I.          ASSIGNMENTS OF ERROR

            A.  Superior court improperly granted respondent King’s Command Foods summary judgment dismissing the appellants and improperly denied appellants’ cross motions for partial summary judgment, the undisputed facts were sufficient to establish that race was a substantial factor in every adverse employment action taken against every appellant and that a racially hostile work environment existed that affected the terms and conditions of employment of every appellant.  Cross motions can be granted by this Court on appeal, Impecoven v. Dept. of Revenue, (1992) 120 Wash. 2d. 357, 365, 842 P. 2d. 752.

            B.  Superior court improperly awarded sanctions, Sub No. 86, CP 38-39 and improperly refused appellants’ CR 60 motion to vacate, Sub No. 82, CP 19-28, Order Awarding Entry of Judgment, Sub No. 310, CP 1531-1535, the request for sanctions not identified and noted for hearing as required by CR 7(b) and CR 10(a).

            C.  Superior court improperly awarded sanctions against the appellants for discovery issues when most of the discovery problems were due to lack of cooperation from the respondent and the respondent’s excessive and unnecessary discovery requests and unwarranted complaints about the appellants’ responses.  The Special Master applied a strict standard to the appellants and no standard to the respondent.

II.         STATEMENT OF THE CASE

            On December 20, 1999 the appellants filed the Complaint for Discrimination in Employment, Sub No. 1, CP 1-3.

            On March 22, 2001, the appellants filed the First Amended Complaint for Discrimination in Employment, Sub No. 55A, CP 4-6.

            On June 15, 2001, the Order Granting Plaintiffs’ Motion to Amend Complaint and Imposing Sanctions, Terms, and Conditions, Sub No. 78 missing from case file, Sub No. 86, CP 38-39, refiled on June 22, 2001.

            On June 25, 2001, the appellants filed a Motion for Vacation of Provisions of Order Imposing Sanctions, Sub No. 82, CP 19-28.

            On November 2, 2001 the respondent filed its Motion for Summary Judgment to Dismiss Plaintiffs Sylvester Pittman, Re-Lashia Searles, James Goode, and Michael Pittman, Sub No. 121.

            On November 9, 2001 the respondent filed its Motion for Summary Judgment to Dismiss Plaintiffs David Abruquah, Benjamin Barnes, Arthur Forest, Nathan Kilcrease, and Curtis Hollis, Sub No. 124.

            On December 21, 2001 the respondent filed its Motion for Summary Judgment to Dismiss Plaintiffs Michael Davis, Joseph Donkor, Yolanda Eskridge, and Sidney Lanier, Sub No. 137.

            On December 28, 2001 the respondent filed its Motion for Summary Judgment to Dismiss Plaintiffs Coleman, Darrel Cody and Gregory Cody, Sub No. 144.

            On January 8, 2002 the appellants filed their Cross Motion for Summary Judgment, Sub No. 188C, CP 949-953 and their Response in Opposition to Defendant’s Motions for Summary Judgment, Sub No. 188D, CP 954-976.

            On January 11, 2002 the respondent filed its Motion for Summary Judgment to Dismiss Plaintiffs T. Davis, Diquon, and Kern, Sub No. 208.

            On January 15, 2002 the appellants filed their Cross Motion for Summary Judgment, Sub No. 218, CP 1229-1233 and their Response in Opposition to Defendant’s Motion for Summary Judgment to Dismiss Plaintiffs Coleman, D. Cody and G. Cody, Sub No. 228, CP 1244-1254.

            On January 17, 2002 the respondent filed its Motion for Summary Judgment to Dismiss Plaintiff Larry Pittman, Sub No. 237A.

            On January 29, 2002 the appellants filed their Response in Opposition to Defendant’s Motion for Summary Judgment to Dismiss Plaintiff Larry Pittman, Sub No. 252O, CP 1345-1348 and their Response in Opposition to Defendant’s Motion for Summary Judgment to Dismiss T. Davis, Diquon, Kern, and Ahrin, Sub No. 252Q, CP 1349-1392.

            On February 1, 2002, the respondent filed its Motion to Compel Discovery Answers from Plaintiffs, Sub No. 262.

            On February 5, 2002 the appellants filed their Response in Opposition to Defendant’s Motion to Compel Discovery Answers from Plaintiffs, Sub No. 262E, CP 1393-1402.

            On February 7, 8, and 14, 2002, there were hearings before Judge McDermott, Notes, Sub No. 272, CP 1421, Notes, Sub No. 275A, CP 1422, and Notes, Sub No. 280, CP 1425, Verbatim Transcripts.

            On February 13, 2002, the superior court entered its Order Granting Sanctions on Defendant’s Motion for Protective Order, Sub No. 279A, CP 1423-1424.

            On March 21, 2002, the superior court entered its Order Granting Defendant’s Motion for Summary Judgment to Dismiss Plaintiffs, Sub No. 286A, CP 1426-1432.

            On March 29, 2002, the appellants filed their Motion for Reconsideration of Orders Granting Defendant Summary Judgment, Sub No. 287B, CP 1449-1472.

            On April 8, 2002, the superior court entered its Order Granting Sanctions on Defendant’s Motion to Compel Discovery Answers from Plaintiffs, Sub No. 295A, CP 1489-1491.

            On April 11, 2002, the appellants filed their Response in Opposition to Defendant’s Motion to Enforce Sanctions and Motion to Vacate Award of Sanctions, Sub No. 296, CP 1492-1507.

            On April 25, 2002, the superior court entered its Order Awarding Sanctions, Sub No. 299, CP 1508-1509.

            On May 13, 2002, the superior court entered its Order Denying Motion for Reconsideration, Sub No. 302A, CP 1510.

            On June 4, 2002, the superior court entered its Order Awarding Entry of Judgment, Finding of Contempt, and Award for Fees and Costs, Sub No. 310, CP 1531-1535.

            On June 6, 2002, the appellants filed their Notice of Appeal, Sub No. 309, CP 1521-1530.

