* Ignacio Marin, Appellant V. King Co Wa, Respondent

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
IGNACIO MARIN,
Appellant,
KING COUNTY, WASHINGTON,
Respondent.
No. 72666-8-1
ORDER GRANTING MOTION
TO PUBLISH OPINION
Appellant Ignacio Marin and respondent King County, having both filed motions
to publish opinion, and the hearing panel having reconsidered its prior determination
and finding that the opinion will be of precedential value; now, therefore, it is hereby:
ORDERED that the unpublished opinion filed June 6, 2016, shall be published
and printed in the Washington Appellate Reports.
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Done this 	\\ 	day of 	\o\iA 	, 2016.
FOR THE COURT:
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Leach, J. — Ignacio Marin appeals the dismissal of this lawsuit against his
former employer, 	King 	County 	(County). 	Marin 	alleged 	disparate treatment,
hostile 	work 	environment, 	and 	failure 	to 	accommodate 	disabilities 	while 	he
worked in the County's Wastewater Treatment Division (WTD). 	The trial court
dismissed Marin's disparate treatment claim on summary judgment. 	After the
close of evidence at trial, the court directed a verdict for the County on Marin's
claim of hostile work environment based on retaliation. 	The jury then rendered
unanimous 	defense 	verdicts 	on 	the 	remainder 	of 	Marin's 	hostile 	work
environment claim and on his failure-to-accommodate claim. 	On appeal, Marin
makes 	18 	assignments 	of 	error. 	Because 	he 	fails 	to 	support 	several
assignments with adequate argument, citations to the record, and legal authority,
and the remaining assignments lack merit, we affirm.
n
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 72666-8-1 / 2
BACKGROUND
Substantive Facts
Ignacio Marin immigrated to the United States from Peru in 1975. 	In 1982,
he began working as an operator for WTD at the West Point Treatment Plant in
Seattle. 	Marin suffers from anxiety, depression, and panic attacks.
Operators at King County wastewater treatment plants work on crews of
five or six people led by a shift supervisor. 	They have responsibility for various
types of wastewater treatment equipment, some of it hazardous. 	They also
respond to emergencies, ensure compliance with safety procedures, and clean
the plant.
Marin joined D Crew at West Point in 2007. 	His supervisor was James
Sagnis, 	who at 	times appointed 	Mark 	Horton, 	the 	most experienced 	crew
member, as a temporary supervisor. 	Marin had a turbulent relationship with
Sagnis and 	Horton. 	In April 2009, Horton complained to Sagnis that Marin
refused to follow a "priority directive" that the plant manager had issued. 	The
directive 	requested 	that all 	employees 	assist 	in 	quickly cleaning the 	plant's
preaeration tanks. 	Marin worked on the priority tasks for less than an hour and
spent most of two days 	performing 	other, 	low-priority work. 	When Horton
confronted 	Marin, Marin told him the 	preaeration work made him ill. 	Horton
informed Sagnis that he suspected Marin was using sickness as an excuse to
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No. 72666-8-1 / 3
avoid 	doing 	the 	unpleasant 	priority 	tasks. 	Marin 	secretly 	recorded 	two
conversations with Sagnis about these accusations. 	In May, Sagnis gave Marin
a "documented oral reprimand." 	Marin promptly filed a union grievance of the
reprimand. 	The 	County later investigated the 	incident, 	concluded that the
reprimand was based on a misunderstanding, and withdrew it.1
In June, Marin complained to WDT's human resources department (HR),
alleging 	a 	hostile 	work 	environment. 	The 	County 	hired 	an 	independent
investigator, Karen Sutherland, to investigate these complaints. 	She found no
evidence to support Marin's accusations.
The same month, following his conflict with Sagnis, Marin requested, and
the County granted, a transfer to Jim Alenduff's C Crew at the South Plant in
Renton. 	This assignment was initially temporary. 	Meanwhile, 	that October,
Sagnis told an HR staff member that Marin had "shit all over the crew" and "it
would 	not 	be 	pleasant" 	if he 	returned. 	The 	County 	gave Sagnis a 	written
reprimand for threatening retaliation against Marin.
Like other West Point operators, Marin considered South Plant a desirable
assignment because of its more convenient location. 	Because of the size of
South Plant and its differences from West Point, however, Marin needed training
to be 	proficient in the 	new 	plant. 	At his crew's request, 	Alenduff restricted
1 The County withdrew the reprimand in March 2010.
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No. 72666-8-1 / 4
Marin's work duties while his assignment was temporary. 	He later explained that
Marin repeatedly made errors on C Crew that put crew members in "jeopardy."
In 	response, 	Marin 	complained 	to 	HR 	that 	he 	was 	not 	receiving
meaningful assignments, the crew did not want him working in their areas, and
they were aggressive toward him when he made mistakes. 	Marin alleged that
members of C Crew harassed, discriminated against, and retaliated against him.
