The opinion of the court was delivered by: Penoyar, J.
Thurston County appeals from a jury verdict holding the County liable based on hostile work environment and retaliation claims. The County asserts that (1) it is not liable for the acts of the prosecuting attorney, Edward Holm; (2) the trial court erred in allowing evidence outside the statute of limitations, in not applying collateral estoppel, and in allowing marital discrimination evidence; (3) the trial court erred in not allowing evidence detailing a meeting in which the plaintiffs and another deputy prosecutor consulted an attorney; (4) the jury's verdict was excessive; and (5) the trial court abused its discretion in setting the plaintiffs' attorney fee award. We affirm.
Audrey Broyles began work as a deputy prosecuting attorney (DPA) for the Thurston County Prosecutor in 1993. She served as a misdemeanor prosecutor, as the juvenile division supervisor, and, at the time Holm took office in January 1999, as the felony prosecutor in charge of domestic violence cases. Holm kept her in this felony prosecution role but also made her the juvenile division supervisor. Later that same year, Holm assigned her the additional responsibility of screening all the misdemeanor domestic violence cases. In January 2000, Holm promoted her from a DPA III to a Senior Deputy, though she was placed in a lower pay scale range than other Senior DPAs.
In November 2000, Broyles, Vonda Sargent, Susan Sackett-DanPullo, and Christy Peters met with Holm to voice their concerns about Phil Harju, their supervisor, and Jack Jones, a felony DPA. They asked Holm to remedy an "intolerable" situation that included Jack Jones's "demeaning and volatile behavior" and concerns for their safety. Report of Proceedings (RP) at 99-100. They described Phil Harju's unwillingness to control Jones, his "disparate treatment of the women," and his repeated references to others about Broyles having a "special relationship" with Holm. RP at 100. Broyles explained that Holm expressed concern, that this was an office culture that would take time to remedy, and that things would probably get worse before they got better.
After this meeting with Holm, Peggy Quan, the County Human Resources Director, met with each of the women and with other DPAs. During trial, Broyles explained what she was feeling at the time:
It made it very difficult and very demeaning to have other individuals in the office think that I was in the position that I was because I was having a sexual relationship with my boss. It was extremely demeaning and humiliating to me. I felt that once Ed knew about the concern that that was the rumor that was being perpetrated in the office, that he could take some action to correct that, and he did not. It was very humiliating for me to think that I was looked at as someone who was getting special treatment, or perceived special treatment because of a relationship instead of based on my merits as an attorney.
RP at 108-09. Even though Quan said that she would get back to Broyles after her investigation, she did not. Broyles explained that the atmosphere in the office got much worse after the meeting and that she and the other women had to endure cold shouldering, nonresponsiveness, snide remarks, and lack of communication from five male DPAs.
In December 2000, because the atmosphere in the office continued to deteriorate, the four women sought legal advice. They did not retain the attorneys at that point but waited to see if matters would improve. Matters did not improve, and at one staff meeting, Holm even commented that "we also have to deal with this woman issue." RP at 114.
In early 2001, Holm asked Broyles to develop a new domestic violence unit that would handle both misdemeanors and felonies. This change involved extensive coordination between the courts, the defense, the sheriff's office, and assigning four DPAs to handle the case load. Broyles had a target date of July 1, 2001. Broyles encountered resistance to the change from Mark Thompson, the DPA in charge of the misdemeanor unit. Just as her new unit was getting started, Thompson and James Powers obtained Holm's permission to take two of her DPAs to cover the misdemeanor division. After a volatile discussion with Holm about him not supporting her efforts, Broyles found herself crying, hyperventilating, very emotional, and distraught. She then left the office, sought medical care, and followed her doctor's advice to take medical leave from work. In August, the plaintiffs filed their notice of claim against the county.
Broyles returned to work on September 17, 2001, as the supervising attorney in the juvenile division. She described the situation in the office as worse and that she had to endure comments from Holm that she was a queen bee and building her empire. She also described his commenting on women's breasts and other anatomy.
On December 31, 2001, Holm terminated Broyles. Believing that she had been fired in retaliation for her hostile work environment claim, Broyles asked the County Council to reinstate her. The Council granted her request, reinstated her pay back to her termination date, and continued to pay her until she relocated to Oregon in May 2004, even though Holm refused to allow her to work for him.