III.       ARGUMENT

A.        Standards for Summary Judgment

            Trimble v. Washington State Univ., (2000) 140 Wash. 2d. 88, 92-93, 993 P. 2d. 259: 

            The standard of review on summary judgment is well settled.  Review is de novo; the appellate court

 engages  in the same inquiry as the trial court.  Benjamin v. Washington State Bar Ass'n, 138 Wn.2d 506, 

515, 980 P.2d  742 (1999).  Summary judgment is appropriate if there is no genuine issue of material fact and

 the moving party is  entitled to judgment as a matter of law.  Clements v. Travelers Indem. Co., 121 Wn.2d

 243, 249, 850 P.2d 1298  (1993); CR 56(c).  All facts submitted and all reasonable inferences from them are

 to be considered in the light most  favorable to the nonmoving party. Clements, 121 Wn.2d at 249.  “The

 motion should be granted only if, from all the  evidence, reasonable persons could reach but one conclusion.”

 Clements, 121 Wn.2d at 249 (citing Wilson v.  Steinbach, 98 Wn.2d 434, 656 P.2d 1030 (1982)).  However,

 bare assertions that a genuine material issue exists  will not defeat a summary judgment motion in the absence

 of actual evidence.  White v. State, 131 Wn.2d 1, 9, 929  P.2d 396 (1997).

            Absent a genuine issue of material fact, the matter is whether the trial court correctly applied the relevant substantive law.  Impecoven v. Dept. of Revenue, (1992) 120 Wash. 2d. 357, 365, 842 P. 2d. 752.

B.         The Material Facts Set Forth by the Parties

            The plaintiffs submitted the following evidence which was either uncontroverted or should have been inferred in favor of the plaintiffs who were the non-moving parties.

            One appellant, Nathan Kilcrease, is a Native American.  The other 19 appellants are blacks of African ancestry.[1]

            Sylvester Pittman telephoned Terry Smith of King’s Command Foods, Inc. in 1999 about job openings and was told to come in.  In person, Mr. Smith told him “There is no job and there won’t be a job.”[2]

            Relashia Searles packed meatballs at King’s Command Foods as a temporary employee in 1996-1997.  When she repeatedly asked for an application for direct employment, she was refused.  Her supervisor and co-workers were “snappy”.  King’s Command hired five people during the time Ms. Searles was requesting an application.[3]

            James Goode was rudely told by Terry Smith that King’s Command Foods was not hiring but to keep checking back.  Smith threw the application on the desk without looking at it.  James Goode checked back for six months and was told “not hiring”.  He found out that several white people were hired, but King’s Command was not hiring blacks.[4]

            Terry Smith asked Michael Pittman why he did not walk faster, the answer was that he had polio.  Mr. Smith said if Michael Pittman “can’t walk faster than this, you ain’t going to make it around here, boy.”  He was let go couple of days later.  King’s Command let him work as a temporary with the promise that if he worked more than 90 days they would hire him as a permanent employee.  But they twice let him before 90 days.[5]

            David Abruquah worked as a temporary packer for $6.50 per hour.  He wanted to transfer to the sanitation crew to earn about $11 per hour.  When he filled in at sanitation, he was paid $6.50 per hour.  His chances were repeatedly poisoned by David Cassat’s characterization of his work as “slow”.  In the packing department, everyone works at the same speed; each worker has to wait for the previous worker to supply the product.

            Bill Klosterman repeatedly told him to “wait”.  He was finally hired permanently on May 20, 1998 on as a packer.  His lead harassed him for “being slow”.  Terry Smith did not listen to his explanation.  Tim Markewicz fired him for being slow and he was smiling.

            He was rehired by Terry Smith in a laundry job.  He was demoted because a United States Department of Agriculture (USDA) inspector allegedly found dirt under a sink in the bathrooms.  Keeping the bathrooms clean is complicated by their constant use.  When he called in late due to a flat tire, it was counted as “half an occurrence”.  He was written up when the washing machines broke down and a drain was plugged.  He could not pull the drain because that was the mechanics’ job.  He sometimes clocked in late because laundry had to be sent into the machines to be ready for the swing shift.  He left after a pay cut.  He observed blacks get the menial jobs and promoted less rapidly than whites.  He heard terms like “nigger” in the passageways, said by a white man to a black man.[6]

            The Second Declaration of Terry Smith in Support of Defendant’s Motion for Summary Judgment (Smith Declaration 123), Sub No. 123, CP 267-488, includes 25 attached Exhibits, none of which are written documents from the USDA.  Exhibit 2 is the relevant collective bargaining agreement.  The last three pages, CP 322-323, explains the “occurrence” policy.  The last step is termination of employment.[7]

            When Benjamin Barnes worked as a warehouse foreman, white subordinate employees were incompetent forcing him to complete the orders himself.  His supervisor, Tom Butler, refused to discipline the employees.  He was thus transferred from foreman to meat cutter.

            Another meat cutter, Elliot, a white man, grabbed his knife away from him.  Upon complaint a supervisor told him “If you don’t like it, you can quit.”  Benjamin Barnes witnessed a white employee always telling racist jokes, even after Mr. Barnes objected.  Mr. Barnes he walked away without listening to the rest of a joke that contained words “black man”.[8]

            Nathan Kilcrease perceived that management, Dave Cassett, who is white, was “keeping everybody down on the crew.  And to me, that’s discrimination because he was white and everybody else on the crew was ethnic.”  He knew Larry Pittman filed the lawsuit because “Everybody in the plant” “was talking about it.”  He decided to join the lawsuit.[9]

            After Mr. Kilcrease was promoted to supervisor of the sanitation crew, he was assessed three occurrences for absences and tardies.  However, Dave Cassett, the previous supervisor of the sanitation crew, often left after the shift began and returned 15-20 minutes before Kirk McCoy, the morning supervisor, arrived.  When Mr. Kilcrease spoke to Kirk McCoy and Dave Horn, their response was “Well, he’s management.”  Mr. Cassett was demoted, but not terminated.  Mr. Kilcrease faced possible termination under the “occurrence” policy after being promoted to management.

            Nathan Kilcrease and the sanitation crew were often not given sufficient time after the swing shift finished to perform their required cleaning for the morning shift.  When this happened Kirk McCoy and Tim Markewicz yelled at them.  They blamed the sanitation crew for the meat tubs and parts being taken by the grinders.