The County again hired Sutherland to investigate, but this time Marin did not
cooperate. 	Sutherland again found no evidence of discrimination.
As Marin's reassignment to South Plant had been temporary, the County
offered to return him to West Point. 	But after the conflicts on C Crew and after
meeting B Crew supervisor Cheryl Read, Marin decided to remain at South Plant
and move to B Crew. 	He began on that crew in late October 2009. 	Meanwhile,
through his attorney, Marin anonymously reported to the County that Alenduff
had 	shown 	obscene 	computer 	images 	to 	coworkers, 	including 	a 	female
custodian. Alenduff was eventually forced to resign.
In early 2010, Marin asked the County to make his transfer to Read's crew
permanent to 	accommodate 	his 	posttraumatic stress 	disorder (PTSD). 	The
County agreed in April 2010.
While on B Crew, Marin repeatedly told HR and disability services he was
happy 	with 	his 	new 	supervisor 	and 	crew 	and 	did 	not 	need 	more
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 72666-8-1 / 5
accommodations. 	In December 2010, however, Marin did not follow the correct
procedure to "lock out" and "tag out" a sewage pump. 	Marin approached Read
and told her about the incident on the same day. 	Read saw it as a basic error for
someone with Marin's experience. 	Marin perceived Read to be yelling at him
and became anxious. 	He told her he had to visit his doctor and left early. 	Read
did not see Marin again until January 1, 2011. That week, she and Marin walked
through 	the 	procedure 	he 	should 	have 	followed, 	and 	she 	gave 	him 	a
Teach/Lead/Coach memo, or TLC. 	A TLC is not discipline, though management
may base future discipline on a TLC.
Marin took medical leave on January 5. 	The County asked for medical
information and tried to engage him in its process. 	Marin sent notes from two
doctors saying that work 	had aggravated his "acute situational stress" and
PTSD.2 	The County requested more information. 	Marin 	did 	not provide it.
Instead, he gave notice he would retire in May 2011.
Procedural Facts
Marin sued the County in July 2011. 	He alleging six causes of action:
disparate treatment, hostile 	work 	environment, 	and failure 	to accommodate
2 One of Marin's doctors acknowledged at trial that Marin "probably" did
not have PTSD under the accepted definition.
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No. 72666-8-1 / 6
disabilities under the Washington Law Against Discrimination3 (WLAD), wrongful
discharge, and both intentional and negligent infliction of emotional distress.
At the County's request, the court found that Marin's recordings of his
conversations with Sagnis violated the privacy act4 and excluded the recordings
and 	Marin's 	observations 	of the 	conversations. 	The 	court 	also 	sanctioned
Marin's counsel $5,000 for failing to disclose the recordings' existence until after
her firm deposed Sagnis.
After discovery, the trial court dismissed on summary judgment four of
Marin's claims: 	disparate treatment under WLAD, wrongful discharge, and both
types of emotional distress. 	Before trial, the court excluded evidence about
allegations that occurred before the limitations period began in May 2008, with
limited exceptions. 	The court also ruled that Marin could not offer evidence that
any coworker retaliated against him without first laying the foundation that the
coworker was aware of Marin's discrimination complaint.
The parties tried the case over 15 days in September 2014. 	During voir
dire, juror 71 disclosed on his questionnaire and in response to further questions
from Marin that he was a "[g]ood friend with a King County prosecutor." The trial
court declined to dismiss juror 71 at that point.
3 Ch. 49.60 RCW.
4 Ch. 9.73 RCW.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 72666-8-1 / 7
During trial, the trial court struck a statement by Marin's coworker Lloyd
Holman that he heard from unidentified coworkers that Marin had complained
against Alenduff. 	The court had conditioned that statement's admission on Marin
"t[ying] 	it up" with evidence 	of the 	speakers' 	identities 	and 	the 	statements'
timing—evidence 	Marin 	did 	not 	provide. 	Later, 	the 	trial 	court 	allowed 	the
County's expert, Dr. McClung, to testify that Marin had "adjustment disorder with
paranoid personality traits." 	But the court excluded any "comment on credibility"
from McClung, such as testimony that Marin "is likely to perceive harassment."
At the close of evidence, the court granted the County's request for a
directed verdict in part. 	It dismissed the retaliation component of Marin's hostile
work environment claim but allowed the jury to decide the rest of his hostile work
environment 	claim 	and 	his 	accommodation 	claim. 	The jury then 	rendered
unanimous verdicts for the County on those claims. 	The court awarded the
County $14,378.37 in costs. 	Marin appeals.
ANALYSIS
Exclusion of Recorded Conversations and Resulting Discovery Sanctions
Marin 	challenges 	the 	trial 	court's 	exclusion 	of 	evidence 	of 	his
conversations with his D Crew supervisor, James Sagnis, and its imposition of
sanctions against 	his 	counsel for delayed 	disclosure 	of recordings 	of those
conversations. This court denied discretionary review of these rulings.