Vonda Sargent began working for the Thurston County Prosecutor in 1997. Before Holm took office in January 1999, she prosecuted misdemeanors and gross misdemeanors in district court. During that time, she was promoted from a DPA I to a DPA II. Shortly after Holm took office, he moved Sargent from the misdemeanor division to the felony division to handle the felony preliminary appearance and the non-compliance calendars. In late January early February 2000, Holm asked Sargent to join Broyles on the domestic violence unit. Sargent did not want this transfer, told Holm this, but changed her mind after Harju and Thompson told her she really had no choice. When Sargent had difficulties with Jack Jones, she went to Harju, who was her supervisor. He told her to "just let it go . . . let Jack calm down . . . let it go and let it all die -- die down." RP at 500.
During June or July, Sargent began sharing her experiences in the office with Broyles, Peters, and Sackett-DanPullo. This was necessary, she felt, because the office situation was "unbearable," "uncomfortable," and "frightening." RP at 505. Sargent described the office atmosphere as getting more hostile as time progressed. She described how difficult it was to get someone to cover for you, the lack of communication in the office, and being subject to heightened scrutiny.
When the four women DPAs met with Holm in the previously described meeting in November 2000, Sargent said they all related their concerns for sexualized behavior, hostility, and not getting the same advancement opportunities as men. At Holm's request, she too met with Peggy Quan and, though Quan noted Sargent's concerns, Quan never got back to her or did anything as a result of the meeting.
According to Sargent, after the meeting with Holm, the atmosphere in the office became "like walking into enemy camp every morning." RP at 530. Sargent described feeling alone because Holm had moved Sackett-DanPullo to Lacey and had moved both Broyles and Peters to the juvenile building.
Regarding the January 2001 reorganization, Sargent explained that she found that it did not remedy the women's concerns but, to the contrary, promoted the men and shuffled the women out of the main office. One consequence of Broyles taking medical leave was that Sargent was then assigned misdemeanors and Harju took her felony cases. As to whether the reorganization changed Harju's supervisory role, she testified:
Phil Harju, even with that organizational chart, continued to hold himself out as my supervisor in a number of ways, including demanding how I enter and exit the office, demanding to know where I was going and when I was going to be back, demanding to know -- demanding that I go to him directly if I needed any leave. So that's why I say that it's just on paper.
RP at 542. She complained to Holm about the reassignment after Broyles took medical leave. His response was that "he could send me back to misdemeanor with the rest of the girls." RP at 544.
In September or October, Sargent left the prosecutor's office for a job at State Farm. She explained why:
I couldn't take it anymore. I had -- I -- I couldn't give any more. I had been put back in the misdemeanor division, just like Mr. Holm promised me that he would. I was assigned a misdemeanor caseload, just like he promised me that he would. There was no future for me there.
Susan Sackett-DanPullo began working for the Thurston County Prosecutor in February 1995. She began with felony preliminary appearances and then moved into misdemeanors. In January 1996, she moved to the juvenile division under Broyles' supervision. After about a year, she moved back to the misdemeanor division as a supervisor. Then, in 1998, moved back to the juvenile division as a supervisor when Broyles was assigned to the felony division.
When Holm took office, he wanted Sackett-DanPullo to spend more time doing trial work, so he relieved her of her supervisory responsibilities. In July 1999, she became the lead DPA for the juvenile division as Broyles' focus changed to domestic violence.
In July 2000, there was an opening in the general felony unit and Sackett-DanPullo expressed her interest in the position to Holm. At first Holm was supportive but later told her that he would rather she worked in community prosecution. When she told him she was not interested in that position because she wanted to do trial work, Holm responded, "you'll be great for it. You're -- you know, you live out in Lacey, which is where they thought it would be. And your husband's black, it's a great fit for you." RP at 1377.
In November 2000, Sackett-DanPullo attended the meeting between the four female DPAs and Holm. Her concerns involved the demeaning conduct occurring in the general felony meetings, which she described as run like a good old boys club; Harju's lack of leadership and suggestion that Broyles had a special relationship with Holm; Jones's bullying; and the discomfort she felt when speaking with Harju because he would continually stare at her breasts rather than looking her in the eyes.
