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Heath Tecna Aerospace v. Swanlund

March 31, 1997

HEATH TECNA AEROSPACE, A FOREIGN CORPORATION; AND CIBA GEIGY, A FOREIGN CORPORATION, RESPONDENTS
v.
EDWARD SWANLUND AND DON W. CHAMBERLAIN, APPELLANTS



Appeal from Superior Court of King County. Docket No: 92-2-25066-7. Date filed: 01/09/95. Judge signing: Hon. Robert J. Wesley.

PER CURIAM. Appellants Edward Swanlund and Don Chamberlain sued respondent Heath Tecna Aerospace, alleging that they were discharged as a result of their age. Following an adverse jury verdict, Swanlund and Chamberlain appeal, contending that the trial court erroneously instructed the jury to find in their favor only if age was a "determining factor," rather than a "substantial factor," in the decision. Heath Tecna concedes the jury instructions were erroneous, but maintains the error was harmless because the trial court should have granted Heath Tecna's motion for a directed verdict. Heath Tecna also cross-appeals an order awarding $1,500 in attorney fees as a sanction for renewing its motion for summary judgment.

We agree with Heath Tecna that the record does not support the trial court's imposition of sanctions. We conclude, however, that the trial court did not err in denying Heath Tecna's motion for a directed verdict and therefore remand for a new trial. Heath Tecna's motion to modify the commissioner's order of referral is denied.

Appellants Edward Swanlund and Don Chamberlain were among 29 salaried employees laid off by Heath Tecna on October 2, 1990. Swanlund, a research and development engineer, had worked for Heath Tecna for 21 years and was 53 years old; Chamberlain, who was 60 years old, was a staff engineer and had worked for Heath Tecna for 27 years. Both Swanlund and Chamberlain filed complaints with the Equal Employment Opportunity Commission. The EEOC concluded that the complaints lacked merit, and Swanlund and Chamberlain filed this action for age discrimination. Following a lengthy trial, the jury returned a verdict in favor of Heath Tecna.

The parties agree that the trial court, over the plaintiffs' objections, erroneously instructed the jury to find in the plaintiffs' favor only if it concluded that age was a "determining factor" in Heath Tecna's decision to discharge the plaintiffs. In Mackay v. Acorn Custom Cabinetry, Inc., 127 Wash. 2d 302, 898 P.2d 284 (1995), filed while this appeal was pending, the Supreme Court rejected the "determining factor" standard and held that in order to prevail on a discrimination claim brought under RCW 49.60.180(2), the plaintiff is required to establish that "an attribute listed in RCW 49.60.180(2) was a 'substantial factor' in an employer's adverse employment decision." Mackay, 127 Wash. 2d at 310. Heath Tecna argues, however, that the instructional error was harmless because the trial court should have granted Heath Tecna's motion for a directed verdict at the close of the evidence.

As a threshold matter, Swanlund and Chamberlain maintain that Heath Tecna may not raise this argument on appeal because it failed to designate the trial court's ruling in its notice of cross appeal and sought review only of the order imposing sanctions. We disagree.

Generally, this court will grant affirmative relief to a respondent by modifying the decision under review only if the respondent files a timely notice of cross appeal. See RAP 2.4(a). The trial court's ruling on Heath Tecna's motion for a directed verdict did not involve a distinct claim or cause of action that was inextricably linked with the final judgment; nor does Heath Tecna seek review of any specific portion of the judgment itself. See Smoke v. Seattle, 79 Wash. App. 412, 902 P.2d 678 (1995), review granted, 129 Wash. 2d 1005 (1996). Consequently, affirmance of the judgment on the basis urged by Heath Tecna does not constitute "affirmative relief" in the sense contemplated by RAP 2.4(a), and Heath Tecna was not required to file a notice of cross appeal. See Nord v. Phipps, 18 Wash. App. 262, 266 n.3, 566 P.2d 1294 (1977), review denied, 89 Wash. 2d 1014 (1978) (respondent need not file cross appeal when urging additional grounds for affirmance).

The appellants' reliance on Strother v. Capitol Bankers Life Ins. Co., 68 Wash. App. 224, 240, 842 P.2d 504 (1992), rev'd. on other grounds, Ellis v. William Penn Life Assur. Co., 124 Wash. 2d 1, 873 P.2d 1185 (1994), is misplaced. Unlike Heath Tecna, the respondent in Strother was also seeking affirmative relief, i.e., reversal of an adverse ruling on a totally distinct cause of action. Because Heath Tecna did not need to file an appeal in order to argue alternative grounds for affirmance, we now consider whether the verdict should be affirmed because the case should not have been submitted to the jury at all.

A motion for a directed verdict, now designated a motion for judgment as a matter of law, may be granted only if it can be said that no evidence or reasonable inferences exist to sustain a verdict for the party opposing the motion; the evidence must be viewed in the light most favorable to the nonmoving party. Bender v. Seattle, 99 Wash. 2d 582, 587, 664 P.2d 492 (1983); CR 50. In order to establish a prima facie case of age discrimination, the plaintiff must show that he or she was discharged, fell within the protected age class, was doing satisfactory work at the time of discharge, and that he or she was replaced by a younger worker or was otherwise discharged because of age. See Carle v. McChord Credit Union, 65 Wash. App. 93, 99, 827 P.2d 1070 (1992).

Once the plaintiff has established a prima facie case, the burden shifts to the employer to come forth with evidence of a legitimate, nondiscriminatory reason for the challenged decision. Kuyper v. State, 79 Wash. App. 732, 735, 904 P.2d 793 (1995), review denied, 129 Wash. 2d 1011, 917 P.2d 130 (1996). If the employer meets its burden of demonstrating a nondiscriminatory basis for the decision, the initial presumption drops completely from the case, and the plaintiff bears the burden of persuading the trier of fact that the reason given is merely pretextual for intentional discrimination. Kuyper, 79 Wash. App. at 736.

In order to create a pretext issue, the plaintiff must produce some evidence that the articulated reason for the employment decision is not credible:

To do this, a plaintiff must show, for example, that the reason has no basis in fact, it was not really a motivating factor for the decision, it lacks a temporal connection to the decision or was not a motivating factor in employment decisions for other employees in the same circumstances.

Kuyper, 79 Wash. App. at 738-39. If the record contains reasonable, but competing inferences of both discrimination and nondiscrimination, "it is the jury's task to choose between such inferences." Carle, 65 Wash. App. at 102.

At trial, Heath Tecna presented evidence tending to show that the October 1990 layoffs were the result of several factors, including the company's need to reduce expenses following several years of unprofitability and a general shift away from the development of new products. The primary focus of the company increasingly became the manufacture of products designed by others and the support of those existing production contracts.

At the time of the layoffs, Mel Classen was Director of Technical Services for Heath Tecna and responsible for overseeing all engineering services. Classen testified that after reviewing the budget for the coming year, the company determined that it was necessary to reduce expenses by cutting 29 positions. Classen requested that each of his 5 ...


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