 	 	 	 	 	 	 	 	 	 	 	 	 	

No. 72666-8-1 / 8
We review a trial court's interpretation of statutes and court rules de novo.5
We review for abuse of discretion a trial court's choice of sanctions for violation
of a discovery order.6
Marin first contends that his conversations with Sagnis were not "private"
under RCW 9.73.030. 	No statute defines the term "private." 	To 	determine
whether a conversation is private under the privacy act, we consider "(1) the
subject matter of the communication, (2) the location of the participants, (3) the
potential presence of third parties, (4) the role of the interloper, (5) whether the
parties 'manifest a subjective intention that it be private,' and (6) whether any
subjective intention of privacy is reasonable."7
Here, Marin and Sagnis had lengthy conversations in an office at work that
involved 	only the two of them. 	No third party was present. 	Marin does not
meaningfully distinguish Smith v. Employment Security Department,8 where the
court found conversations between public employees in an office to be private as
a matter of law. 	Nor does he cite to authority to support his argument that the
conversations 	were 	"public 	in 	nature" 	because 	they 	were 	between 	two
government employees who each later revealed parts of what was said. 	We
5 Neversv. Fireside, Inc., 133 Wn.2d 804, 809, 947 P.2d 721 (1997).
6 Burnet v. Spokane Ambulance, 	131 Wn.2d 484, 494, 933 P.2d 1036
(1997).
7 State v. Mankin, 158 Wn. App. 111, 118, 241 P.3d 421 (2010) (quoting
State v. Christensen, 153 Wn.2d 186, 193, 102 P.3d 789 (2004)).
«'8 155 Wn. App. 24, 39, 226 P.3d 263 (2010).
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No. 72666-8-1 / 9
distinguish the cases Marin does cite on the basis that they involve documents
rather 	than 	conversations.9 	Following 	Smith, 	we 	conclude 	that 	Marin's
conversations 	with 	his 	supervisor 	were 	"private" 	under 	RCW 	9.73.030. 	A
violation of the privacy act requires exclusion of "all evidence" of the contents of
the 	illegally 	recorded 	conversations.10 	Thus, 	the 	trial 	court did 	not err 	in
excluding the recordings and other evidence regarding the meetings.
Second, Marin argues that even if the trial court properly excluded the
recordings, it erred in sanctioning his attorney, Mary Ruth Mann. 	But the record
contradicts 	Marin's 	assertion 	that 	his 	attorneys 	produced 	the 	recordings
"seasonably." 	An attorney at Mann's firm, Mark Rose, acknowledged that he
knew of the recordings 10 days before the deposition and knew that they were
responsive to the County's discovery requests. 	Rose then told Mann about the
recordings. 	Rose deposed Sagnis, then waited 6 more days to produce the
recordings. 	The trial court acted within its discretion in sanctioning Mann based
on this conduct. 	The other facts Marin recites are irrelevant and obfuscatory.
While 	it sanctioned 	Mann 	$5,000, 	the trial 	court denied 	the 	County's
request to dismiss the case. 	Marin contends, again without meaningful support,
9 Bellevue John Does 1-11 v. Bellevue Sch. Dist. No. 405, 164Wn.2d 199,
215, 189 P.3d 139 (2008) (employee evaluations under the Public Records Act,
ch. 42.56 RCW); Morgan v. City of Federal Way, 166 Wn.2d 747, 756-57, 213
P.3d 596 (2009) (investigative report involving judge's conduct).
10 RCW 9.73.050; see Schonauer v. DCR Entm't, Inc.. 79 Wn. App. 808,
819, 905 P.2d 392 (1995).
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No. 72666-8-1/10
that this court should reverse the sanction because the trial court erroneously
"applied 	CR 	37 	case 	law" 	to 	his 	counsel's 	violation 	of CR 	26(g). 	Marin
acknowledges, though, 	that the standard for sanctions under CR 37 is higher
than 	under CR 26(g). 	And, in any 	case, 	the 	trial court considered CR 37
standards only in declining to sanction Marin with dismissal. 	Thus, the error that
Marin asserts, if it occurred, was harmless.
Finally, Marin contends that the trial court improperly considered Mann's
history of sanctions when deciding the appropriate sanction here. 	The trial court
"deem[ed] th[e] violation to be serious, particularly in light of Ms. Mann's history
of sanctions in previous cases." 	This is not, as Marin contends, an improper use
of character evidence to determine that Mann's conduct was "willful." A trial court
may 	consider an 	attorney's history of misconduct in determining 	appropriate
sanctions.11 	The trial court did not err in doing so here.
