A. As to Appellants’ Claims for Racial
Discrimination in
Employment
The
Clerk’s Papers show a tremendous quantity of evidence admitted into the record
of the case below. The
respondent, King’s Command Foods, Inc., lists in its Brief 122 separate
“allegations” and “assertions” of incidents set forth by the
Brief of
Appellant. Each such assertion is
dealt with in its own subsection of the Brief of Respondent.
The
Respondent wishes this Court to consider each allegation and each assertion
separately and in isolation from every other incident at issue. It may be that with some of these incidents,
when considered in isolation, a rational trier of
fact might not be able to determine that there was an atmosphere of racial
discrimination in this workplace. One
incident of calling an employee “nigger” or poisoning his opportunities in
career growth by characterizing his work as “slow” would not be sufficient by
itself to prove a racial animus. But it
is evidence that in combination with other incidents can prove to a rational trier of fact unlawful discrimination in violation of
chapter 49.60 RCW.
That
is the fatal flaw in King’s Command’s approach.
A pattern of discrimination is by definition something that can be
evidenced by numerous incidents. It has
been outlawed by Congress,
The
argument, Brief of Respondent pages 12, 72-75, that the
Brief of Appellants
does not make such explanation is absurd.
Which is it? That the appellants
have overloaded this Court and
King’s Command with 122 allegations and
assertions or did the appellants fail to set forth in their
Brief the facts and
arguments which support their contentions on appeal?
Brief of Appellants pages 7-35 cite the
material facts in the record, and pages 35-44 describe the relevant substantive
law in more than sufficient fashion.
Including that where there is direct evidence of discrimination, the
burden shifting test of
McDonnell Douglas
v. Green, (1973) 411
Thus, the appellants’ citation of Ironworkers.
The
standard for reviewing a summary judgment is that, in viewing the evidence in a
light favorable to the non-moving party, whether a rational trier
of fact could find in favor of the non-moving party. Merely showing, if
King’s Command could show,
that a rational trier of fact can make an alternative
finding favoring King’s Command, does not meet the burden to justify summary
judgment depriving the appellants either a bench trial or a trial by jury as to
fact as guaranteed by
Article I Section 21 of the
Washington Constitution. It is only in a trial where the trier of fact can observe the demeanor of the witnesses
while giving testimony, and thereby make the necessary credibility
determinations.
E-Z Loader Boat Trailers,
Inc. v. Travelers Indemnity Co., (1986) 106
Discrimination may occur because of the
disparate treatment of persons or because actions result in a disparate impact
upon different people. To prove "disparate treatment" a plaintiff
must show that an employer treated an
individual employee or group of employees differently because of sex, race,
age, religion or some other improper differentiation.
International Bhd. of Teamsters v.
Where either disparate treatment or disparate impact
can be shown on the basis of race or other improper distinction, a violation of
chapter 49.60 RCW is proven. A rational trier of fact can find both disparate treatment and
disparate impact are shown against King’s Command Foods, Inc. in the evidence
set forth in the declarations designated by the appellants in the Clerk’s
Papers and as cited in the
Brief of Appellants pages 7-35.
King’s
Command complains that the appellants cite discrimination in things other than
promotion and opportunities in career growth.
Brief of Respondent pages 29-72.
First, discrimination in hiring, Brief of Respondent pages 29-33, in
discharge from employment, Brief of Respondent pages 33-38, in discipline,
Brief of Respondent pages 38-48, and in the payment of wages, Brief of
Respondent pages 48-51, are clearly within the complaint of discrimination in
promotion and opportunities for career growth.
All discrimination in the workplace affects promotions and opportunities
in career growth. Precisely
because a claim of disparate treatment requires proof of discriminatory motive,
EZ-Loader, supra, 106
Discrimination
in promotion, opportunities in career growth, hiring, discharge from
employment, discipline, payment of wages, racial harassment, Brief of
Respondent pages 51-63, and the other assertions, Brief of Respondent pages
63-72 are all within the prohibitions of
RCW 49.60.180: to refuse to hire, to
discharge or bar from employment, and to “discriminate against any person in
compensation or in other terms or conditions of employment” because of race,
color, or national origin.