            Nathan Kilcrease witnessed Kirk McCoy use racially inappropriate terminology, calling Larry Pittman offensive names on numerous occasions.  At about 5:00 am he was leaving the graveyard shift and Mr. McCoy and Mr. Pitttman were arriving for the morning shift.  He witnessed Mr. McCoy physically assault Mr. Pittman with closed hand and say “What’s up, black man?” in the presence of Pete Dewitt.[10]

            When Curtis Hollis worked as a grinder, people called him “boy” including Tim Markewicz and Jim Baer.  Jim Baer told racial jokes every day.  Jim Baer yelled “Smile, Curtis, because I can’t see you.” when the lights went out.  Terry Smith had Tim Markewicz write him up for “moving too slow.”  Mr. Smith refused to discuss it.

            When Curtis Hollis was arrested for missing a probation appointment, he received an “occurrence”.  On several occasions he told management that he had court dates, but management gave him occurrences anyway.  When he was delayed by an accident on the freeway, he was assessed half an “occurrence”.  Dave Horn and Terry Smith did not listen to his explanation and ignored a Washington State Patrol report of the accident.  After he obtained release from work for a medical appointment, the appointment was canceled.  When he came to work the next day, he was given a warning that one half more “occurrence” and he would be fired and was soon fired.  An attempt to grieve the firing with the union was ineffective.  White employees were often not assessed “occurrences” for tardies and absences, but black employees were assessed “occurrences” every time.  Some white employees received rapid promotions, while the black employees received promotions slowly or not at all.  He observed Dave Greenwood, white, come in drunk, cuss out the management, using profanity, they sent him home in a taxi.  He came to work the next day like nothing happened.  All he received was an “occurrence”.[11]

            Michael Davis was hired as a grinder.  Management told him it was because he was a young black male, big and strong.  When he was moved to the sanitation crew, management told him he would be good there because he was a big, strong, black male.  Mr. Thomas made racially inappropriate comments to Mr. Davis, calling him “Dogg” and “boy”.  Mr. Thomas commented that a minority woman wearing a hairnet looked like Aunt Jemima.  Mr. Thomas called Nathan Kilcrease “Chief”.  Mr. Davis told Mr. Thomas that he was not his “boy” and that his name is Michael.  Jody Lambert told African jokes.

            On the sanitation crew, Mr. Davis was spraying to clean the machinery.  Mr. Markewicz screamed at him “What the F you think your stupid ass is doing?”  Mr. Davis tried to calm Mr. Markewicz, who complained about being sprayed and objected to the spraying.  Mr. Markewicz called Mr. Davis a “mother fucker” and a “stupid ass”.  Mr. Davis received a write-up from Terry Smith.  At a meeting with Mr. Davis, Mr. Markewicz, Mr. Smith, and Nathan Kilcrease, other employees who witnessed the incident exonerated Mr. Davis.  A short time after that, Mr. Davis was fired for eight “occurrences”.

            Mr. Davis perceived that promotions of blacks accelerated after this lawsuit was filed.  He received an “occurrence” for being late when his tire blew out.  There were written Employee Warnings with signatures that Mr. Davis refused to confirm or deny as his.[12]

            Joseph Donker was told to go home by his supervisor, Dave Cassatt, and so he clocked out.  Nathan Kilcrease told him that Mr. Cassatt wanted him in the plant.  Terry Smith and Mr. Cassatt told him to return to work or be fired.  After Mr. Donker returned to work, Mr. Cassatt gave him a simple task requiring a few seconds.  While asking him to hurry a cleaning task, Mr. Cassatt called Mr. Donker a “stupid motherfucker”.

            When Mr. Donker filled out applications for other jobs in the plant, Mr. Cassatt received the applications but did not turn them in, preventing him from obtaining other positions.  Mr. Cassatt was abrupt and hostile with Mr. Donker when writing him up for loafing and for retrieving his keys from his car after clocking in, he did not listen to explanations.  Mr. Donker received a write-up for clocking in before dressing up in the locker room he was required to clock in after dressing up for the work.[13]

            Yolanda Eskridge attempted to switch from the swing shift to day shift. A Hispanic woman got a day shift position instead.  Terry Smith told her that she could work day shift if someone wanted to switch, an impossible requirement.  A union grievance was ineffective.  Tim Markowicz treated the whites differently than the blacks, having the blacks do the dirty work and allowing the whites to take their breaks before the blacks.  At the end of her shift Mr. Markowicz told her she could leave.  After she changed out of her work clothes, he told her there was more work to do.  She redressed for work and he could not find any more work.  She went home.  She was fired the next day.  She denied yelling and using profanity.  Explanations weren’t listened to.  The union grievance was ineffective.  A white employee, Dave Greenwood, was not fired after coming to work drunk and cursing a line lead, Mr. Markowicz, and Ron Baer.  Another white employee, Dave Cassatt, was not fired after a no call no show.  Other instances of disparate treatment was witnessed by Ms. Eskridge.[14]  Gregory Cody wrote a letter concerning the last day Ms. Eskridge worked.  Mr. Markowicz told Mr. Cody that he intended to deliberately anger another worker to open a position for Keith Kern.[15]

            Sidney Lanier was once called “blacky” by his supervisor, Robert Thomas.  Mr. Thomas slapped Mr. Lanier on the rear end, made sexual gestures, and pulled him while he was cutting meat.  Complaints to Kirk McCoy were ineffective.  Mr. Thomas warned Mr. Lanier to be careful because Mr. Watson had a swastika on his ear.  The occurrence policy was strictly enforced against Mr. Lanier.  He received an “occurrence” when he was absent for feeling sick.  He received another “occurrence” when he had to leave early for a back injury and had to stay home the next day.  He was fired after being absent to see a physician for a stomachache and a hip problem.  Kirk McCoy once grabbed Mr. Lanier around the neck to intimidate him and told him that he bothered him.[16]

