-1811.

Counsel for Respondent(s), Charles Kenneth Wiggins, Attorney at Law, 241 Madison Ave N, Bainbridge Island, WA 98110-1811.

BAKER, J.

Ralph Bunch claimed that his employer, the King County Department of Youth Services (County) discriminated against him based on his race. A jury agreed and awarded him over $600,000 in damages. On appeal, the County argues that the trial court abused its discretion by admitting improper testimony at trial and by failing to exclude certain witnesses who were not timely disclosed in discovery. The County further argues that the damage award for non-economic damages was unsupported by the evidence. The trial court’s rulings were within its discretion to manage the conduct of litigation. However, we reverse the judgment for non-economic damages because the jury award was unsupported by the evidence, and indicated an improper attempt to award punitive damages.

I
Ralph Bunch, an African American, began working as a guard at the King County Youth Service Center in 1991. Bunch was terminated after he allegedly showed an R-rated movie to juveniles at the center on New Year’s Eve. He then commenced this action, alleging racial discrimination. Bunch produced substantial testimony that racial discrimination was widespread at the detention facility. One of the management teams was headed by Bob Williams, an African American. He testified that black supervisors were grouped together on certain shifts, and white supervisors on other days. Williams also testified that he believed Craig Daly, the white detention manager, discriminated against blacks. Williams stated that the discrimination led to staff members sending a petition to Governor Locke complaining of discrimination.

Other employees testified about the racial segregation of staff at the detention center. Karen Rispoli testified that when she first joined the staff she was told by a supervisor, Dave Winger, who is white, to `pick the black side or the white side’ and to `work on the black days or the white days.’ Several employees testified that African American staff were punished more severely, were forced to work in more difficult conditions, and had their grievances handled differently than white staff. The jury found by special verdict that the County racially discriminated and retaliated against Bunch. The jury found that Bunch’s damages were $3,500 for lost past wages and benefits; $340,000 for future lost wages and fringe benefits; and $260,000 for non-economic damages. The trial court denied the County’s posttrial motions, and awarded Bunch attorney fees of $166,754.50 and costs of $10,126. In a postjudgment order, the trial court assessed $5,000 in sanctions against Bunch’s counsel for violating discovery orders.

II
The County argues that the trial court abused its discretion in allowing Bunch to introduce evidence of the discipline imposed against comparators whose circumstances were not similar to those of Bunch. We disagree. Washington’s Law Against Discrimination (WLAD) prohibits discrimination `against any person in compensation or in other terms or conditions of employment because of . . . race.’[1] Because employers will rarely announce that they have acted in a discriminatory manner, employees are allowed to prove racial discrimination claims through circumstantial evidence using a modified burden-shifting framework established in McDonnell Douglas Corp. v. Green.[2] Under this framework, Bunch was required to prove that: (1) he belongs to a protected class, (2) he was treated less favorably in the terms or conditions of his employment (3) than a similarly situated, nonprotected employee, and (4) he and the nonprotected `comparator’ were doing substantially the same work; if [the employer] then proffers a legitimate, nondiscriminatory reason for its action (here, [Bunch’s] alleged misconduct), then (5) [Bunch] must produce evidence indicating [the County’s] reason is pretextual. One test for pretext is whether (1) an employee outside the protected class (2) committed acts of comparable seriousness (3) but was not demoted or similarly disciplined.[3]

The test for comparing Bunch to a white comparator is whether the comparator `committed acts of comparable seriousness’ and was not similarly disciplined.[4]

The County contends that many of Bunch’s witnesses were not proper comparators. But the trial court carefully considered the admissibility of the challenged testimony. Over the course of several days the court painstakingly pared down the list of Bunch’s witnesses, including comparators and those the County described as `me-too’ witnesses. In a detailed ruling on the County’s motion in limine, the court ruled that comparator incidents were excluded if they predated February 1995, or if they did not involve treatment of a youth, leaving the premises, or retaliation for protected activity. A review of the record shows that the witnesses testifying as comparators met the requirements outlined in McDonnell Douglas Corp. The trial court did not abuse its discretion in setting the parameters for comparators and admitting testimony that fell within those parameters.

The County next argues that the trial court abused its discretion when it failed to exclude witnesses after Bunch repeatedly failed to comply timely with discovery orders. Because the County knew the names of potential witnesses, and because of the deference we pay to the considerable discretion of trial courts on such matters, we conclude that the trial court did not abuse its discretion in refusing to exclude the witnesses. The abuse of discretion standard applies to our review of sanctions for noncompliance with discovery orders.[5] Imposition of sanctions by a trial court is a matter of judicial discretion to be exercised in light of the particular circumstances, but the sanction imposed should be based upon the nature of the discovery violation and the surrounding circumstances.[6] When imposing a sanction, the court must consider the least severe sanction that will accomplish the purpose to be served by the imposition of the sanction, but not be so minimal that it undermines the purpose of sanction. In Lampard v. Roth,[7] the plaintiff provided a list of 26 potential witnesses.[8] However, Lampard failed to answer additional interrogatories and failed to list expert witnesses.[9] The defendant moved to compel discovery and the trial was continued to accommodate Lampard’s failure to provide adequate discovery. Lampard was ordered to provide answers to the interrogatories by July 17. On July 22, Lampard answered the interrogatories but did not list two witnesses who were ultimately called as experts.[10] We held that the trial court abused its discretion by failing to exclude the undisclosed witnesses because the defendant did not have reasonable time to prepare for effective cross-examination or presentation of rebuttal witnesses.[11]