Sackett-DanPullo too was dissatisfied with the January 2001 reorganization. Further, she had several incidents in which Holm described various women based on their breast size and whether they were good looking. He made sexualized comments to her, mentioning at one time that he could save expenses by sharing a room with a female Lacey Police officer, who he described as really good looking. With regard to a conference in Lacey, Holm said that it was too bad Sacket DanPullo was sharing a room with another woman because otherwise he could come to her room until her husband got there.
Sackett-DanPullo testified that no one in the office would talk to her after the plaintiffs filed their tort claim. She described incidents where Jones engaged in inappropriate behavior toward her that, at one point, had her fearing for her own safety. She described the office as polarized and explained that her time sheets were unfairly scrutinized. After what she described as a volatile disagreement with Holm in early November 2001, over whether she could have someone present in a meeting he wanted to have with her, Sackett-DanPullo broke down, sought medical attention, and ended up on sick leave until January 4, 2002. RP 1455-58. She returned to a very hostile office where everyone had just learned that Holm had fired Broyles.
Holm also denied Sackett-DanPullo's request for a full-time felony position and insisted that she take a half-time community prosecution position and half-time felony position. In August 2002, she again went on medical leave.
Holm informed her in December 2002, after she returned from medical leave, that he would not be renewing her appointment. She described the effect this had on her:
It was devastating. That's all I wanted to be. I never -- I was the first person in my family to go to school. I put myself through school. I wanted to make a better life for my daughter. And I felt like I was doing a service to people and -- giving back to the community, and working hard. . . .
I just felt like I shouldn't have to leave. That I'm not the one that created the problems and it shouldn't be me that has to leave. And that wasn't fair.
On January 11, 2002, the plaintiffs filed a lawsuit (Broyles I) in Thurston County Superior Court against four defendants, Edward Holm, Phillip Harju, James Powers, and the Thurston County Office of the Prosecuting Attorney. The plaintiffs filed an amended complaint three weeks later, naming the three individual defendants and "THURSTON COUNTY; (THURSTON COUNTY OFFICE OF THE PROSECUTING ATTORNEY)." Clerk's Papers (CP) at 3969-70. All three plaintiffs alleged complaints for sex discrimination, hostile work environment, and retaliation. Sargent had an additional claim for race discrimination. Sackett-DanPullo had an additional claim for marital status discrimination.
In March 2003, the plaintiffs agreed to dismiss all claims against Powers without prejudice. On September 26, 2003, following a contested hearing, the trial court dismissed all claims against Harju with prejudice. The trial court also dismissed Sargent's racial discrimination claim and Sackett-DanPullo's marital discrimination claim.
On May 3, 2004, the trial court informed the parties that there would not be a jury trial, even though the County had demanded a jury trial, and the parties and the trial court had entered such a stipulation. Therefore, the plaintiffs took a voluntary non-suit under CR 41(a)(1)(B). Two days later, on May 5, 2004, the plaintiffs refiled their action in Mason County Superior Court against "THURSTON COUNTY (THURSTON COUNTY OFFICE OF THE PROSECUTING ATTORNEY"). CP at 4416-24. As in Broyles I, the County admitted that the plaintiffs were County employees and denied that Holm acted on the County's behalf.
On March 6, 2006, the County filed two summary judgment motions. The trial court granted the County's motions in part, dismissing some claims.*fn1 However, the trial court denied the motions insofar as they were based on the following four arguments: (1) that plaintiffs' allegations were time-barred as based on acts occurring before May 6, 2001; (2) that plaintiffs could not base liability on previously dismissed acts; (3) that the acts plaintiffs cited in support of its retaliation and constructive discharge claims were not actionable; and (4) that the County could not be liable for any wrongful acts Holm may have committed because it did not control his actions.
Before trial, the court granted in part the plaintiffs' motion to exclude evidence that Sargent sued her former employer, Foster Pepper, and her later employer, State Farm, for emotional distress. The trial court granted the motion as to State Farm but allowed the County to present evidence that Sargent sued Foster Pepper in order to establish an alternative cause of her injuries.
The trial court also granted the County's motion in limine to exclude "[a]ny reference to punitive damages, including any reference, statement or insinuation that the jury should send a message to Thurston County." CP at 2643. The trial court denied the County's motion to amend its answer to retract its admissions that the plaintiffs were county employees.