            After Mr. Lanier worked 30 days in the freezer, he was replaced there by a newly hired white employee.  He observed disparate treatment between the races in the posting of job openings and the practice of waiting for whites to apply before filling them.  He was used as a pawn in some kind of contest between management and Allen Watson.  Don Furtick called Mr. Lanier “a dumb, stupid, black ass mother fucker.”  His complaints to Kirk McCoy and Terry Smith were ineffective.  Mr. McCoy called him “stupid”.  The dirtier and crummier jobs went to the blacks.  He was the target of racial abuse, both verbal and physical.  Mr. McCoy physically assaulted him.[17]

            When Keith Kern worked as a line lead or red meat, he was paid less than the hourly rates required by the collective bargaining agreement.  The white line leads and red meat workers said they always received the higher pay rates.  His supervisor, Robert Thomas, always referred to him as “nigger”, “boy”, and “loser”, told racist jokes, and would liken him to a monkey.  He objected.  Kirk McCoy heard this.  Mr. Kern never witnessed Mr. McCoy tell Mr. Thomas not to talk that way.[18]

            Gregory Cody was placed in a position for two weeks that entitled him to a higher pay rate but he was denied the higher pay.[19]

            When Shabae Diquan repeatedly applied for positions Terry Smith and Kirk McCoy told him when they wanted another black, they will hire another black.  The union grievance procedure was ineffective.  He witnessed white staff use terms against the non-white employees such as “ass-holes”, “stupid”, “dumb Nigger”, and “dummy”.  The phrase “those lazy black mother fuckers never do anything right” was used almost daily.  Mr. Diquan was referred to as “Nigger” and “Black Sambo Darkie” by white supervisors.  Mr. Smith said black people reminded him of the little black statutes on his lawn and Mr. McCoy agreed.  After Mr. Smith told him that a “Sambo Darkie” was a “porch monkey”, Mr. Diquan requested that he not be called that.  Mr. Smith said “What? Do you think the Niggers are running King’s Command?  Well, you’re not.  Now get back to work.”  His complaints were met with hostility or indifference and was told that it was the “Niggers” who made the problems.[20]

            When Larry Pittman worked at King’s Command, Dave Horn and Terry Smith told him that he was not getting any raises, transfers, or promotions.  Terry Smith told him he threw his applications for posted openings away, and if he did not like it, he can quit.  He was refused higher pay for work that qualified for a higher pay rate.  When he filed a grievance with the union, he was fired for accumulated “occurrences”.  He was approved a day off to accompany his wife to a medical appointment.  Management claimed that the approval was for Tuesday, not Monday.  He was fired.  Prior to that incident, he came to work sick.  He was allowed off the rest of the day but assessed a full “occurrence”.  Three days before firing him, Terry Smith told him “Boy, you do not have any rights.”

            Robert Thomas repeatedly called Mr. Pittman racially offensive terms.  Kirk McCoy told him a racial joke.  After having him do a particularly degrading task, Mr. McCoy taunted Mr. Pittman into quitting.  He returned to work after King’s Command called to apologize, told him that Mr. McCoy will no longer be his boss, and falsely promised a raise and promotion.  King’s Command refused to allow Mr. Pittman sit in on training.  When he asked Mr. McCoy about a valve on a machine, he refused to answer.  Mr. Thomas told Mr. Pittman that he was surprised that he lasted so long, because “black guys don’t do well at this company.”  Mr. Pittman observed that when black men were assigned to packing, it was to punish them or to run them out of the company.  White men assigned to the packing line were promoted to better paying, positions.[21]

            Larry Pittman was repeatedly physically assaulted by Kirk McCoy.  Terry Smith, Mark Wallace, Tom Butler, Doug Nance, and numerous other employees witnessed the assaults.  Mr. Smith and Mr. Wallace surrounded Mr. McCoy and Mr. Pittman, and told Mr. Pittman that if he hit back, he was fired.  They did not stop McCoy’s physical assaults.  When Mr. Pittman asked Pete Dewitt, his new boss, about it, he refused or was unable to do anything about it.  Dave Horn, who ran the King’s Command facility in Kent, refused to do anything about it.[22]

            Darrel Cody was called racially inappropriate terms by Kirk McCoy, including “tarbaby”.  Mr. McCoy also mentioned that Harvey Baer, company founder, would not have blacks working for him.  Mr. McCoy, Mark Wallace, Tom Butler, and Peter DeWitt commented in the break room that where Hispanic workers sat was the “south of the border” table.  Two lower ranking white employees, Tom Butler and Tim Markowicz, were paid more money than Mr. Cody.  Jody Lambert and Mr. Markowicz received more pay when training other people.  Mr. Cody did not receive pay differentials when he trained other people.  He often did not receive higher pay rates for work that qualified for higher pay rates.

            Mr. Cody was fired for “occurrences”, the policy stricly enforced against him.  It was enforced when he requested to leave early to make a court appearance and when he was in a hospital with a 105 F fever.  A white employee, Shawna Flowers, was allowed to make up hours instead of getting an “occurrence”.  He was written up for a low temperature reading, despite his explanation that the thermometer was inaccurate.  He was suspended and demoted by Mr. Smith after defending himself from an assault by Chuck Imhoff.  Mr. Imhoff was not demoted.  Mr. McCoy told Mr. Cody that Dave Horn did not want him to be a lead.

            Terry Smith saw him discussing safety issues with a USDA employee and wrote him up for “standing around”.  Mr. McCoy did not allow him his responsibilities as head machine operator and would interfere by pushing control buttons and damaging the product.[23]

            Gregory Cody worked as a grinder helper in a crew with three white coworkers.  They ordered him around in a disrespectful manner and called him “nigger” and “black motherfucker”.  Robert Thomas got into an argument with Keith Kern and called him racially inappropriate terms.

            When Mr. Cody was not at fault for an error, Mr. Smith tore up the suspension notice and rudely told Mr. Cody to get out of his office.  In discipline, whites were treated leniently and blacks were treated harshly.  Mr. Smith threatened him with firing if he did not show up when he had a car problem.  The occurrence policy was enforced when he called in sick and told Mr. Smith he was vomiting.  Blacks terminated under the occurrence policy were never hired back but other races were.  He was terminated for being absent two days when he was arrested.  King’s Command does not accept collect calls from a prison.