The
appellants pled:
KING’S COMMAND FOODS, INC.
discriminated against them on the basis of their race, in violation of their
civil right to be free from employment discrimination on the basis of their
race provided by
RCW 49.60.030(1)(a)
in their
Complaint, Sub. No. 1, page 2 CP 2, requested damages pursuant to
RCW
49.60.030(2),
(1) The right to be free from discrimination because of race,
creed, color, national origin, sex, or the presence of any sensory, mental, or
physical disability or the use of a trained dog guide or service animal by a
disabled person is recognized as and declared to be a civil right. This right
shall include, but not be limited to:
(a) The right to obtain and hold employment without
discrimination;
And
RCW 49.60.030(2) reads:
(2) Any person deeming himself or herself injured by any act in
violation of this chapter shall have a civil action in a court of competent
jurisdiction to enjoin further violations, or to recover the actual damages
sustained by the person, or both, together with the cost of suit including
reasonable attorneys' fees or any other appropriate remedy authorized by this
chapter or the United States Civil Rights Act of 1964 as amended, or the
Federal Fair Housing Amendments Act of 1988 (42 U.S.C. Sec. 3601 et seq.).
As the appellants requested relief pursuant to
RCW
49.60.030(2), CP 3 and 6, King’s Command was on notice that the appellants were
holding it liable for every action in violation of
chapter 49.60 RCW, including
every action in violation of
RCW 49.60.180.
Christensen v.
A claim is adequately pleaded if it contains a short, plain
statement showing the pleader is entitled to relief, and a demand for judgment
based thereon.
Sherwood v. Moxee School Dist. No. 90, 158 Wash.Dec. 349, 363 P. 2d. 138 (1961). A complaint should apprise the defendant of
what the plaintiff’s claim is and the legal grounds upon which it rests, and
should not be dismissed unless it appears beyond doubt that proof of no set of
facts would entitle the plaintiff to relief.
Sherwood is also
reported at 58
No longer is it necessary for a plaintiff to plead the facts
“constituting a cause of action.”
Indeed, the phrase “cause of action” no longer appears anywhere in the
rules of civil procedure. The word
“claim” alone is used.
That
is the reason the appellants withdrew their Second Motion to Amend Complaint,
Sub No. 110, CP 1889-1897, by letter, CP 4347, cited by Brief of Respondent
pages 29 and 33, see Declaration of Judith Calhoun in Support of Withdrawing
Second Amended Complaint, Sub No. 114A, CP 4504-4505. Failure to hire is within
RCW 49.60.030(1)(a), and certainly limits opportunities for career growth,
therefore amendment was unnecessary. It
is NOT a deliberate decision to give
up such a claim. Discharge from
employment, discipline, payment of wages, racial
harassment, and the other incidents at issue limit opportunities for career
growth. If racially motivated they are
within
RCW 49.60.030(1)(a), and therefore the
appellants did not believe further amendments to their complaint were necessary
to assert tort liability due to these incidents.
LaMon v.
Relief
may be granted as appropriate to the facts, and is not restricted to the relief
requested in the complaint. Dormitzer v. German Savings & Loan
Society, (1900) 23
C. For such other and
further relief as to the Court seems reasonable and equitable.
Where a plaintiff had failed to include a general
prayer for relief, Yarwood v. Johnson, (1902) 29 Wash. 643,
649-650, 70 P. 123 found that:
“If a plaintiff sets forth facts constituting a cause of action
and entitling him to some relief, he is not to be turned out of court because
he has misconceived the nature of his remedial right.” See, also. Chambers v.
carrying over the
doctrine from the courts of
It seems to us that a court
of equity, having assumed jurisdiction of this case for one purpose, had the
power to hear and determine not only the matter of dissolution, but all rights
of the parties incident thereto.
And it quoted McKay
v. Calderwood, (1905) 37 Wash. 194, 198, 79 P.
29:
We have frequently decided,
in principle, that, under the provisions of the code, litigants cannot be
expelled from the court at one door under the burden of accumulated costs, with
the admonition to enter the court at another door with another accumulation of
costs; but that, whatever the rights the plaintiff had under the complaint,
conceding its allegations to be true, will be tried out by the court, and the
proper judgment in the cause rendered.
And it cited Lawrence
v. Halverson, (1906) 41 Wash. 534, 83 P. 889.
This
doctrine has never been reversed by any published opinion of the Washington
courts since, and certainly not by
LaMon, supra,
cited by the Brief of Respondent pages 29, 33, 48, 51, and 63.
Fischer-McReynolds v. Quasim, (2000) 101
The
validity of the previous approach can be seen in this case. Had the appellants not included the phrase:
“In promotions and opportunities for career growth,” in their Complaint, Sub.