After a three-week trial, the jury found in favor of all three plaintiffs, awarding $599,000 to Broyles, $250,000 to Sargent, and $673,000 to Sackett-DanPullo. The trial court later denied the County's motion for judgment as a matter of law or for a new trial.
The plaintiffs then moved for an award of attorney fees under the Washington Law Against Discrimination, chapter 49.60 RCW, (WLAD), asking for fees for the work in both Broyles I and Broyles II. The court granted this motion, awarding $1,296,108 in attorney fees and $158,474.62 in costs. The trial court used a 1.5 lodestar multiplier in setting its attorney fees award.
I. Thurston County's Liability
A. Effect of County's Admissions
Preliminarily, the parties dispute whether the County, in effect, conceded liability by admitting in its answer to the plaintiffs' complaint that the County was the employer. The County answered:
1. In answer to paragraph 1 of the Complaint, defendant admits that plaintiff Audrey Broyles was an employee of Thurston County, and that she worked as a Deputy Prosecuting Attorney in the Criminal Division of the Thurston County Prosecutor's Office. Except as specifically admitted, the defendant denies every other allegation therein.
2. In answer to paragraph 2 of the Complaint, defendant admits that plaintiff Vonda Sargent was an employee of Thurston County, and that she worked as a Deputy Prosecuting Attorney in the Criminal Division of the Thurston County Prosecutor's Office. Except as specifically admitted, the defendant denies every other allegation therein.
3. In answer to paragraph 3 of the Complaint, defendant admits that plaintiff Susan Sackett-DanPullo was an employee of Thurston County, and that she worked as a Deputy Prosecuting Attorney in the Criminal Division of the Thurston County Prosecutor's Office. Except as specifically admitted, the defendant denies every other allegation therein. . . . .
5. In answer to paragraph 5 of the Complaint, defendant denies that any and all alleged acts or omissions complained of were on behalf of Thurston County occurred within the scope of any manager, supervisor, agent, employee or representative's employment. Furthermore, defendant specifically denies that the acts or omissions of Prosecutor Edward Holm, an independently elected official, were on behalf of Thurston County or that Holm was an employee, agent or representative of Thurston County. Thurston County additionally denies any agency and/or [respondent] superior responsibility for the alleged actions of Harju and Powers since these defendants have been dismissed with prejudice. Except as specifically admitted, the defendant denies every other allegation therein.
The County asserts that the admission was not an acceptance of vicarious liability for Holm's actions. It points out that one may raise an affirmative defense of failure to join an indispensable party in any pleading, by any motion, or at the trial on the merits. CR 12(h)(2).*fn3
The County also argues that the court is not bound by a legal admission, as opposed to a factual one. State v. Knighten, 109 Wn.2d 896, 902, 748 P.2d 1118 (1988). Finally, it argues that the plaintiffs cannot show any justifiable reliance on the admission as the remainder of its answer clearly spells out that it is contesting its liability for Holm's actions.
The plaintiffs disagree, claiming they justifiably relied on the admission and that the County should be held to this admission. Neilson v. Vashon Island Sch. Dist. 402, 87 Wn.2d 955, 958, 558 P.2d 167 (1976). They claim that the County's belated efforts to ignore its own factual admissions are not permitted. CR 8(b).*fn4 And finally, they argue that this was a factual admission and that the County is bound by it, pointing out that State v. Knighten, 109 Wn.2d at 902, holds that the court is not bound by a legal admission. It does not hold that an admission does not bind a party.
In reply, the County, relying on Card v. W. Farmers, 72 Wn.2d 45, 47, 431 P.2d 206 (1967), argues that it expressly gave notice to the plaintiffs that it was denying liability for Holm's actions and that it argued that theory throughout the litigation. It further argues that here, where the facts about the relationship between the parties were undisputed, the question of agency is one of law, not of fact, and thus it did not make a factual admission but a legal one. O'Brien v. Hafer, 122 Wn. App. 279, 284, 93 P.3d 930 (2004).
Card controls. There, the plaintiff never denied the allegations in the counterclaim, but the plaintiff served interrogatories on the evidence in support of the counterclaim and the matter was fully litigated at trial. On appeal, the defendant claimed that he was entitled to judgment because the plaintiff never denied its averments. The court held:
When the parties went to trial on a record wherein the counterclaim was not answered, defendant might have relied on Rule of Pleading, Practice and Procedure 8(d) (now CR 8(d)), and claimed the averments of the counterclaim were admitted, but when the trial was conducted entirely on the issues of the account, all such admissions were deemed waived and the trial court properly treated the case as if a general denial were in the record, thus putting at issue all of the material facts of the counterclaim.