            Mr. Cody was never transferred to a job off the grinding platform, but numerous white grinders were moved off the grinding platform to machine operator or other jobs with similar pay and less physical demand.  His union grievance was ineffective.  He witnessed Kirk McCoy tell Larry Pittman that he not getting a posted job in the red meat department.[24]

            Mary Coleman worked as a packer.  She and other black employees, Larry Pittman and Keith Kern, applied to work in the red meat department.  She delivered her application to Terry Smith.  Several weeks later, the position was filled by a white man named Dennis hired off the street.  She was repeatedly passed over for line end lead positions, in favor of white female employees with less seniority, before finally being promoted to such a position after this lawsuit was filed.

            Around 10:30 to 11:00 am January 15 Kirk McCoy asked her “Who killed Martin Luther King, Jr.?”  She said the killer’s last name was Ray.  Mr. McCoy said “You know what?  We should celebrate James Earl Ray Day, you know, James Earl Ray Day for killing -- you know, for killing Martin Luther King, we should have a day for him.”[25]

            When she and Keith Kern were clocking in with white employees, Mr. McCoy told her and Mr. Kern that they needed to have their work coats on before clocking in,[26] but made no such demand upon the whites.

            She observed that some fired white employees were hired back but not fired black employees.  Management picked on black employees more than white employees.  Tim Markowicz had a bad attitude and behavior.

            She liked her job, but not the way Mr. McCoy harassed her, he did not like black people.  Terry Smith did not help.  Ms. Coleman was written up for “loafing” but Nina Rosario was not.  She had to ignore Mr. McCoy in order to work.  Reporting him and his behavior is ineffective.[27]  Darrell Cody witnessed Kirk McCoy yelling at Mary Coleman a lot.[28]

            Terrance Davis picked up a tub with a forklift.  Bill Klosterman told him to move it by hand instead: “Get your lazy ass off the forklift and move it with your fucking hands!”  Mr. Davis responded that he need not yell.  Mr. Klosterman retorted with “Don’t fucking talk back to me.  Just do what I say.”  Mr. Davis walked away and moved the tub by hand.  A co-worker, Roy Boberg, used racially inappropriate terminology: “You fucking coloreds[29] should know how to do this labor work.”

            Tim Markowicz always yelled at people.  He often called Mr. Davis “boy”.  He would say “Y’all people should know how to do that type of work.”  Mr. Davis heard Mr. Markowicz mumble “fucking nigger”.[30]  Sometimes he said: “You colored people are always messing up.”  When Mr. Davis suggested “African-American”, Mr. Markowicz responded with “What the fuck ever.”

            Mr. Davis was officially a “helper-grinder”.  Because the “assistant grinder” position was vacant, Mr. Davis had to perform that function, and fill out paperwork to qualify for the higher pay rate.  The paperwork got “lost” and Mr. Davis would not get the higher pay rate.  Terry Smith refused to promote him to “assistant grinder” and demoted him from “helper grinder” to “packer” to “cool off”, busting his pay accordingly.  The union grievance procedure was ineffective.

            In Mr. Davis’ presence, co-worker Jim Kimborowicz would casually make racial slurs, including about Hispanics.

            Mr. Davis was written up for punching out at the wrong time.  His defense that they worked overtime was ineffective.  He was written up for absences due to being sick.[31]  He was disciplined for changing out of his work clothes before punching out at the time clock.  This is a violation of the federal Portal to Portal Act, 29 U.S.C. §254.[32]

            Mr. Davis was written up for errors he made while running an unfamiliar chicken meat combination.  He asked Tim Markowicz for direction who refused to help.  The batch was ruined.  Mr. Davis resigned from King’s Command because he was tired of the way he was talked to and by Mr. Markowicz, Mr. Smith, and Mr. McCoy.[33]

            Shabae Diquan was repeatedly told by King’s Command management personnel, including Terry Smith and Kirk McCoy, that if he worked for 90 days, he would be hired direct.  Mr. Diquan applied for almost every position that was posted.  Mr. Smith refused to discuss the matter in any meaningful way.  Mr. Smith joked about how Mr. Diquan did not need the job, mentioning drugs and cocaine, actually asked him where he could get cocaine.  Mr. Diquan told him that he did not sell illegal drugs.  Mr. Smith and Mr. McCoy would ask him about buying cocaine, in front of the other employees.  He was denied the positions without explanation.  Mr. Smith said, “We’ll hire another nigger when we want one.”  He said this in front of other people, including Kirk McCoy and Larry Pittman.  Mr. Diquan reported these comments on a grievance form in the personnel office.

            He complained to Pete DeWitt, the plant supervisor about being asked to provide cocaine and racial slurs, including “nigger”, “jigaboo”, “spear chucker”, and “pink monkey”.  He wanted them to just tell him why he was not considered for the positions.  The racially inappropriate language did not stop.  They never explained why he wasn’t hired.

            Kirk McCoy did his share of the racial hazing and teasing about cocaine.  He, Mr. DeWitt, and Mr. Smith worked together, covered for each other, and all made racially inappropriate comments in each other’s presence and in the presence of Mr. Diquan and other employees.[34]

            Throughout Keith Kern’s employment Robert Thomas would push him around, throw his work out of his way, and refuse to help with clean-up tasks saying “That’s house nigger work.”  Kirk McCoy also abused him.  Constantly asked him and sometimes another black employee, Mary Coleman, if he was clocked in while dressing in the work clothes.  Mr. McCoy constantly harassed him during the time he was assigned to the raw line.  Mr. McCoy grabbed tools out of Mr. Kern’s hands, pushed him aside, called him stupid, and mumbled things under his breath.

            After he had been on kidney dialysis, in June 2000, he was near the end of his shift, with a load of beef fajita in the tumbling machine.  He had to get to his dialysis appointment.  He told Tim Markowicz and Greg Cody that there was a load tumbling and that he needed to leave the plant for his treatment.  The next day Mr. McCoy disciplined him for leaving.  Mr. McCoy made abusive comments about his illness and his race.

