RYLANDER v. HASART, 25675-4-II (Wash.App. 11-2-2001)

No. 25675-4-II.The Court of Appeals of Washington, Division Two.
Filed: November 2, 2001. DO NOT CITE. SEE RAP 10.4(h). UNPUBLISHED OPINION.

Appeal from Superior Court of Clark County, No. 98-2-03506-8, Hon. James D. Ladley, February 18, 2000, Judgment or order under review.

Counsel for Appellant(s), Kurt M. Rylander, Attorney At Law, Ste 206, 1014 Franklin St, Vancouver, WA 98660.

Edwin A. Skoch II, Attorney At Law, 25 W Spring St, Somerville, N.J. 08876.

Counsel for Respondent(s), Steven R. Meeks, Assistant Attorney General, 629 Woodland Sq Lp SE, P.O. Box 40126, Olympia, WA 98504-0126.

J. ROBIN HUNT, A.C.J.

Bart Rylander, a white male, appeals a judgment as a matter of law in favor of Clark County Community College (the College) in his action for race and sex discrimination, retaliation, outrage, and tortious interference with prospective advantage.[1] Although he was among the top three qualified candidates for a computer sciences teaching position, the College offered the position to a less-qualified black female. Finding that Rylander produced sufficient evidence to go a jury on his claims of race discrimination and retaliation, we reverse the directed verdict for the College. We affirm the trial court’s directed verdict for the College on Rylander’s claim of gender discrimination and the trial court’s denial of Rylander’s motion for judgment as a matter of law.

FACTS I. Hiring Process
In February 1998, the College announced an open, tenured, teaching position in the Computer Sciences Department with the following minimum requirements: a bachelor’s degree in computer science or `related field’;[2] two years of teaching experience; and vocational certification, or eligibility (which requires two years of work experience in the field within the preceding six years, and six months of work or teaching experience in the field within the preceding two years). The position was not designated for `affirmative action.’[3]
Nor had race been mentioned in previous hirings.

The committee for screening job applicants (the Committee) included Cathy Mitchell, Toni Cowan, two others from the math and computer sciences departments, a professor from another department, and D. Henry from Veteran’s Affairs. The Committee was to narrow the pool of applicants to three finalists. A Recruitment Manual instructed them not to make comments or to `hint’ about race during the hiring process.

Bart Rylander, a white male, and Roslyn Williams, a black female, were among the applicants. Rylander’s qualifications included: a B.S. in Computer Science; a B.A in Business Administration, Finance concentration; a M.S. in Electrical and Computer Engineering; a Ph.D. candidate in Computer Science; extensive work experience in both the military and private sector (See Br. of Appellant at 6-7 n. 3); and over three years experience teaching computer science courses as an adjunct professor at the College.

Williams’ background was in elementary education. She had `limited experience,’ had no college teaching experience, and lacked the practical and academic depth of the other candidates. Nonetheless, the College flew her from New York to Washington at `considerable expense’ for an interview.

On April 3, 1998, the Committee convened. Sue Williams, of the College Personnel Department, attended the meeting to `tell [the Committee] what to do.’ The Committee narrowed the field of applicants to three males, Rylander and two others.[4] Roslyn Williams was not among the finalists. Sue Williams urged them not to cut Roslyn Williams, the `only minority candidate,’ and to `wait to make the cut’ until after they checked the candidates’ references. Sue Williams’ remark `surprised’ Committee member Cowan, who said that the Committee would have cut Roslyn Williams `but for’ Sue Williams’ statements. The Committee considered Rylander to be the `best possible candidate,’ `the clear choice.’

The Committee decided to `meet again to make the cut to three.’ The next meeting was scheduled for April 8, just before Sue Williams’ diversity training session for the College faculty. Although the College Recruitment Manual provided that `salary placements’ would not be estimated until after `finalists’ were chosen, the Personnel Department estimated Roslyn Williams’ salary the day before the April 8 meeting. The Personnel Department waited until after this meeting to estimate Rylander’s salary.

At the April 8 meeting, the Committee again decided to eliminate Roslyn Williams as a finalist. Sue Williams again interjected, `Are you sure you want to cut our only minority candidate?’ She then told the Committee that they could submit four names, instead of three. Committee member Mitchell did not know how Roslyn Williams was added back to the list of finalists.