Summary Judgment on WLAD Disparate Treatment Claim
Marin next challenges the trial court dismissal on summary judgment of
his 	disparate 	treatment 	claim. 	He 	based 	that 	claim 	on 	two 	theories:
discrimination against him as a 	member of a 	protected class and 	retaliation
against him for protected activity.12 	We review a grant of summary judgment de
11 In re Disciplinary Proceeding Against Cohen, 150 Wn.2d 744, 760 n.8,
761-62, 82 P.3d 224 (2004).
12 Marin repeatedly cites to the trial transcript to support his contentions
that summary judgment was inappropriate. 	This court restricts its review to the
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No. 72666-8-1 /11
novo, considering the same record as the trial court in the light most favorable to
the nonmoving party.13 	Summary judgment is appropriate only when there is no
genuine issue as to any material fact.14
Disparate Treatment Based on Protected Status
The elements of a 	prima facie case for disparate treatment based on
protected status are not absolute but vary based on the relevant facts.15 	The
parties agree that Marin is a member of one or more protected classes. 	Marin
must also show that he suffered a tangible adverse employment action. 	This
means "a significant change in employment status, such as hiring, firing, failing to
promote, reassignment with significantly different responsibilities, or a decision
causing a significant change in benefits."16 	He must also show that the action
occurred 	under circumstances that raise a 	reasonable 	inference of unlawful
discrimination and that he was doing satisfactory work.17 	If Marin makes this
record before the trial court at summary judgment. 	Boguch v. Landover Corp.,
153 Wn. App. 595, 608, 224 P.3d 795 (2009).
13 Camicia v. Howard S. Wright Constr. Co., 179 Wn.2d 684, 693, 317
P.3d 987 (2014); Young v. Key Pharm., Inc., 112 Wn.2d 216, 226, 770 P.2d 182
(1989).
14 CR 56(c); Camicia, 179 Wn.2d at 693.
15 See Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 362-63,
753 P.2d 517 (1988). 	Both Marin and the County primarily address the elements
that follow.
16 Burlington Indus.. Inc. v. Ellerth. 524 U.S. 742, 761, 118 S. Ct. 2257,
141 L.Ed. 2d 633 (1998).
17 Anica v. Wal-Mart Stores. Inc.. 120 Wn. App. 481, 488, 84 P.3d 1231
(2004).
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No. 72666-8-1/12
prima 	facie 	showing, 	the 	burden 	shifts 	to 	the 	County 	to 	show 	legitimate,
nondiscriminatory reasons for its adverse employment action.18 	If the County
produces this evidence, the burden returns to Marin to show that the County's
reasons are pretextual. 	This means they "(1) have no basis in fact, (2) were not
really motivating factors for the decision, or (3) were not motivating factors in
employment decisions for other employees in the same circumstances."19
Marin failed to make the reguired prima facie showing. 	First, he did not
present evidence of an adverse employment action. 	None of the actions he
points to, 	many of which 	he misrepresents, 	amount to a tangible change in
employment status.20 	He alleges a general pattern of harassment but does not
support it with citations to the record adequate for this court to review.21
The record does not, in any case, support Marin's assertions. 	The TLC
Marin received on 	B Crew was not an adverse employment action. 	It did not
18 Kirov v. City of Tacoma. 124 Wn. App. 454, 464, 98 P.3d 827 (2004).
19 Kirbv, 124 Wn. App. at 467.
20 	For 	instance, 	Marin 	describes 	as 	"unwarranted 	discipline" 	a 	letter
recommending withdrawal of his reprimand from 	Horton. 	He mischaracterizes
his TLC as containing "threats of discipline." 	He refers to finding "frightening
racial materials at his desk," though the record shows he found the items in a
part of the plant where he did not normally work and no one knew he would be.
And 	he asserts without support he "was disciplined for 	going 	home sick by
collective efforts" of numerous WTD employees.
In arguing 	he created a 	genuine issue of material fact as to adverse
employment actions, Marin again cites primarily to portions of the trial record,
which is not an appropriate basis for review. 	Boguch, 153 Wn. App. at 608.
21 See RAP 10.3(a)(6); Hernandez v. Stender. 182 Wn. App. 52, 59, 358
P.3d 1169(2014).
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No. 72666-8-1/13
result in a discharge, demotion, or change his benefits or responsibilities.22 	And
while Marin alleges that the County denied him training, 	he 	cites only to his
expert's report on county safety procedures. 	That report is not evidence of an
adverse employment action. 	Additionally, the report's conclusions—that WTD's
safety procedures were deficient for all employees—contradict Marin's assertion
that his supervisors treated him differently.