            When Mr. Kern first noticed the symptoms, and tried to tell Terry Smith, Mr. Smith just told him to “step it up.”  Mr. Smith told Mr. Kern that he was through with him, he was switching him to swing shift as a packer.  If he couldn’t do that job, he will be written up three times and then fired.  The next day Mr. Kern checked himself into the hospital.

            Mr. Kern perceived racial hostility.  He observed disparate treatment between the way he was treated for being absent to go to the hospital and a white employee Dave Cassatt.  He was only demoted after going “AWOL”, but he observed a black employee, Greg Cody, fired after being arrested and could not come in.[35]

.           Eric Arhin was been unable to obtain a visa to return from Ghana to attend depositions or other proceedings in this case, despite the best efforts by appellants’ then attorney, Paul H. King, to secure his legal re-entry to the United States.  The events of September 11, 2001 made these efforts even more difficult.  Mr. King, was unsuccessful in setting up a telephonic deposition under Civil Rule 30(b)(7) because respondent’s counsel refused to participate in such a deposition.

            Non-plaintiff employees of King’s Command Foods also provided evidence.  Larry Shockley, a white man.[36]  Royce McMillan is a black woman.[37]  Ron Goodar is a black man.[38]

            Attached to the Declaration of Judith Calhoun Authenticating Documents Regarding Occurrence Policy (Calhoun Declaration 229), Sub No. 229, CP 1255-1275 are documents kept by King’s Command recording absences, tardies, and assessed occurrences.  Some of these documents pertain to named appellants in this case.  For the appellants, either a half occurrence for a tardy or a full occurrence for an absence was recorded and added to the appellant’s cumulative total.  Larry Pittman received at least 1 1/2 occurrences added to his total for only one absence.

            The race and gender of non-plaintiff employees are not indicated and their names redacted.  Most of the non-plaintiff employees at King’s Command are either white, Hispanic, or Asian, while the appellants are 20 blacks and one Native American.  In most cases, neither half occurrence for a tardy nor a full occurrence for an absence was assessed or added to the non-plaintiff employee’s cumulative total.  In the case of one non-plaintiff employee, he was terminated after being absent for 11 days for abandoning his job.  However, appellant Mike Davis was terminated for abandoning his job after being absent for only two days.

            In addition there is direct evidence of disparate treatment between the races.  The respondent answered interrogatory question asserting that there were no merit raises for the hourly workers at the plant.  This answer is inconsistent with documents submitted by the respondent in response to appellants’ requests for production.  Merit raises were given to numerous hourly workers throughout the 1990’s and the 21st Century so far.  38 white workers received merit raises according to these documents.  Two Asian and two Hispanic workers received merit raises.  Two black workers received merit raises, but only account for three merit raises between them. Same is true for the two Hispanic workers.  Many of the white workers and the two Asian workers received multiple merit raises.[39]  Given the number of black employees at King’s Command, as evidenced by the 20 black appellants currently in this case and by the three plaintiffs formerly in this case, it is definitely statistical evidence of disparate treatment between the races as to discretionary merit raises.

THE RELEVANT SUBSTANTIVE LAW

            Washington Law Against Discrimination

            Racial discrimination in employment is prohibited by RCW 49.60.180:

            (1) To refuse to hire any person because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability . . .

            (2) To discharge or bar any person from employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability . . .

            (3) To discriminate against any person in compensation or in other terms or conditions of employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability . . .

 

            Hill v. BCTI Income Fund-I, (2001) 144 Wash. 2d. 172, 179 found:

. . . courts must carefully consider all allegations of unlawful discrimination, since the WLAD “embodies a public policy of ‘the highest priority’”

 

quoting Xieng v. Peoples National Bank, (1993) 120 Wash. 2d. 512, 521, 844 P. 2d. 389 which quoted Allison v. Housing Authority, (1991) 118 Wash. 2d. 79, 86, 821 P. 2d. 34.

            Where there is direct evidence of discrimination, the burden shifting test in McDonnell Douglas v. Green, (1973) 411 U.S. 792, 802-805, 36 L. Ed. 2d. 668, 93 S. Ct. 1817 does not apply.  Trans World Airlines, Inc. v. Thurston, (1985) 469 U.S. 111, 121, 83 L. Ed. 2d. 523, 105 S. Ct. 613, citing International Brotherhood of Teamsters v. United States, (1977) 431 U.S. 324, 358 n. 4, 52 L. Ed. 2d. 396, 97 S. Ct. 1843.

            “Federal authority is persuasive in interpreting RCW 49.60.” Xieng at 120 Wash. 2d. 531.  Xieng applied McDonnell Douglas to claims under chapter 49.60 RCW, but also upheld the finding that Mr. Xieng’s accent was the reason he was passed over for promotion.  Id., at 521.  This was direct evidence of national origin discrimination.  Grimwood v. University of Puget Sound, (1988) 110 Wash. 2d. 355, 362-363, 753 P. 2d. 517 adopted Loeb v. Textron, Inc., (1st Cir. 1979) 600 F. 2d. 1003, 1014-1017 for use in chapter 49.60 RCW cases.  Loeb at 600 F. 2d. 1016-1017 found that McDonnell Douglas is not the exclusive method of proving discrimination, citing Teamsters at 431 U.S. 358.  Direct evidence of unlawful discrimination obviates the need for the burden shifting analysis.  Swierkiewicz v. Sorema N. & NBSP; A, (2002) 152 L. Ed. 2d. 1, 122 S. Ct. 992 which found that the burden shifting test of McDonnell Douglas is an evidentiary standard, not a pleading standard, and that it is not necessary to plead all of the facts necessary to establish each element of a McDonnell Douglas prima facie case in a discrimination complaint.