Also during this meeting, DaVerne Bell[5] was in the room setting up for diversity training. Her presence bothered the Committee. She had previously provided the College with an article entitled `White Privilege’ for the Committee’s use. She overheard their discussion about Roslyn Williams, concluded that the Committee was weighing whether to include her as a finalist, and told them `what [she] would do.’

Bell’s diversity workshop began as the Committee was completing their final selection process. Acting College President Tana Hasart entered the room and introduced Bell. Bell told those present that she and Hasart had been friends for a long time and that they had a `close relationship.’ Bell reminded the Committee members that she had overheard their deliberations, and she reiterated Sue Williams’ comments about `the only minority candidate.’

During the diversity training session, Bell walked around the room, pointed at Committee members and others, and said, `What would you do if I called you a racist?’ She said that she called people `racist,’ `bigot,’ and `prejudiced’ to make them think. But according to Committee member Cowan, `It took me aback. It made me uncomfortable.’

After the diversity workshop, the Committee drafted a summary of the candidates’ strengths and weaknesses. The Committee repeated that Rylander was `the clear choice’ and `the best possible candidate.’

During this same time, Hasart was a candidate for the permanent College presidency. Diversity was a pertinent issue for the candidates and their campaigns for the position. In May 1998, just before appearing with other presidency finalists to speak about diversity, Hasart selected Rosyln Williams for the computer sciences teaching position.

Hasart told Committee member Cowan that the College could hire both Roslyn Williams and Rylander. To do so, the College would continue funding a temporary, one-year, non-tenured position. Because Hasart thought that Williams would not move from New York to accept the temporary post, Hasart said that she would offer Williams the tenured post and Rylander could have the one-year temporary post `until Roslyn comes up to speed.’ Hasart also told Cowan that her secretary, Janelle Farley, would call Rylander to tell him that if Williams rejected the offer, he could have the tenured position; otherwise, he would fill the temporary position.

On May 20, 1998, Farley told Rylander that he was the second choice after Williams and that he would have a temporary position for one year unless Williams turned down the tenure-track job, in which case Rylander would have the tenured position. Rylander told Farley that he thought the process had been unfair and he wanted to talk to Hasart. Nonetheless, he accepted the temporary job. Williams accepted the tenured position.

On May 22, Hasart called Rylander and told him, `You weren’t offered another position.’ Ultimately, Rylander received neither position.

II. Post-Hiring Events
Outraged over Hasart’s disregard for the discrepancy between Williams’ and Rylander’s qualifications, Committee member Mitchell wrote Hasart a letter (1) protesting that Hasart had ignored the Committee’s recommendations and (2) resigning from all future committees. Consistent with preceding years, the College had scheduled Rylander to teach classes for the fall 1998 and winter 1999 terms. In September 1998, he sued Hasart, the College, College District 14, and the Clark County Community College Board of Trustees,[6] alleging, inter alia, discrimination in violation of both the state and federal constitutions and state and federal law. The next month, the College cancelled Rylander’s winter classes. Rylander amended his complaint to add retaliatory discharge.

The College had to rearrange the fall 1998 class schedule because Williams was not qualified to teach her assigned classes. Rylander would have been able to teach these classes. Hasart tried to shift Williams to another department to avoid firing her — a move that staff characterized as unusual and bizarre. Nonetheless, within a year, the College fired Williams because she was incapable of doing the job for which she had been hired.

On numerous occasions in 1999, computer science Professor James Cowan tried to persuade the College to hire Rylander as an adjunct professor to fill open positions resulting from teaching shortages. He believed that Rylander was `quite literally one of the best teachers we could get for the [computer sciences] class’ and noted that `he was the best for the students.’ Still, the College did not reschedule Rylander to teach the winter courses.[7] Prof. Cowan believed that the College was retaliating against Rylander.[8]

III. Trial
On January 21, 1998, the College moved to establish the order of proofs under the McDonnell Douglas burden-shifting scheme for discrimination cases.[9] The College proposed: (1) to stipulate that Rylander had satisfied the first-phase[10] of the McDonnell Douglas scheme (that he was qualified to do the job but was displaced by a person outside his protected group); (2) to have Rylander skip the proofs covered by the stipulation; (3) to start the trial with the College’s evidence of a legitimate, nondiscriminatory reason for hiring Williams over Rylander; and (4) then to conduct the remainder of the trial according to McDonnell Douglas sequential proof production.