No. 1, page 2 CP 2, and their Amended Complaint, Sub No. 55A, page 2, CP 5,
King’s Command could not make any cognizable claim that the appellants were
limited to only their claims for discrimination as to promotions and
opportunities for career growth. With
this phrase, failure to hire, discharge from employment, discipline, payment of
wages, racial harassment, and the other incidents at issue as being racially
motivated, are included within the appellants’ claim as they all limit
opportunities for career growth.
King’s Command believed itself to be on notice for liability for racial discrimination in failure to hire, discharge from employment, discipline, payment of wages, racial harassment, and the other incidents. Most of the evidence cited in the Brief of Appellants pages 7-35 is deposition testimony entered into evidence by King’s Command. King’s Command engaged in an extensive discovery process in which the appellants cooperated TO THE BEST OF THEIR ABILITY.[2] While the appellants challenge the sanctions imposed for alleged deficiencies in cooperating in discovery, the depositions of those appellants able to attend are not at issue in the sanctions. It is King’s Command, through its attorneys, who asked the appellants questions concerning racial discrimination with respect to failure to hire, discharge from employment, discipline, payment of wages, racial harassment, and other incidents. It was REASONABLE for King’s Command to ask such questions because the Complaint and the Amended Complaint placed it on notice that it was liable for all incidents of racial discrimination in employment and that all evidence of racial animus is relevant to claims asserted by the appellants.
Having
thus generated the evidence of racial discrimination in employment with respect
to failure to hire, discharge from employment, discipline, payment of wages,
racial harassment, and other incidents, King’s Command cannot then complain
that it was not on notice because of a few extra words written in the Complaint
and the Amended Complaint. The
appellants are entitled to relief for discrimination in employment with respect
to failure to hire, discharge from employment, discipline, payment of wages,
racial harassment, and other incidents as well as with respect to promotion and
opportunities for career growth, because all limit their opportunities in
career growth.
B. As to the Awards for Sanctions
Brief
of Appellants pages 44-48 set forth facts and arguments that support
appellants’ contention that the awards for sanctions should be overturned on
appeal.
King’s Command argues in Brief
of Respondent pages 27-29 that the awards for sanctions should be sustained.
As to
the sanctions imposed for amending the Complaint, Order, Sub.
No. 86, CP 38-39, the appellants did not ask for any change in the substance of
the complaint that would have apprised King’s Command of any significant new
liabilities that the original Complaint, Sub No. 1, CP 1-3, did not apprise it
of. All the plaintiffs asked for and
received was to add two new plaintiffs and to dismiss one plaintiff who had
passed away.
That
is it. The appellants did not request an
extension of time.
The
experiences of the two new plaintiffs, Curtis Hollis and Benjamin Barnes, would
have been the logical subject of King’s Command’s research and discovery
efforts because as black employees of King’s Command, their experiences would
have been relevant to the claims already asserted.
King’s
Command argues that there are four reasons to affirm this award, Brief of
Respondent pages 27-28: 1) No appeal taken from the Order, Sub No. 86, CP
38-39, and not reviewable because it does not
prejudice the summary judgment that is appealed, RAP 2.4(b) and (c), also
argued for the other awards for sanction. 2) Appellants not aggrieved party
with respect to this order. RAP 3.1. 3)
Appellants fail to assign error to the findings upon which award is based, also
argued for the other awards for sanction.
4) Trial court had tenable grounds to enter Order, also argued for the
other awards for sanctions.
As to
1): This Order, CP 38-29, was entered on
The appellants’ notices of appeal do not include any of the
various Orders of Contempt to which they assign error in their briefs. The State argues that the issues regarding
contempt are therefore beyond the scope of this appeal, pursuant to RCW
2.4(b). Appellants urge the court to
apply RAP 18.8(a) to waive RAP 2.4 “in order to serve the ends of
justice.” This court has held that “[t]he purpose of a notice of appeal is to notify the adverse
party that an appeal is intended.”
State v. Olson, 74 Wn.
App. 126, 128, 872 P.2d 64 (1994),
aff’d 126 Wn.2d 315, 893 P.2d 629 (1995). Appellants’ briefs set forth assignments of
error, arguments on the issues raised and references to legal authority. The State’s briefs addresses the contempt
issues which appellants raise; the State will not be unduly prejudiced by
this
court’s decision to review the contempt issues raised in the appellants’
briefs. Review of those issues will best
serve the interests of justice. We will
therefore reach the merits of the contempt issues.
