Appeal from Superior Court of Spokane County. Docket No: 93-2-05726-6. Date filed: 08/02/95. Judge signing: Hon. William J. Grant.
Authored by Philip J. Thompson. Concurring: John A. Schultheis, Frank L. Kurtz.
The opinion of the court was delivered by: Thompson
THOMPSON, J. Brenda L. Wilson appeals a judgment in favor of her former employer, Olivetti North America, Inc., in her action involving claims for sexual harassment and constructive discharge. We agree the trial court improperly denied her a jury trial and reverse.
Ms. Wilson was a "rework specialist" in Olivetti's National Repair Center. On May 19, 1993, coworker Bart Deiss commented to Ms. Wilson: "Brenda, does your husband know that you leave home dressed like that? No wonder women in society today get raped." Turning to another employee, Mr. Deiss asked: "Bob, would you let your wife leave home like that?" Ms. Wilson became upset and obtained permission to leave work early.
Other employees reported Mr. Deiss's comments, which eventually came to the attention of Stanley Dahlin, Olivetti's employee relations manager. Mr. Dahlin spoke with several of the employees and prepared a memo detailing the incident. Mr. Dahlin then instructed Mr. Deiss's supervisor, Mark Haskins, to give Mr. Deiss a written warning and to inform him a reoccurrence would result in further discipline, possibly including termination.
Mr. Haskins filled out an "Employee Warning Report" form, listing the type of violation as "Sexual Harrassment [[sic__" and stating "The one comment was made, followed by 'I guess that's not my place to say' also, no intentional malice was in mind." The report was placed in Mr. Deiss's personnel file, with Mr. Dahlin's report of the incident attached. Mr. Haskins testified he orally told Mr. Deiss he could be fired if he repeated the behavior and he should "stay away from Brenda Wilson." Mr. Deiss recalled Mr. Haskins telling him: "This is a written warning. If anything happens like this again, you could lose your job."
Ms. Wilson testified that after the incident she suffered stress that caused hives, headaches, and nausea. She said she told Mark Skidmore, her department specialist, about the problems. Ms. Wilson also noticed coworkers began treating her coldly and refused to respond to her greetings. Mr. Skidmore testified Ms. Wilson informed him about the cold treatment, but he told her it was "something . . . I couldn't affect." Mr. Skidmore did not relay Ms. Wilson's complaints to his supervisor.
About two weeks after the incident with Mr. Deiss, Ms. Wilson was asked to work temporarily in Mr. Deiss's area. She objected that it was too soon after the incident and that she would be uncomfortable, but reluctantly agreed. When she asked Mr. Deiss for help with an unfamiliar procedure, she testified, Mr. Deiss gave her only minimal help and tossed an instruction pamphlet at her. Ms. Wilson testified that she complained again to Joe Murphy, her department supervisor, but he told her, "I really need you to do it." Mr. Murphy testified he reassigned Ms. Wilson as soon as she told him she no longer could work near Mr. Deiss.
Ms. Wilson voluntarily quit her job on June 22, 1993, without giving Olivetti an explanation. She filed two complaints alleging (among other things) sexual harassment and constructive discharge in violation of the Civil Rights Act of 1964, 42 U.S.C.A. sec. 2000e-2(a) (West 1994), and of the Washington Law Against Discrimination, RCW 49.60. The captions of both complaints contained the words "DEMAND FOR JURY TRIAL." Ms. Wilson also filed a separate demand for a six-member jury and paid the required $50 fee, but she failed to serve the separate jury demand on Olivetti.
On June 14, 1994, the parties filed a joint status report indicating a 12-person jury would be demanded. On June 22, 1995, four days before the trial began, Olivetti moved to strike Ms. Wilson's demand for a jury trial. Olivetti's attorney argued it had not had previous notice that a jury trial was demanded, and the prejudice to Olivetti was "somewhat obvious." The court granted the motion, and the case was tried to the bench. After the trial, the court rejected both the constructive discharge and sexual harassment claims and denied Olivetti's request for attorney fees.
The dispositive issue is whether the trial court improperly struck Ms. Wilson's demand for a jury trial. In Washington, the right to a trial by jury is "inviolate" and may not be impaired by either legislative or judicial action. Const. art. 1, sec. 21; Geschwind v. Flanagan, 121 Wash. 2d 833, 839-40, 854 P.2d 1061 (1993); see Sofie v. Fibreboard Corp., 112 Wash. 2d 636, 771 P.2d 711, 780 P.2d 260 (1989). CR 38(a) preserves this constitutional right, and the rule further provides in pertinent part:
(b) Demand for Jury. At or prior to the time the case is called to be set for trial, any party may demand a trial by jury of any issue triable of right by a jury by serving upon the other parties a demand therefor in writing, by filing the demand with the clerk, and by paying the jury fee required by law. If before the case is called to be set for trial no party serves or files a demand that the case be tried by a jury of twelve, it shall be tried by a jury of six members with the concurrence of five being required to reach a verdict.
(d) Waiver of Jury. The failure of a party to serve a demand as required by this rule, to file it as required by this rule, and to pay the jury fee required by law in accordance with this rule, constitutes a waiver by him of trial by jury.
Spokane County Superior Court LR 38(a)(1) requires that a demand for a jury trial "be contained on a separate document."
Even if a party fails to comply with the rules for demanding a jury trial, the court may in its discretion order a jury trial. CR 39(b); see Balise v. Underwood, 71 Wash. 2d 331, 339-40, 428 P.2d 573 (1967); Davis v. Falconer, 159 Wash. 230, 232-34, 292 P. 424 (1930); Mount Vernon Dodge, Inc. v. Seattle-First Nat'l Bank, 18 Wash. App. 569, 581, 570 P.2d 702 (1977).
In this case, Ms. Wilson complied with CR 38(b) and submitted a separate jury demand as required by LR 38(a)(1). However, she failed to serve the separate demand on Olivetti, as the local rule apparently envisions. The parties have not cited any Washington authorities, nor have we found any, that discuss whether a party's failure to comply with a local rule waives the constitutional right to a jury trial. In the federal system, a party's failure to comply with Fed. R. Civ. P. 38 is a waiver of the right to a jury trial, "even though it was inadvertent and unintended and regardless of the explanation or excuse." 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure sec. 2321, at 166 (2d ed. 1995) (footnote omitted); see Biesenkamp v. Atlantic Richfield Co., 70 F.R.D. 365, 366 (E.D. Pa. 1976). However, the right to a jury ...