Rylander responded that the McDonnell Douglas proof process would be unnecessary because he was not going to rely on circumstantial evidence; instead, he said, `Your Honor, we do intend to put on a direct evidence case.’ After further discussion, the court and counsel accepted the stipulation and the College withdrew its motion. The court also ruled in limine that evidence of Roslyn Williams’ poor performance and subsequent termination was irrelevant and inadmissible.[11]

At trial, Rylander offered a series of newspaper articles published around the time of Hasart’s campaign for College president, including one titled, `Educators Stress Diversity.’ He argued that the articles would demonstrate the general atmosphere on campus regarding diversity, which may have motivated the College’s decision to hire Williams. The College objected on both hearsay and relevancy grounds. Rylander also offered the `White Privilege’ handout as evidence that the College had attempted to inject race into the hiring process. Again, the College objected on relevancy grounds. The court sustained the objections and excluded these documents.

At the close of his case-in-chief, Rylander moved for a directed verdict. The trial court denied his motion.

When the College moved for judgment as a matter of law under CR 50, Rylander moved to withdraw his earlier stipulation. He argued that if he had failed to establish discrimination using direct proof under the conventional method, he was now entitled to rely on the McDonnell Douglas rebuttable presumption. The trial court denied his motion, ruling that he was `equitably estopped’ from using McDonnell Douglas and that he had failed to show discriminatory action.

Rylander also moved for judgment as a matter of law, on two grounds:

(1) He was entitled to the McDonnell Douglas presumption because he had established a prima facie case of discrimination; and (2) the College had sought a directed verdict under CR 50 rather than rebut the presumption, thereby failing to meet its burden. In the alternative, Rylander asked for a new trial. The trial court denied Rylander’s motions.

The trial court entered judgment for the College. It ruled: (1) Rylander had not introduced sufficient evidence for a jury to find discrimination, in spite of the first-phase McDonnell Douglas stipulation; (2) Rylander’s pretrial representation (would use direct evidence, not circumstantial evidence under McDonnel Douglas) estopped him from relying on the McDonnell Douglas presumption of discrimination; (3) thus, the College was not required to put on evidence to show a non-discriminatory reason for hiring Williams instead of Rylander; (4) Rylander’s discrimination claim encompassed his retaliation claim; and (5) thus, it, too, failed for lack of proof.

ANALYSIS I. Standard of Review
In reviewing denial or granting of a CR 50 judgment as a matter of law, we apply the same standard as the trial court. Indus. Indem. Co. of the Northwest, Inc. v. Kallevig, 114 Wn.2d 907, 915-16, 792 P.2d 520
(1990); Roberts v. ARCO, 88 Wn.2d 887, 568 P.2d 764 (1977).

A motion for a directed verdict admits the truth of the evidence of the party against whom the motion is made and all inferences that reasonably can be drawn therefrom. In addition, such a motion . . . requires that the evidence be interpreted most strongly against the moving party and in the light most favorable to the opposing party. . . . [T]he trial court can grant such a motion only when it can be held as a matter of law that there is no evidence, nor reasonable inference from the evidence, to sustain the verdict. Mike v. Tharp, 21 Wn. App. 1, 5, 583 P.2d 654
(1978) (quoting Reiboldt v. Bedient, 17 Wn. App. 339, 344, 562 P.2d 991
(1977)).

In reviewing the trial court’s directed verdict for the College, we apply the above standard to the evidence Rylander adduced in his case in chief. We assume the truth of Rylander’s evidence and all inferences reasonably drawn therefrom, and we interpret the evidence in the light most favorable to Rylander. We conclude that a jury could reasonably find: (1) that the College discriminated against Rylander based on race; (2) that this discrimination was a substantial factor in the College’s failure to offer him the position; and (3) that in discharging Rylander and canceling his classes, the College retaliated against him for protesting the discriminatory hiring of Williams over him. Thus, we hold that the trial court erred in granting the College’s motion for judgment as a matter of law and taking the case from the jury as to Rylander’s claims of racial discrimination and retaliation.

But Rylander failed to adduce in his case in chief sufficient evidence of gender discrimination. Even taking the evidence in the light most favorable to him, he showed only that the College hired a female instead of him, a male, not intentional discrimination based on sex.[12]
Moreover, Rylander lacks additional evidence of discrimination, comparable to that which he produced for his race discrimination claim. Accordingly, we affirm the trial court’s directed verdict for the College on Rylander’s gender discrimination claim.