All of these conditions are met with respect to the
awards of sanctions.
As to
2) The award for sanctions was imposed on Paul H.
King, who was required to withdraw from representation of the appellants in
favor of John R. Scannell. Arguably, neither the appellants nor Mr. Scannell have a pecuniary interest in the $150.00
awarded. However, the means by which
counsel for King’s Command obtained this award, set forth in Brief of
Appellants pages 44-46, are unethical and grounds by themselves for CR 11
sanctions.
A
litigant’s rights with respect to any court proceeding are the same as his
attorney’s rights. They cannot be
separated as the attorney is representing the litigant. Such personal rights include the due process
right to notice and opportunity to be heard before any sanctions be imposed under
Article I Section 3 of the
Washington
Constitution and the
Fourteenth Amendment.
Mullane v. Central Hanover Bank & Trust
Co., (1950) 339
In
the case of a motion for sanctions or any other motion, the Civil Rules and the
Local Civil Rules for King County Superior Court set forth the means by which
such motion is to be noted and served.
Hiding it in a response to another motion is offensive to the personal
right of the appellants through their attorney to rely upon these procedures.
In
the case of plaintiffs alleging discrimination in employment, the surprise
award for sanctions against their attorney offended the public policy imperative
behind
RCW 49.60.030(2) to provide an incentive for attorneys such as Paul King
to bring action to enforce the civil rights set forth in the
Washington Law
Against Discrimination.
We cannot
uphold the attorney fee award in this case because it undermines the
legislative purposes of enabling vigorous enforcement of the Law Against Discrimination and making it financially feasible to
litigate discrimination claims. Attorney McGavick
undertook a difficult discrimination case against a unique
defendant, the agency charged with preventing discrimination. He won the case,
vindicating
Likewise, for this Court to uphold the surprise award
for sanctions against Paul King, the inevitable result would make it more
difficult for persons suffering from discrimination to obtain competent legal
representation.
As to
3) and 4), neither the facts nor tenable grounds to enter an award for
sanctions are relevant where there was a violation of the rules setting forth
the form of motion, note for motion, and service of motion that are designed to
implement the due process requirement for notice and opportunity to be heard.
As to
the other orders imposing sanctions, the
Brief of Appellants incorporated by
reference the arguments made before the superior court. It is obvious that an order imposing
sanctions on those appellants who attended depositions for the alleged
non-cooperation of those appellants who did not, offends justice. The nature of the orders, imposing liability
jointly and severally, unconscionably allowed
King’s Command to collect over
$4,800 from whichever appellant whose assets they were able to find, including
Joe Donkor’s wages through garnishment.
It is
further untenable to impose discovery sanctions in favor of a defendant in a
discrimination action who refused to participate in a telephone deposition of
Eric Arhin who was unable to re-enter the United
States to attend a deposition in person, and then to allow collection of said
sanction against those appellants who are present in the United States,
including Joe Donkor.
Sufficient
record exists below for this Court to find that the appellants cooperated with
King’s Command’s excessive and unnecessarily repeated discovery requests to the
best of their ability. Upon such finding
an award for sanctions against litigants who made their best effort at
compliance is untenable.
The
award for discovery sanctions offends the public policy imperative of behind
RCW 49.60.030(2), in that it allows a discrimination defendant to abuse its
accusers and therefore deter other employees who may have a good faith cause of
action for discrimination in employment.
C. As
to Respondent’s Request for Sanctions on Appeal
Requested by King’s Command in Brief of Respondent page 76.
RAP
18.9 provides that an appellate court may impose sanctions for a frivolous
appeal. It is the same standard for
sanctions for a frivolous complaint under CR 11 and is authorized by
RCW
4.84.185. No such motion was brought at
any time in the superior court by
King’s Command, and it is now more than 30
days since the most recent superior court order in the action below.
A frivolous claim is one that cannot
be supported by any rational argument in law or fact,
Forster v. Pierce
County, (2000) 99
The statute also requires
the action be frivolous in its entirety, i.e., if any of the claims asserted
are not frivolous, then the action is not frivolous. Given the welter of statutes involved here,
we cannot say the action is utterly frivolous. We reverse the order granting
reasonable attorney fees.
The
statute being
RCW 4.84.185.