Second, Marin failed to raise a reasonable inference of discrimination. 	He
points to 	no 	evidence that the 	County took an 	adverse 	action 	against him
because 	of 	his 	protected 	class. 	Marin 	contends 	the 	County 	treated 	him
differently than a nonprotected employee, Billy Burton, who also made a lockout
error. 	"Similarly situated employees must have the same supervisor, be subject
to the same standards, and have engaged in the same conduct."23 	Even if Marin
had shown Burton's error to be analogous to his own, Burton is still not a valid
comparator because he worked under a different supervisor.24 	And the record
does not show that the County treated Marin differently than Burton, who also
22 See Donahue v. Cent. Wash. Univ.. 140 Wn. App. 17, 26, 163 P.3d 801
(2007) (holding that professor did not suffer adverse action where he "did not
lose tenure, he was not demoted, and he did not receive a reduction in pay").
23 Kirbv. 124 Wn. App. at 475 n.16; see also Clark v. Runvon. 218 F.3d
915, 918 (8th Cir. 2000).
24 See Xuan Huvnh v. U.S. Dep't of Transp.. 794 F.3d 952, 960 (8th Cir.
2015); 	Rodriguez-Cuervos v. Wal-Mart Stores. Inc.. 181 F.3d 15, 21 (1st Cir.
1999) (both 	finding employees under different supervisors were 	not similarly
situated).
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No. 72666-8-1 /14
received a TLC—albeit an oral one—after his error. 	A reasonable employee
would 	not 	interpret 	Marin's 	TLC 	as 	setting 	"impossible 	or 	terrifying 	unique
performance standards" or threatening termination.
Even if Marin had made a prima facie showing of disparate treatment, he
failed to show the County's reasons are pretextual. 	Marin does not dispute that
the County showed legitimate reasons for each action. 	In arguing those reasons
are pretextual, Marin lists treatment both during and before his time on D Crew.
But he does not support that list with specific citations to the record or explain
how 	it shows 	pretext.25 	No reasonable juror could 	find from the 	evidence
presented that the County's asserted reasons were pretexts for discrimination.
Thus, 	the trial 	court properly dismissed 	Marin's claim of disparate treatment
based on protected status.
Disparate Treatment by Retaliation for Protected Activity
To establish a prima facie case of retaliation, Marin must show that he
engaged in statutorily protected activity, that he suffered an adverse employment
action, and that his protected activity caused the County to take the adverse
25 Marin instead cites to swathes of the record up to 120 pages wide.
These include a declaration by a former coworker, Norm Cook, alleging he and
Marin received disparate assignments from 2000-2003 due to their race. 	Those
events were outside the limitations period, and the trial court explicitly excluded
evidence regarding that period from trial.
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No. 72666-8-1/15
action against him.26 	If Marin makes this prima facie showing, he must also show
that the County's legitimate reasons for its actions were pretextual.27
Here, too, Marin failed to present a prima facie case. 	First, he again failed
to show that he suffered an adverse employment action. 	"An actionable adverse
employment action must involve a change in employment conditions that is more
than 	an 	'inconvenience or alteration of job 	responsibilities.'"28 	This includes
"reducing an employee's workload and pay," but not, for instance, "yelling at an
employee or threatening to fire an employee."29
Marin cites Division Two's recent decision in Boyd v. State30 to contend
that 	the 	treatment 	he 	received, 	taken 	together, 	amounted 	to 	an 	adverse
employment action. 	In that case, 	Boyd 	showed 	that his 	employer, 	a 	state
hospital, suspended him for two weeks without pay, gave him a written reprimand
and 	sent it to 	his 	supervisor along 	with 	a 	list of threatening 	comments 	he
allegedly made, removed him from his ward and patient interaction, and reported
him to the Department of Health and the police.31 	The hospital argued that as a
matter of law, 	some of these acts were 	not adverse. 	The court disagreed,
26 RCW 49.60.210(1); Currier v. Northland Servs., Inc.. 182 Wn. App. 733,
742, 332 P.3d 1006 (2014), review denied. 182 Wn.2d 1006 (2015).
27 Currier. 182 Wn. App. at 743.
28 Kirbv. 124 Wn. App. at 465 (internal quotation marks omitted) (quoting
DeGuiseppe v. Vill. of Bellwood, 68 F.3d 187, 192 (7th Cir. 1995)).
29 Kirbv. 124 Wn. App. at 465.
30 187 Wn. App. 1, 13-14, 349 P.3d 864 (2015).
31 Boyd, 187 Wn. App. at 14.
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No. 72666-8-1/16
stating, "We express no opinion as to whether these employment actions, taken
individually, 	constituted 	adverse 	employment 	actions 	as 	a 	matter 	of 	law.
However, taken in context, a reasonable jury could find that these actions, taken
together, were materially adverse."32
Marin's reliance on 	Boyd is misplaced. 	That decision did not dispense
with the requirement that a plaintiff must present sufficient evidence to survive
summary judgment. 	Marin ignores the differences between his evidence and
that of the plaintiff's in Boyd. 	In contrast to the hospital in Boyd, the County
never suspended Marin without pay; it never reported him to the police or other
authorities. 	Only in the context of these concededly adverse actions did Division
Two 	find 	that 	a 	jury 	could 	conclude 	that the 	hospital's 	other actions 	were
adverse.33 	Here, Marin presented no such context for his claims.