            Where direct evidence is not shown, then the burden shifting analysis of McDonnell Douglas is available for a plaintiff in a discrimination case.  This analysis has been adjusted by Texas Dept. of Community Affairs v. Burdine, (1981) 450 U.S. 248, 252-256, 67 L. Ed. 2d. 207, 101 S. Ct. 1089; St. Mary’s Honor Center v. Hicks, (1993) 509 U.S. 502, 506-511, 125 L. Ed. 2d. 407, 113 S. Ct. 2742; and Reeves v. Sanderson Plumbing Prod., Inc., (2000) 503 U.S. 133, 147 L. Ed. 2d. 105, 119-120, 120 S. Ct. 2097.  Once the prima facie case had been established for unlawful discrimination, and employer’s claim of legitimate reason is found to be false, it is permissible but not mandatory for a rational trier of fact to find discriminatory intent without additional independent evidence of discrimination.  Proof is by preponderance of evidence, Price Waterhouse v. Hopkins, (1989) 490 U.S. 228, 253-255, 104 L. Ed. 2d. 268, 109 S. Ct. 1775.  These federal opinions are adopted by Hill at 144 Wash. 2d. 176, 180-187 for evaluating chapter 49.60 RCW claims.

            The appellants allege disparate treatment with respect to black and Native American employees.  The respondent moved to dismiss the appellants applying McDonnell Douglas analysis to the facts of each appellant.  However, if there was a policy or practice to discriminate against non-white employees, then it had mixed motives with respect to each appellant.  Any legitimate reasons are at most, under such circumstance, pretextual, even if true.  If false, then Reeves as adopted by Hill, allows a trier of fact to conclude unlawful discrimination.  As the trier of fact can conclude unlawful discrimination, then under Reeves, Hill, Clements, and Trimble, summary judgment is precluded.  The court on summary judgment motion does not make a credibility determination.  Seven Gables Corp. v. Metro-Goldwin-Meyer/ United Artists Entertainment Co., (1986) 106 Wash. 2d. 1, 13, 721 P. 2d. 1 found:

MGM/UA was obliged to provide . . . sworn testimony presenting specific facts which, if believed, would justify a court in holding RCW 19.58.040 unconstitutional as applied or that Seven Gables was guilty of misconduct which prevented the court from entering a statutory injunction.

 

The phrase “if believed” implies that credibility determinations and the weighing of the evidence are not proper in a summary judgment motion.  Such can only be done after a trial.[40]  Article I Section 21 of the Washington Constitution preserves inviolate the right to a jury for determination of fact.

            Where there are mixed motives, Washington courts, in applying chapter 49.60 RCW, have settled upon the “substantial factor” test: Mackay v. Acorn Custom Cabinetry, (1995) 127 Wash. 2d. 302, 898 P. 2d. 284; Allison v. Housing Authority, (1991) 118 Wash. 2d. 79, 821 P. 2d. 34; and Wilmot v. Kaiser Aluminum & Chemical Corp., (1991) 118 Wash. 2d. 46, 821 P. 2d. 18.  This test is chosen as the middle ground between two other standards of proof in employment discrimination cases: 1) The “determining factor” or the “but for” test, in which case the prohibited ground, must the determining factor and that but for the condition, the adverse employment action would not have occurred.  And 2) The “to any degree” test in which case the adverse employment action was motivated to any degree by the prohibited ground.

            The “determining factor” or “but for” tests were rejected because they placed too high a burden of proof upon the employee alleging discrimination or retaliation for asserting legal rights or for complying with a legal requirement, to effect the public policy enacted by the Legislature.[41]  The employer can usually produce some evidence of another motive for the discharge, defeating the discrimination claim even though the other motive had slight impact on the adverse employment decision.  Wilmot at 118 Wash. 2d. 70; Allison at 118 Wash. 2d. 85-87, 93-94; Mackay at 127 Wash. 2d. 309-310.

            The “to any degree” test was rejected because employers need to be able to take appropriate action against employees when they have legitimate reasons, and that employees might abuse the protection of the standard by filing weak discrimination claims to shield themselves from discharge.  Allison at 118 Wash. 2d. 94-95.  Wilmot and Allison dealt with retaliatory discharge claims, Mackay applied the “substantial factor” test to employment discrimination claims.  The substantial factor test provides that a plaintiff alleging discrimination must prove that race or another prohibited ground was a substantial factor, more than a slight factor, but he or she need not prove that it was the only factor.

            The appellants meet the standard of Kahn v. Salerno, (1998) 90 Wash. App. 110, 117, 951 P. 2d. 321 by setting forth specific facts as to each essential element of discrimination.  These specific facts as herein above cited include racist name calling, comments and jokes by decision makers, tolerance by management of the racist taunting and insults,[42] management’s flat refusal to consider Larry Pittman for promotion, transfer, or any action that would lead to a raise in pay beyond the cost of living adjustment, refusal to pay black employees at higher rates of pay required by the collective bargaining agreement for certain duties when these employees performed them, the physical assaults against Larry Pittman and the tolerance of these physical assaults by management, refusal to consider Sylvester Pittman, Relashia Searles, James Goode, and Shabae Diquan for job openings and for permanent employment, the discrimination against Michael Pittman for being partially disabled in addition for being black, the impossible no-win position in which David Abruquah was placed, the counting of sick leave toward a policy of discipline of employees for absenteeism, such policy enforced without any flexibility against the black employees for such unforeseeable events as illnesses, the sudden firing of Yolanda Eskridge for “abandoning” her job after working 9 hours and refusing to hang around for a supervisor who was playing a game, a similar game played with Joseph Donker, considerable incidents of disparate treatment between white and nonwhite employees as to these rules, the lack of cooperation experienced by Benjamin Barnes and Nathan Kilcrease and management failure to back up these foremen to the extent that it backed up white foremen and supervisors, and other facts set forth to show that not only was race a substantial factor in the treatment of every appellant in this action, but that it was a policy or practice by King’s Command Foods, Inc. to treat its nonwhite employees differently than its white employees to the disadvantage of its nonwhite employees.  Furthermore, direct evidence of disproportionate treatment of the races in the awarding of discretionary merit raises is provided by documentation supplied by the respondent in response to discovery.  That the respondent inconsistently stated that there were no merit raises in its answers to Interrogatories, brings to mind the Reeves standard, that if the employer is found to be lying, a trier of fact may but is not required to find unlawful discrimination.

            A rational trier of fact can, with this evidence, find that there was unlawful racial discrimination in employment with respect to each and every appellant and that the respondent corporation had a policy or practice of disparate treatment of its employees on the basis of race.  United States v. Ironworkers Local 86, (9th Cir. 1971) 443 F.2d 544, 551-552, pattern or practice of discrimination outlawed by Congress, likewise it is outlawed by chapter 49.60 RCW.