Forster thus found that a challenge
to Pierce County’s denial of a concealed weapons permit to a person convicted
of delivering illegal drugs in 1972 as being based on an ex post facto law, the
Violence Reduction Act, Laws of Washington 1994 1st Sp. Sess., c. 7 §402
amending
RCW 9.41.040, was not utterly frivolous.[3]
The evidence in the Clerk’s Papers should
be sufficient for this Court to find that out of 122 separate assertions and
allegations of racial discrimination in employment, at least one can be
supported by a rational argument in law and fact, and therefore under
Forster, is precluded from awarding
sanctions for a frivolous appeal. If
this Court finds that as a pattern of behavior that discriminates in employment
is offensive to
chapter
49.60 RCW, all 122 allegations and assertions are brought in good faith because
a pattern of behavior is a claim that can be supported by multiple
incidents.
This Court need not agree
with the appellants to find that the appellants acted in good faith, the
argument merely has to be supportable in law and fact.
And
if so, the public policy imperative of
chapter 49.60 RCW would be defeated by
any award for sanctions, as it would allow a discrimination defendant to abuse
its accusers and therefore deter other employees who have a good faith claim for
unlawful discrimination in employment.
II. APPELLANTS’ REQUEST COSTS AND A
REASONABLE ATTORNEY’S FEE ON
APPEAL.
Through
an oversight and under pressure to keep the
Brief of Appellants within 50
pages, the appellants neglected to request an award for costs and a reasonable
attorney’s fee on appeal in the
Brief of Appellants. The appellants apologize for any
inconvenience that results from this oversight.
Boyd v.
Likewise,
this Court may enforce the public policy imperative of
RCW 49.60.030(2) as
found by
III. IN
CLOSING
In
closing, a quote from the
Declaration of Shabae Diquan in Opposition to Defendant’s Motion for Summary
Judgment (Amended) (Diquan Declaration 190), Sub No.
190, CP 977-982 to illustrate the human impact of the corporate culture at
King’s Command Foods, Inc.:
King's
Command did practice racism on me in their hiring practices of not adhering to
their policy of hiring full time those people who have worked for 90 days
consecutively. I applied for every job
opening listed, orally and by written application. I was overlooked each time for a white person
who did not have more skills, qualifications or more seniority than me. I talked to the people that got the jobs
about their skills and they had less. .
. . In response to my asking for a
position, I was told that when they wanted to hire another black, “damn it,
they would hire one, until then get back to work." I reported and filed complaints of the
working conditions at King's Command as biased towards African-Americans and
non-white employees, as well as the unfair, hostile and racially charged work
atmosphere and conditions. I wrote up
grievance letters on the matters and submitted to the company. . . .
Nothing was ever done about it. .
. .
I have
often . . .heard many of the white staff and the office staff members using
racial and derogatory remarks such as "ass-holes,"
"stupid," "dumb Nigger" or "dummy," and
"those lazy black mother fuckers never do anything right" . . .
towards the non-white workers on the job almost daily. I was called a "Nigger" and a "Black Sambo Darkie" by
King's Command's white supervisors.
Terry Smith said black people reminded him of the little black faced
statues that holds a lantern light on his grass front lawn. Kirk McCoy said Terry was right, that's what it
reminded him of, too.
When I
asked Terry Smith what what a "Sambo-Darkie" was he said, "you
know Shabae, a porch monkey." Then he said "you have never heard that
before?" I said no I had not and
asked not to be called that again. To
this he said to me, "What!!! Do you
think the Niggers are running King Command?
Well you’re not. Now get back to
work or you’re fired."
Many times
after that during work or breaks some of my white coworkers as I passed by them
grouped together at lunch or on breaks have called me and my African-American
coworkers, "the Slaves of King's Command," "African jungle
bunnies," "spear throwers,", "spear chuckers",
etc. When I reported this to the personnel office and the appropriate officials
to stop the racial talk, I was told that only Niggers make problems and if I
tried to take this issue any further I would be acting like a Nigger and I
would find myself unemployed and out of a job, because no black workers would
support me because they don't want to lose their jobs. I was told to stop listening to the talk if
it bothered me so much. . . .
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. Furthermore, the appellants should be awarded
their costs and a reasonable attorney’s fee incurred in bringing this appeal.
Dated this 26th day of February, 2003
Respectfully
submitted,
____________________________________
John R. Scannell, WSBA #31035
[1] Chambers v.
[2] Eric Arhin
was unable to re-enter the
[3] The Supreme Court of Washington split 5-4 in
State
v. Schmidt, (2001) 143