Second, Marin failed to show that his protected activity caused or was a
"substantial factor" in the County taking any of the alleged adverse employment
actions. 	He again compares his case to 	Boyd, where Division Two found a
triable issue as to causation, but we again distinguish that case.34 	After Boyd
told his supervisor to stop harassing him, "she became hostile and threatened to
'make sure [he] can't work in any of the 50 states.'"35 	She then "involved herself
32 Boyd, 187 Wn. App. at 14.
33 Boyd, 187 Wn. App. at 14.
34 Boyd, 187 Wn. App. at 14.
35 Boyd, 187 Wn. App. at 18 (alteration in original).
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in investigating" a complaint that had been made against Boyd, collecting witness
statements and 	interviews, 	and 	writing that 	Boyd "is known to 	lie."36 	Their
employer relied on her statements to discipline Boyd.37 	Here, Marin points to
Sagnis's statements to an HR person showing "retaliatory animus." 	But unlike
the supervisor in Boyd, Sagnis had no involvement with Marin after Marin made
his complaint. 	Sagnis made the statements months after Marin left his crew, and
Marin acknowledges he did 	not know of the statements when he decided to
remain at South Plant. 	Because Marin cannot connect Sagnis's animus with any
alleged action against him, he cannot use it to show causation.
Third, Marin failed to show that anyone at South Plant knew about his
protected activity at West Point, precluding his claim that employees at South
Plant retaliated for that activity. 	He identifies no evidence that supports his bare
assertion 	that the 	entire 	"chain 	of 	command" 	knew 	he 	complained 	against
Sagnis.
Finally, as with his disparate treatment claim, Marin failed to show any
evidence of pretext for retaliation. 	He again points to the TLC he received on B
Crew. 	But as discussed above, the record does not show that the TLC was an
adverse employment action or "adverse compared to other use of 'TLC notes to
36 Boyd, 187 Wn. App. at 18.
37 Boyd, 187 Wn. App. at 18.
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employees" in similar situations. 	The TLC does not support Marin's pretext
argument.
Thus, Marin failed to satisfy his burden to show an adverse employment
action, causation, and pretext to support either his discrimination or retaliation
theory. 	The trial court did not err in dismissing his disparate treatment claim on
summary judgment.
Evidentiary Rulings
The trial court ruled that Marin could not offer evidence that any coworker
retaliated against him without first laying the foundation that the coworker was
aware 	of 	Marin's 	discrimination 	complaint. 	Marin's 	coworkers 	needed 	this
knowledge for their acts to be retaliatory under WLAD.38
Marin makes one challenge to this ruling: 	it restricted him to using direct
and not circumstantial evidence that the alleged retaliator knew he had made a
protected complaint. 	But the trial court's order did no such thing.39 	The order
does not impose this restriction. 	Nothing in the record shows that the trial court
would exclude circumstantial evidence of a coworker's knowledge.
38 Currier. 182 Wn. App. at 746-47.
39 The order required Marin to "lay[ ] an adequate foundation . . . showing
that the accused coworker was aware that [Marin] had made a complaint about
discrimination."
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Marin also claims the trial court erred in striking coworker Lloyd Holman's
testimony that he heard statements from unidentified coworkers that Marin had
complained against his C Crew supervisor, Alenduff.
The trial court may condition admission 	of a 	party's evidence on 	the
party's later introduction of facts necessary to make that evidence 	relevant.40
After eliciting Holman's testimony, Marin offered no evidence that any alleged
harasser had heard that he complained against Alenduff, let alone that they knew
his complaint related to sexual harassment. 	The trial court did not abuse its
discretion 	in finding 	such 	evidence 	necessary to 	make 	Holman's 	testimony
relevant.
Jury Selection Issues
Marin next claims that the trial court failed to fully question and excuse
juror 71, 	improperly reduced Marin's voir dire time, and improperly subtracted
from Marin's trial time for a for-cause challenge.
The trial court has discretion to grant or deny a for-cause challenge.41
That 	"discretion 	includes 	assuring 	that 	an 	impartial 	jury 	is 	selected 	'with
reasonable expedition.'"42 	When "the course of proceeding is not specifically
40 ER 104(b).
41 State v. Wilson. 141 Wn. App. 597, 606, 171 P.3d 501 (2007).
42 State v. Brady, 116 Wn. App. 143, 147, 64 P.3d 1258 (2003) (quoting
State v. Frederiksen, 40 Wn. App. 749, 753, 700 P.2d 369 (1985)).