Card, 72 Wn.2d at 48. The County clearly denied any liability for Holm's actions from the onset of the litigation through trial. There could be no detrimental reliance by the plaintiffs. We address the claim.
The County further argues that it cannot be liable for the Prosecuting Attorney's acts because it could not control Holm or how he ran his office and that no agency relationship existed. The County further argues that if the plaintiffs wanted relief from Holm's actions, they needed to sue the Prosecuting Attorney's Office as it is independently liable under RCW 36.16.050(6) on the official bond. It argues that the legislature intended for public officials to defend themselves against suits involving their offices as any other reading would render the legislative mandate that the elected official "shall be responsible for the acts of his appointees upon his official bond" superfluous and unnecessary. RCW 36.16.070.
The plaintiffs argue two bases for finding the County liable: First, Holm was a county officer and as an owner, manager, partner, or corporate officer who personally participated in the harassment, his conduct is per se evidence of imputation. Glasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 407, 693 P.2d 708 (1985). Second, the County's failure to respond to the reported harassment after investigating the allegations made it liable for the unlawful harassment. Glasgow, 103 Wn.2d at 407.
Initially, the plaintiffs correctly point out that the County, not the county council, is a proper defendant, citing Nolan v. Snohomish County, 59 Wn. App. 876, 802 P.2d 792 (1990). Nolan held:
RCW 36.32.120(6), read together with RCW 36.01.010 and .020, makes clear the legislative intent that in a legal action involving a county, the county itself is the only legal entity capable of suing and being sued. It follows that a county council is not a legal entity separate and apart from the county itself. Jurisdiction over the Snohomish County Council is achieved by suing Snohomish County. No purpose would be served by naming both the County and the County Council in this proceeding. The County argues that they are both indispensable parties, but the law gives no support to such a contention.
Nolan, 59 Wn. App. at 883. The same logic applies here: the County, not the prosecutor, is the proper party.*fn5
A county is a municipal corporation authorized by law to exercise powers the state grants to it. RCW 36.01.010. The county is no single person or entity. Rather, it exercises its powers through various commissioners, officers, and agents. RCW 36.01.030. Here, we hold that the county is not shielded from the administrative actions of its prosecutor or deputy prosecutors merely because their part of the county function lies in the prosecutor's office.
First, a corporation is "an artificial being, invisible, intangible, and existing only in contemplation of law," which by necessity "must act through its officers, directors, or other agents." 18 Am. Jur. 2d Corporations §§ 1, 2 (2004). Similarly, a municipal corporation, such as a county, can only act through its agents. See Houser v. City of Redmond, 91 Wn.2d 36, 40, 586 P.2d 482 (1978). When a municipal corporation's agents act within the scope of their employment, their actions are the actions of the municipal corporation itself. See Houser, 91 Wn.2d at 40. As a county officer, the prosecuting attorney exercises the county's delegated power. RCW 36.16.030; State v. Whitney, 9 Wash. 377, 379, 37 P. 473 (1894) (prosecuting attorney is county officer). Therefore, when a county officer, such as a prosecuting attorney or deputy prosecuting attorney, exercises the county's powers, the officer's actions are the actions of the county itself.
Second, the County is liable for its Prosecuting Attorney's discriminatory employment acts. Especially in the context of employment discrimination, either the state or local government must be responsible for the actions of the officers and agents that exercise governmental powers and act on the government's behalf. The Third Circuit recognized this principle when faced with a situation similar to ours in Coleman v. Kaye, stating:
The extension of . . . agency principles to Coleman's sex discrimination suit against the County of Monmouth is logically unacceptable because county prosecutors are clearly government officials who, reason dictates, must be acting on behalf of some governmental entity when they make personnel decisions. The agency paradigm fails here because it would require us to reach the specious conclusion that Prosecutor Kaye was not acting under the authority of any state governmental body, either state or county.
Coleman, 87 F.3d 1491, 1503 (1996) (emphasis added). The Coleman court went on to consider which level of state government county prosecutors "belong" to when making personnel decisions, concluding that "county prosecutors are acting as county ...