Bunch’s trial counsel failed to completely and timely answer nearly all of the County’s discovery requests, resulting in a finding by the trial court that Bunch’s failure to comply with discovery orders was `willful and deliberate.’ When pretrial motions were heard, Bunch’s witness list still contained 143 witnesses. The trial court thus ordered Bunch to pare down the witness list to individuals actually subpoenaed to testify. By the eve of trial there was still confusion as to which witnesses Bunch was prepared to call. The trial court held that Bunch could offer as a comparator anyone identified in previous answers to interrogatories in response to the County’s motion for summary judgment or in depositions, provided the comparator incidents occurred while Williams’ was manager in 1995 or later. Bunch repeatedly failed to fully comply with the trial court’s discovery orders. But it is within the trial court’s discretion to determine what sanctions to impose in such circumstances. At trial Bunch called 22 witnesses, half of whom were comparators expressly allowed by the trial court. Unlike Lampard, the County does not point to any specific witness who had not been listed in the discovery.[12]
Instead, the County contends that because so many witnesses were disclosed in discovery it amounted to complete nondisclosure. We do not doubt that Bunch’s recalcitrance in failing to timely and forthrightly provide discovery caused the County to have difficulties preparing for trial. But the trial court recognized that in fashioning its orders.[13]
The trial court also sanctioned Bunch in the amount of $5,000. The discovery abuses by Bunch’s counsel were serious, and would have justified far more onerous sanctions. Nevertheless, we conclude that the trial court did not abuse its discretion in its choice of sanctions.

The County next argues that the trial court abused its discretion in imposing time limits at trial that favored Bunch. Trial courts have broad discretionary powers in conducting a trial.[14] Here, the trial court apportioned the time at the beginning of trial and gave Bunch 35 hours and the County 15 hours. The County did not object. In fact, the County unequivocally stated that it could present its case in eight hours. Six days into trial the County sought clarification of the time allocation, and the trial court allowed the County three more hours. The County did not request more time, nor did it complain to the trial court that the time was unfairly allocated. Because the County did not object to the allocation of trial time, did not identify any evidence it was precluded from presenting, and was given more time when it asked for clarification, we conclude that the trial court did not abuse its discretion in managing the trial. Lastly, the County argues that the $260,000 jury award for non-economic damages was not supported by substantial evidence that Bunch suffered emotional distress. Because there was no evidence presented that Bunch ever received medical or psychological treatment for his emotional distress, and no witnesses testified how or to what extent Bunch was impacted by the County’s discrimination, we reverse the award for non-economic damages.

The determination of the amount of damages in actions involving pain and suffering is primarily and particularly within the province of the jury.[15] An appellate court will not disturb an award of damages made by a jury unless it is outside the range of substantial evidence in the record, or shocks the conscience of the court, or appears to have been arrived at as the result of passion or prejudice.[16]

Here, the entire testimony regarding Bunch’s emotional distress consists of only a few conclusory comments by Bunch. Bunch argues that it was unnecessary to present additional witnesses to describe his depression. But a review of cases upholding jury awards shows that in those cases multiple witnesses were called to describe the injuries to the plaintiff, and the witnesses did so in far greater detail than Bunch.[17]

In Hill v. GTE Directories Sales Corp.,[18] a sex discrimination case, the plaintiff testified that as a result of the discrimination she `felt inadequate and frustrated because she was insufficiently trained.’[19] She further testified she consulted her doctor, who thought her problem was stress related. He referred her to another doctor, who prescribed Xanax to settle her nerves and calm her. She also testified she saw a psychologist twice in early 1988 before she quit.[20] The jury awarded the plaintiff $410,000 in non-economic damages. The trial court found the size of the jury award shocking to its conscience because `[t]here was no credible evidence of emotional distress, mental anguish, pain and suffering, or humiliation so severe as to justify an award of $410,000 for non-economic damages’ and reduced the award to $125,000.[21]
Division Two of this court agreed, holding that, `In light of the meager evidence and the jury’s award of excessive economic damages . . . we agree the $410,000 award clearly indicates passion or prejudice, or an attempt to award punitive damages.’[22] While a jury damage award should be overturned only in the most extraordinary circumstances,[23]
the award here shocks the conscience of the court. The evidence on this issue was simply too meager to support the award. We agree with the County that the award indicates passion or prejudice, and a reaction to the litany of negative testimony about discriminatory practices by the County. The jury verdict for non-economic damages is excessive and must be set aside. We order that the judgment for non-economic damages be reduced to $25,000.

Bunch argues that he is entitled to attorney fees under RCW 49.60.030(2). RCW 49.60.030(2) provides for recovery by a plaintiff in a discrimination action of `the cost of suit including reasonable attorneys’ fees.’[24]
RCW 49.60.030(2) does not expressly provide for attorney fees on review, but Washington courts have interpreted the statute as authorizing such an award.[25]

Bunch prevails on his discrimination claim, even though we reduce his judgment for emotional distress. Therefore, we award attorney fees on review to Bunch in an amount to be calculated by the commissioner under RAP 18.1(f), taking into consideration that Bunch did not prevail on the damages issue.

For the foregoing reasons, we reverse in part and affirm in part.

GROSSE and KENNEDY, JJ., concur.