We now turn to our discussion of Rylander’s race discrimination and retaliation claims.

II. Employment Discrimination Based on Race
Rylander contends that the College illegally offered the tenured computer sciences teaching position to the less-qualified Williams based on her race, contrary to RCW 49.60.180:

It is an unfair practice for any employer:
(1) To refuse to hire any person because of . . . race,. . . .
(2) To discharge or bar any person from employment because of . . . race,. . . .
(3) To discriminate against any person in compensation or in other terms or conditions of employment because of . . . race,. . . .

We acknowledge, as did the trial court, that the McDonnell Douglas shifting proof-production scheme is designed to assure that a plaintiff claiming employment discrimination has his day in court, despite the unavailability of the employer’s direct admission of discriminatory intent, which is rare. Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 621-22, 83 L.Ed.2d 523 (1985). We agree with the trial court that Rylander waived the McDonnell Douglas production-shifting scheme. Thus, we uphold the trial court’s denial of Rylander’s request to resurrect McDonnell Douglas later in the trial, after the College changed its trial strategy in reliance on Rylander’s waiver.

A. Denial of Rylander’s CR 50 Motion for Judgment as a Matter of Law
Rylander first argues that he was entitled to judgment as a matter of law based on McDonnell Douglas. But as Rylander clearly stipulated before trial, he elected to forego the indirect McDonnell Douglas alternating order of proofs. Consistently, at oral argument before us, counsel confirmed this understanding of the stipulation. Thus, Rylander could not contend that the College’s motion for a directed verdict was somehow equivalent to a failure of proof under the second part of the McDonnell Douglas scheme simply because the College had not yet put on its case and produced evidence of a non-discriminatory motive.

We will not disturb the trial court’s decision to hold Rylander to his stipulated waiver of McDonnell Douglas. See Baird v. Baird, 6 Wn. App. 587, 590, 494 P.2d 1387 (1972). Although Rylander fulfilled his burden of production sufficiently to ward off a directed verdict for the College and to set the stage for the jury to find discrimination, he did not conclusively prove by a preponderance of the evidence that the College acted with discriminatory intent. The College was entitled to put on its defense, including what it represented to be a non-discriminatory reason for its hiring decision. Rylander was not entitled to judgment as a matter of law under CR 50, and the trial court did not err in denying his motion.

B. Directed Verdict For the College
Rylander asserts that his failure to produce sufficient evidence of discrimination in his case-in-chief should not have precluded him from later using the McDonnell Douglas presumption. He also argues that the trial court erred in directing a verdict for the College on his race discrimination claim. We disagree with him on the first point and agree on the latter. Having waived McDonnell Douglas, Rylander needed to produce evidence of intentional discrimination in his case in chief. He could not wait for the College to produce or to fail to produce a non-discriminatory reason for hiring Williams as would have been the case had he elected to employ the McDonnell Douglas alternating proof-production method.[13] Thus, the trial court properly held Rylander to his stipulation when it prevented him from altering the order of proof mid-trial, especially where by then, the College had altered its trial strategy based on Rylander’s stipulation.

1. Equitable Estoppel
Estoppel is not favored in Washington. Colonial Imports, Inc. v. Carlton Northwest, Inc., 121 Wn.2d 726, 734, 853 P.2d 913 (1993); Berschauer/Phillips Const. Co. v. Seattle Sch. Dist. No. 1, 124 Wn.2d 816, 831, 881 P.2d 986 (1994). Notwithstanding, Rylander’s contention to the contrary, the trial court did not abuse its discretion in ruling that Rylander was equitably estopped from relying on McDonnell Douglas.

Equitable estoppel requires: (1) an admission, statement, or act inconsistent with a claim afterward asserted; (2) action by another in reasonable reliance on that act, statement, or admission; and (3) injury to the party who relied on it if the court allows the first party to contradict or repudiate the prior act, statement, or admission. Robinson v. Seattle, 119 Wn.2d 34, 82, 830 P.2d 318 (1992). Here, Rylander’s late attempt to resurrect the McDonnell Douglas scheme was inconsistent with his pre-trial representation that he would not use it.

The College and the court proceeded to trial in reliance on Rylander’s representation that he would forego McDonnell Douglas and use direct evidence, in spite of the trial court’s warning about inherent pitfalls. As the trial court noted, to have allowed Rylander to change the sequence of proofs after proceeding to trial and finding them wanting would have unfairly prejudiced the College.