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No. 72666-8-1 / 20
pointed out by statute," the trial court may adopt "any suitable process or mode of
proceeding . . . which may appear most conformable to the spirit of the laws."43
"[A] 	party accepting 	a juror without exercising 	its available challenges
cannot later challenge that juror's inclusion."44 	But where a juror's misconduct
prevents a party from learning of the juror's bias, the party does not waive its
right to challenge him by failing to question him during voir dire.45
The County contends the jury's unanimity makes Marin's objections about
juror 71 irrelevant. We need not decide this question because the trial court did
not abuse its discretion in handling the jury issues before it.
First, 	Marin waived his for-cause challenge by not raising it during voir
dire.46 The exception to the waiver rule does not apply because juror 71 did not
prevent Marin from learning of his potential bias by misconduct.47 	He disclosed
on his questionnaire that he was "[g]ood friend[s] with a King County prosecutor."
He responded to a pertinent general question about this topic during voir dire by
43 RCW 2.28.150.
44 Dean v. Grp. Health Coop, of Puget Sound. 62 Wn. App. 829, 836, 816
P.2d 757 (1991).
45 In re Pet, of Broten, 130 Wn. App. 326, 337, 122 P.3d 942 (2005).
46 See Dean. 62 Wn. App. at 836.
47 See Broten. 130 Wn. App. at 338. 	Juror misconduct is a fact question
within 	the 	trial 	court's 	discretion. 	Dean. 	62 	Wn. 	App. 	at 	837. 	To 	show
misconduct, "a party 	must prove (1) that 'a juror failed to answer honestly a
material 	question 	on voir dire' 	and 	(2) that 'a 	correct response would have
provided a valid basis for a challenge for cause.'" 	Broten. 130 Wn. App. at 337
(emphasis omitted) (quoting McDonough Power Eguip.. Inc. v. Greenwood. 464
U.S. 548, 556, 104 S. Ct. 845, 78 L. Ed. 2d 663 (1984)).
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No. 72666-8-1 / 21
raising his card. 	Marin did not guestion him or attempt to strike him from the jury
before the panel was sworn. 	Marin did question him after the panel was sworn,
and juror 71 	indicated again that he was a friend 	of a woman in the county
prosecutor's office. 	Marin did not ask juror 71 whether he thought that friendship
would affect his ability to judge the case fairly. 	The record shows the trial court
ensured Marin had "reasonable time to discover any prejudices."
Second, the record does not support Marin's contention that the trial court
"reduced the allotted voir dire time." 	Marin initially used his allotted 30 minutes.
And after juror 71 e-mailed the court, reraising his issue, the trial court granted
Marin additional time. 	The court's decision to count that additional time against
Marin's trial time was within its discretion to manage the courtroom and ensure
impartial jury selection "'with reasonable expedition.'"48
Finally, Marin established no grounds for cause for dismissing juror 71 at
the end of trial. 	Marin does not address the elements of a for-cause challenge,
and Marin's questioning did not establish juror 71's inability to judge the case
fairly.
Admission of McClung Testimony
Marin 	also 	challenges 	the 	trial 	court's 	admission 	of 	Dr. 	McClung's
testimony.
48 Brady. 116 Wn. App. at 146-47 (quoting Frederiksen. 40 Wn. App. at
753).
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No. 72666-8-1/22
To bring a claim for failure to accommodate, Marin had to show he had a
medical condition "that substantially limited his . . . ability to perform the job."49
He also needed to show he was "qualified to perform the essential functions of
the job."50 Qualified expert testimony is admissible where it "will assist the trier of
fact to understand the evidence or to determine a fact in issue."51 	And if one
party opens the door, the court may admit "'evidence on the same issue to rebut
any false impression that might have resulted.'"52
Here, 	the 	trial 	court excluded 	testimony 	about 	Marin's 	credibility and
instructed the jury to disregard any that came close.53 	McClung's testimony did
not relate to Marin's credibility but to his medical conditions, whether the County
could 	reasonably accommodate them, 	and whether Marin could 	perform 	the
essential functions of his job. 	Marin's accommodations claim put all of these
matters at 	issue. 	Consequently, 	McClung's testimony was not impermissible
49 Riehl v. Foodmaker. Inc., 	152 Wn.2d 138, 145, 94 P.3d 930 (2004)
(quoting Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 193, 23 P.3d 440 (2001)).
50 Davis v. Microsoft Corp., 	149 Wn.2d 521, 532, 70 P.3d 126 (2003)
(emphasis omitted) (quoting J—im, 144 Wn.2d at 193).
51 ER 702.
52 United States v. Sine. 493 F.3d 1021, 1037 (9th 	Cir. 2007) (quoting
United States v. Whitworth. 856 F.2d 1268, 1285 (9th Cir. 1998)); State v. Fisher.