D.        Sanctions Were Inappropriately Assessed Against the Appellants

            The respondent included in its Response to Plaintiff’s Motion to Amend Complaint (Response 77), Sub No. 77, CP 7-18, a motion for sanctions and the superior court surprised the plaintiffs by granting it.  All the appellantss were doing was asking to amend the complaint to add two plaintiffs and drop a plaintiff who had passed away.  This request was granted, Order, Sub No. 86, CP 38-39, but the award for sanctions therein surprised the appellants because the Response 77, CP 7-18 did not comply with Civil Rule 7(b), and more importantly, did not comply with Civil Rule 10(a) for identification of the motion in the caption of the pleading.  Nor was this motion for sanctions, buried as it was in a response to a motion to amend a complaint, accompanied by a Note for Motion required by King County Superior Court’s Local Civil Rule 7(b)(4)(A).

            The appellants filed their Motion for Vacation of Provisions of Order Dated June 13, 2001 that Continued Trial Date and Awarded Sanctions, Civil Rule 60 (Motion for Vacation), Sub No. 82, CP 19-28, to obtain relief from this surprise award.  The reasons that the award should never have been granted and should have been vacated are set forth extensively therein.  Specifically, Kennewick v. Vandergriff, (1987) 109 Wash. 2d. 99, 102-103, 743 P. 2d. 811 reversed a finding upholding the grant of a motion because the letter that was interpreted as a motion was not sent to the opposing counsel, and that it was noted on the trial calendar as a motion.  Civil Rule 60 provides for relief from an order for mistakes, surprise, excusable neglect, and irregularities in obtaining the order.  Kennewick Irrigation Dist. v. 51 Parcels of Real Property, (1993) 70 Wash. App. 368, 371, 853 P. 2d. 488 quoted Mosbrucker v. Greenfield Implement, Inc., (1989) 54 Wash. App. 647, 652, 774 P. 2d. 1267:

            Irregularities pursuant to CR 60(b)(1) occur when there is a failure to adhere to some prescribed rule or mode of proceeding, such as when a procedural matter that is necessary for the orderly conduct of trial is omitted or done at an unreasonable time or in an unreasonable manner.

 

Kennewick Irrigation and Mosbrucker also found that a claim for irregularity is not controlled by the four factors applicable to cases involving excusable neglect.  The award for sanctions was most certainly obtained in an irregular manner, and as it was in violation of the Local Rules upon which the appellants were relying, it is offensive to the Constitutional right to due process of law, in violation of Article I Section 3 of the Washington Constitution and the Fourteenth Amendment.

            The superior court improperly refused or failed to rule on this motion until it entered the Order Awarding Entry of Judgment, Sub No. 310, CP 1531-1535, effectively denying the Motion for Vacation and ignoring the Response in Opposition to Defendant’s Motion to Enforce Award of Sanctions, Sub No. 296, CP 1492-1507.

            The Order Granting Sanctions, Sub No. 279A, CP 1423-1424, the Order Awarding Sanctions, Sub No. 299, CP 1508-1509, the Order Denying Motion for Reconsideration, Sub No. 302A, CP 1510, and the Order Awarding entry of Judgment, Finding of Contempt, and Award of Fees of Costs, Sub No. 310, CP 1531-1535 were also improperly imposed against the appellants for discovery problems, which were the fault of both parties, but specifically the fault of the respondents for their lack of cooperation, and their excessive, repetitive, and unnecessary discovery requests and unwarranted complaints about the adequacy of the plaintiffs’ responses to their discovery requests.

            It is obvious that the appellants who were able to remain in the United States should not have been sanctioned for the inability of appellant Eric Arhin’s inability to legally re-enter the United States to attend a deposition and the respondent’s unwillingness to participate in a telephonic deposition under Civil Rule 30(b)(7).  Mr. Arhin could have attended such a deposition from his current location in Ghana.

            The appellants opposed these sanctions with their Response in Opposition to Defendant’s Motion for Summary Judgment, Sub No. 252Q, CP 1349-1392, in that there is more then sufficient evidence upon which a rational trier of fact can conclude that there existed a practice or policy of racial discrimination by the respondent, and therefore, the respondent should not be allowed summary judgment either for dismissal or for sanctions.  The attached Washington Pattern Jury Instructions were not designated by the appellants but are nevertheless included in the Clerk’s Papers, at CP 1368-1392.

            The facts and citations to authorities of law with respect to the discovery issues are further set forth in the Plaintiff’s Response to Defendant’s Motion to Compel Discovery Answers, Sub No. 262E, CP 1393-1402; Response in Opposition to Defendant’s Motion to Enforce Award of Sanctions, Sub No. 296, CP 1492-1507, Declaration of Judith Calhoun, Sub No. 304, CP 1511-1512, Declaration of Keith Kern, Sub No. 305, CP 1513-1514, Declaration of Larry Pittman, Sub No. 306, CP 1515-1516, and the Memorandum in Opposition to Motion for Judgment to Enforce Sanction, Sub No. 307, CP 1517-1520.

IV.       CONCLUSION

            For the reasons stated herein, this Court should reverse or vacate the portions of the Order Granting Plaintiff’s Motion to Amend Complaint to Add Two Plaintiffs and Drop One Plaintiff and Imposing Sanctions, Terms, and Conditions, Sub No. 86, CP 38-39, that impose the sanctions, terms and conditions, the Order Granting Sanctions, Sub No. 279A, CP 1423-1424, the Order Granting Summary Judgment, Sub No. 286A, CP 1426-1432, the Order Awarding Sanctions, Sub No. 299, CP 1508-1509, the Order Denying Motion for Reconsideration, Sub No. 302A, CP 1510, and the Order Awarding entry of Judgment, Finding of Contempt, and Award of Fees of Costs, Sub No. 310, CP 1531-1535 should be vacated or reversed and the case remanded for further proceedings consistent with such decision.

Dated this 21st day of October, 2002

                                                            Respectfully submitted,

 

                                                ____________________________________

 

                                                John R. Scannell,           WSBA #31035