2. Sufficient Proof To Preclude Directed Verdict
In deciding whether to direct a verdict for the employer-defendants in a discrimination action, the trial court must determine whether there is a lack of substantial evidence to go to the jury on the issue of discrimination. Even without benefit of McDonnell Douglas, Rylander did provide in his case in chief `direct evidence that the defendant acted with a discriminatory motive’ and that the discriminatory motive was a `significant or substantial factor in [the College’s] employment decision.’ Kastanis v. Educ. Employee’s Credit Union, 122 Wn.2d 483, 491, 859 P.2d 26, 865 P.2d 507 (1994) (citation omitted). Such direct evidence includes reasonable inferences therefrom, as well as circumstantial evidence.[14]

Rylander presented the following evidence of discrimination. The screening Committee was instructed not to consider race as a factor in reviewing candidates for an open, tenured position in the computer sciences department; and they did not. Rylander, a white male, was the clearly the best qualified for the position, and on this, the Committee agreed. Roslyn Williams, a black female, was not; in contrast, she did not even meet the minimum advertised qualifications for the position.

Hasart was the acting College President, seeking the position permanently; diversity was an issue in the presidential campaign. Hasart brought in her mentee, Bell, to teach the College faculty about diversity. Bell overlapped setting up for her training session at the same time and place that the Committee was screening applicants for the computer sciences position. Bell overheard the Committee’s discussions and interjected her opinions, trying to persuade the Committee to retain minority applicant Roslyn Williams in the pool of finalists because of her race. Then, during the diversity training session, she cajoled some Committee members in attendance about being racist, making some of them uncomfortable.

When the screening Committee failed to include Roslyn Williams as one of the three finalists, College Personnel Director Sue Williams twice told the Committee not to exclude the only minority applicant; she insisted that they add Roslyn Williams as a fourth finalist for submission to Hasart.

The College flew Roslyn Williams out from New York at the College’s expense and contradicted its own internal procedures by calculating her salary package in advance. Apparently she was the only candidate to receive this favorable treatment.

Hasart ultimately offered the position to Williams. Hasart asked her secretary to tell Rylander that he could have an alternate one-year position because Williams would not be as likely to move from New York for the one-year position as for the tenured position. Hasart’s secretary also told Rylander that if Williams turned down the offer, he would fill the tenured position. Various Committee members viewed these actions by the College as outrageous and unprecedented.

Taking these proofs and inferences in the light most favorable to Rylander, as the law requires, we hold that the trial court erred in granting the College’s CR 50 motion and in preventing Rylander from taking his race discrimination case to the jury.

III. Retaliation
It is unlawful for an employer to discriminate against a person for opposing practices forbidden by Washington’s Law Against Discrimination (WLAD). RCW 49.60.210(1). WLAD forbids hiring choices based on sex and race. RCW 49.60.180. A person may lawfully sue an employer for violation of WLAD. RCW 49.60.020. It is also an unfair labor practice for an employer to discharge an employee or to discriminate against a person’s employment because he has filed a claim under WLAD. RCW 49.60.210(1). A person who prevails in a civil rights action may recover actual damages under RCW 49.60.030(2), `together with the cost of suit including reasonable attorneys’ fees.’ Steele v. Lundgren, 96 Wn. App. 773, 779, 982 P.2d 619 (1999).

The Supreme Court’s analysis of the employee’s burden of proving retaliation in Wilmot, a worker’s compensation case, is instructive here:

The mandate in RCW 51.48.025 is that retaliatory discharge or discrimination founded on an employee’s assertion of statutory rights . . . violates sound public policy. An employer is simply not entitled to discharge employees because of their assertion of their statutory rights. An employer who fires an employee in substantial part because of assertion of those statutory rights must be accountable, else the great quid pro quo compromise of the IIA [Industrial Insurance Act] is altered unfairly in the employer’s favor. It must be kept in mind that the employer controls his or her own conduct.
It also must be kept in mind that the employee must prove the wrongful conduct, and must do so without the benefit of the employer’s own knowledge of the reason for the discharge, and generally without the access to proof which the employer has. . . . [I]n actions based upon violation of the public policy mandate set out in RCW 51.48.025, the burden of persuasion never shifts to the employer.

Wilmot v. Kaiser Aluminum Chem. Corp., 118 Wn.2d 46, 69-72, 821 P.2d 18
(1991).

To establish retaliatory discharge, Rylander needed to show that (1) he engaged in statutorily protected activity; (2) the College discharged or took some other adverse employment action against him; and (3) retaliation was a substantial factor behind the adverse employment action. Kahn v. Salerno, 90 Wn. App. 110, 128-29, 951 P.2d 321
(1998); Delahunty v. Cahoon, 66 Wn. App. 829, 840-41, 832 P.2d 1378
(1992) (citing Allison v. Hous. Auth., 118 Wn.2d 79, 95, 821 P.2d 34
(1991)). Rylander did this. He put forth sufficient evidence to satisfy each of these elements in his case in chief, even without benefit of the McDonnell Douglas scheme. Because Rylander established wrongful discharge in violation of public policy, the trial court erred in dismissing his case and directing a verdict for the College on this claim. See Kahn, 90 Wn. App. at 131 (citing Wilmot, 118 Wn.2d at 69; Graves v. Dep’t of Game, 76 Wn. App. 705, 712, 887 P.2d 424 (1994)).

A. Protected Activity
To satisfy the first element of retaliatory discharge, Rylander must have had a reasonable belief that he was engaged in some legally protected activity. He established this element by showing his reasonable belief that he had a right under WLAD to sue the College for its illegal discriminatory hiring of Williams. He reasonably believed that the College hired Williams instead of him because of her race and gender: She did not meet the advertised minimum qualifications, and he was far better qualified for the computer sciences teaching position. In the usual course of business, an employer will hire the most qualified person for a position; thus, evidence that the employer hired a less qualified candidate can support a finding of improper discriminatory motivation. Stern v. Trustees of Columbia Univ., 131 F.3d 305, 307-14, (2d Cir. 1997); Harding v. Gray, 9 F.3d 150, 153-54 (D.C. Cir. 1993); Bennun v. Rutgers State Univ., 941 F.2d 154, 158-60 (3rd Cir. 1991).[15]

Whether Rylander can prove that his belief was accurate, i.e. that the College actually engaged in sex or gender discrimination, is irrelevant to the viability of his retaliatory discharge claim. Rather, he needed to demonstrate only that his belief was reasonable under the circumstances:

In the retaliatory discharge context, Washington law has recognized a cause of action where an employee has an objectively reasonable belief an employer has violated the law. See, e.g., RCW 49.60.210
(retaliation for discrimination claim); Kahn v. Salerno, 90 Wn. App. 110, 130, 951 P.2d 321
(1998); Graves v. Dept. of Game, 76 Wn. App. 705, 712, 887 P.2d 424 (1994). . . . A reasonable belief by the employee, rather than an actual unlawful employment practice, is all that need be proved to establish a retaliation claim. Moyo v. Gomez, 40 F.3d 982, 985
(9th Cir. 1994).

Ellis v. City of Seattle, 142 Wn.2d 450, 460-61, 13 P.3d 1065 (2000) (To establish retaliation claim under RCW 49.17.160(1), Ellis was not required to prove an actual industrial safety violation. He had only to prove that the City terminated him for making a complaint.)[16]

Thus, contrary to the trial court’s ruling here, Ellis demonstrates that a retaliation claim does not necessarily rise and fall with a discrimination claim. Rylander clearly established his reasonable belief that he was justified in suing the College for unlawfully discriminating against him on grounds of sex and race. Accordingly, his lawsuit to protest what he reasonably believed to be an illegal, discriminatory employment action was protected under the WLAD.

B. Adverse Employment Action
Rylander sufficiently demonstrated that the College took adverse employment action against him. Within a month after he complained about the unfairness of hiring Williams and his lawsuit against the College, the College (1) retracted its previous offer to him of a temporary, full-time, one-year teaching position and denied having extended him such an offer; (2) cancelled his classes for the next term or reassigned them to other instructors;[17] (3) failed to offer him the opportunity to teach classes that Williams was unable to teach, even though other faculty members highly recommended him to fill this breach; (4) instead, rescheduled or called upon several other people to teach Williams’ classes; and (5) failed to offer Williams’ tenured position to him after it fired her for incompetence, even though Hasart’s secretary had previously told him that the job would be his if Williams declined.

Any one of these actions alone was an adverse employment action. But Rylander established more than one. And in addition, he lost his employment of five years, his work-related benefits, and future employment opportunities.

C. Retaliation — Substantial Factor in Employer’s Action
Retaliatory motivation need not be the employer’s sole or principal reason for the discharge so long as the plaintiff-employee establishes that retaliation was a substantial factor. Wilmot, 118 Wn.2d at 68; Kahn, 90 Wn. App. at 129. As with discrimination, employers rarely reveal expressly that retaliation is a motive for adverse employment actions. Consequently, plaintiffs ordinarily must resort to circumstantial evidence to demonstrate retaliatory purpose. Kahn, 90 Wn. App. at 130
(citing Wilmot, 118 Wn.2d at 69). A plaintiff-employee can meet this prong of the retaliation proofs by establishing that he participated in an opposition activity, his employer knew of the opposition activity, and his employer discharged him. Wilmot, 118 Wn. 2d at 69 (quoted with approval in Allison, 118 Wn.2d at 89 n. 3). Discharge some length of time after the employee’s filing of a claim will be less likely to reflect an improper motive connected with that claim. Thus, as Larson suggests, in establishing the prima facie case, `[p]roximity in time between the claim and the firing is a typical beginning point, coupled with evidence of satisfactory work performance and supervisory evaluations. Evidence of an actual pattern of retaliatory conduct is, of course, very persuasive.’ (Footnotes omitted.) 1 L. Larson, Unjust Dismissal § 6.05[5], at 6-51. Wilmot, 118 Wn.2d at 69.

In his case in chief, Rylander presented the following evidence to demonstrate the College’s retaliatory motivation: (1) the close proximity in time between his complaint about the College’s discriminatory hiring of Williams and the College’s terminating his employment; (2) the stark contrast between the College’s sudden termination of Rylander and his highly satisfactory work performance and evaluations during the preceding five-year period; (3) the College’s failure to explain its reason for suddenly terminating Rylander, as he might otherwise reasonably have expected;[18] and (4) other non-administrative College-staff comments to Rylander, shortly after he filed his lawsuit, that he would never work at the College again, with no mention of incompetency. See n. 10, supra. See also Kahn, 90 Wn. App. at 130-31.

From this evidence, a jury could reasonably conclude that the College terminated Rylander, at least in substantial part, because he had sued the College for employment discrimination. Viewing Rylander’s evidence in the light most favorable to him, he satisfies this third retaliation prong. He filed his lawsuit against the College alleging discrimination on September 11, 1998. This lawsuit constituted `opposition activity.’ Because he served his complaint on the College, his employer (the College) knew about his opposition activity. Shortly thereafter, at least by the third Friday of October 1998, the College cancelled or reassigned his winter 1999 classes to others. Although Rylander had been teaching part-time at the College in an apparently exemplary fashion for the preceding five years, suddenly he was relieved of his teaching duties, even though Williams was incapable of teaching her classes and needed to be replaced. Moreover, at least one other professor had full confidence that Rylander could have ably taught these classes to the great benefit of the students.

Rylander has produced evidence to show that his racial/sex discrimination lawsuit was a significant factor in the College’s retaliatory adverse employment action toward him, especially in the absence of any other apparent reason. He presented a prima facie case of retaliation by the College, sufficient to defeat the College’s motion for directed verdict. Although he lacks `paradigm’ direct evidence of retaliation (such as a highly unlikely statement from Hasart that the College terminated Rylander in retaliation for his lawsuit), there is no other reasonable inference from the sequence of events. Whether characterized as circumstantial, indirect, inferential, or direct, his proofs are sufficient to avoid dismissal of his retaliation claim at the close of his case in chief.

And this is so, even if his discrimination claim ultimately fails. His bypassing McDonnell Douglas did not preclude his offered proofs (direct, inferential, and circumstantial) of retaliation. Rylander’s retaliation proofs were not dependent on the McDonnell Douglas production-shifting scheme. Rather, they were sufficient standing alone in his case in chief to survive the College’s CR50 motion for a directed verdict.

The trial court erred in ruling that Rylander’s retaliation claim fell with his discrimination claim. Even though we uphold the trial court’s adverse judgment as a matter of law on his gender discrimination claim, he is entitled to take his retaliation claim to the jury, along with his race discrimination claim.

IV. Evidentiary Rulings
Admission of evidence is within the sound discretion of the trial court, which we will not disturb on review absent a showing of abuse of discretion. State v. Swan, 114 Wn.2d 613, 658, 790 P.2d 610 (1990); State v. Stubsjoen, 48 Wn. App. 139, 147, 738 P.2d 306 (1987). Abuse occurs when the trial court’s ruling was manifestly unreasonable or discretion was exercised on untenable grounds. State v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999); State v. Gatalski, 40 Wn. App. 601, 606, 699 P.2d 804 (1985). The appellant bears the burden of proving abuse of discretion. State v. Hentz, 32 Wn. App. 186, 190, 647 P.2d 39
(1982).

The College dismissed Williams for incompetence several months after interviewing and hiring her. Thus, the trial court had sufficient grounds for ruling that her dismissal was not relevant to Rylander’s race discrimination claim. And the trial court did not abuse its discretion in excluding such evidence as to that claim.

But such is not the case, however, with respect to Rylander’s retaliation claim. That the College was in dire need of finding someone to teach Williams’ classes, and ultimately fired her for incompetence, is highly relevant to Rylander’s retaliatory discharge. This is especially so where the College not only failed to ask Rylander to teach Williams’ classes, but also cancelled his classes, soon after he sued the College. A jury could reasonably infer that absent a retaliatory motive, the College might otherwise have offered Williams’ position to Rylander, asked him to take over her classes, and, at the very least, kept him on staff to teach the classes for which he was already scheduled. As courts have repeatedly acknowledged, an employer’s express admission of retaliatory motive is so rare that typically plaintiff-employees must resort to inferences and other indirect proofs. Thus, we hold that it was an abuse of discretion to exclude evidence of Williams’ dismissal for purposes of proving Rylander’s retaliation claim.

Rylander next argues that the `White Privilege’ article, which Bell distributed to the diversity training seminar attendees, was admissible because it demonstrates an intent to inject race into the College’s hiring process. The trial court’s initial stated reason for `keep[ing] it out’ was based on the handout’s relevance: `I don’t see any nexus between [the handout] and the decision.’ Such ruling was within the trial court’s discretion, and we find no abuse. Rylander further contends that several excluded newspaper articles were relevant to show how the general atmosphere on campus could have motivated the College’s decision to hire a less-qualified minority candidate for the teaching position. Generally, newspaper articles are hearsay and inadmissible as evidence to prove the truth of the statements contained therein. State ex rel. Pierce Co. v. King Co., 29 Wn.2d 37, 45, 185 P.2d 134 (1947); Dallas Co. v. Comm. Union Assurity Co. Ltd., 286 F.2d 388, 392 (5th Cir. 1961). Again, the trial court did not abuse its discretion in excluding these articles.

V. Attorney Fees on Appeal
Rylander requests attorney fees on appeal, which RAP 18.1 allows `if applicable law grants to a party the right to recover reasonable attorney fees.’ Here, both RCW 49.60.030(2) and Title VII allow the prevailing party in a civil rights action to recover attorney fees and costs, in addition to damages. Title VII of the United States Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. See, e.g., Steele, 96 Wn. App. at 779.

Because Rylander has not yet prevailed on his race discrimination and retaliation claims, he is not yet entitled to attorney fees on this claim. Galbraith v. TACPCO Credit Union, 88 Wn. App. 939, 956-57, 946 P.2d 1242 (1997). But he may seek attorney fees under RCW 49.60.030(2) if he prevails on remand. Thus, we deny Rylander’s request for attorney fees because such entitlement cannot be determined until after trial on the merits. Hinman v. Yakima Sch. Dist. No. 7, 69 Wn. App. 445, 453, 850 P.2d 536 (1993) (no fee award on appeal from summary judgment because RCW 49.60 claims not yet decided on merits). Accordingly, we direct the trial court to determine the amount of fees and expenses to be awarded to Rylander for this appeal if he is the prevailing party on remand. RAP 18.1(j).

CONCLUSION
We affirm the trial court’s denial of Rylander’s CR 50 motion for judgment as a matter of law and the trial court’s directed verdict for the College on Rylander’s sex discrimination claim. We reverse the directed verdict for the College on Rylander’s race discrimination and retaliation claims and remand for a new trial. We affirm the trial court’s evidentiary rulings, except for its exclusion of evidence concerning the College’s termination of Williams for incompetence, which we reverse.

A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.

WE CONCUR: SEINFELD, J., BRIDGEWATER, J.