165 Wn.2d 727, 750, 202 P.3d 937 (2009).
53 The court instructed the jury to disregard testimony that "under stress
Mr. 	Marin 	might 	have 	difficulties 	with 	an 	accurate 	perception 	of 	reality."
Instructions can cure errors in admitting testimony. 	State v. Perez-Valdez. 172
Wn.2d 808, 818-19, 265 P.3d 853 (2011).
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No. 72666-8-1 / 23
character evidence under ER 404.54 And since McClung's testimony was highly
probative as to 	Marin's 	medical 	conditions, 	the trial court did 	not 	abuse 	its
discretion in not excluding it under ER 403.
Moreover, Marin opened the door to testimony about the accuracy of his
perceptions. 	His physicians testified that they wrote to the County requesting
accommodations for PTSD, endorsed his belief that his condition flared due to
stress at work, and even opined on his character. 	When cross-examining Dr.
McClung, Marin repeatedly asked whether certain perceptions were "spot-on."
Only 	then, 	on 	redirect, 	did 	the 	County 	clarify 	with 	McClung 	that 	Marin's
perceptions were not all "spot-on."
Finally, Marin waived any objection under ER 702 that a paranoid-traits
diagnosis 	is 	not 	a 	"recognized" 	diagnosis, 	making 	any 	testimony 	about 	it
inadmissible. 	Although he hints at this 	argument, 	Marin does not argue the
elements of the test for admissibility under Frye v. United States55 or cite to
authority. 	Also, he did not object to McClung's testimony on this basis at trial.
54 Cf In re Meistrell, 47 Wn. App. 100, 109, 733 P.2d 1004 (1987) (holding
that ER 404 does not exclude prior mental history as character evidence).
55 293 F. 1013 (D.C. Cir. 1923); see Anderson v. Akzo Nobel Coatings.
Inc.. 	172 	Wn.2d 	593, 	603, 	260 	P.3d 	857 	(2011) 	(applying 	Frye 	test 	in
Washington).
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No. 72666-8-1 / 24
Thus, 	he did not preserve the 	issue for appeal.56 	McClung's testimony was
admissible both on the merits and to rebut Marin's witnesses.
Directed Verdict on Retaliation Aspect of Hostile Work Environment Claim
Marin contends the trial court erred by dismissing Marin's claim of hostile
work environment based on 	retaliation. 	We review a 	ruling on a 	motion for
directed verdict under the same standard as the trial court, affirming the directed
verdict when "'there is no substantial evidence or reasonable inference to sustain
a verdict for the nonmoving party.'"57
To show retaliation based on protected activity, a plaintiff must provide
evidence that the 	individuals 	he 	alleges 	retaliated 	against 	him 	knew of his
protected activity.58 	The WLAD does not prohibit an employer's actions without
evidence of a causal link between the action and a plaintiff's protected activity.59
The trial court dismissed Marin's claim of retaliation-based hostile work
environment 	because 	it determined 	that 	Marin 	presented 	no 	evidence 	that
anyone harassed him after knowing about his protected 	activity. 	The record
supports that finding: 	Marin did not work with Sagnis after complaining against
56 See Johnston-Forbes v. Matsunaga, 181 Wn.2d 346, 356, 333 P.3d 388
(2014).
57 Guiiosa v. Wal-Mart Stores. Inc.. 144 Wn.2d 907, 915, 32 P.3d 250
(2001) (guoting Sing v. John L. Scott, Inc.. 134 Wn.2d 24, 29, 948 P.2d 816
(1997)).
58 See Currier. 182 Wn. App. at 746-47.
59 Alonso v. Qwest Commc'ns Co.. 178 Wn. App. 734, 753-54, 315 P.3d
610(2013).
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No. 72666-8-1 / 25
him, so Sagnis's later comments were not retaliatory. 	No one at South Plant
knew of Marin's complaint against Sagnis or any other protected activity, so
whatever 	conduct 	Marin 	experienced 	at 	South 	Plant 	could 	not 	have 	been
retaliation for that complaint. 	And after Marin then complained about Alenduff,
the County respected his request to remain anonymous. 	Marin presented no
evidence of any conduct by a managing employee who was aware of Marin's
complaints that a reasonable juror could find to be 	harassment. 	Instead, he
alleges, "HR terrified [him] . . . that he would return to Sagnis's" crew "and that
he was 'welcome to go back to West Point D Crew.'" 	He bases these allegations
on the County offering him a choice of remaining at South Plant or returning to
West Point. 	No reasonable juror could interpret those offers to accommodate
Marin as harassment, so HR's knowledge of Marin's protected activity cannot be
the basis of a retaliation claim.
Thus, 	contrary 	to 	Marin's 	assertion 	that 	he 	provided 	"evidence 	of
widespread 	notice 	of 	protected 	WLAD 	activity," 	Marin's 	evidence 	was 	not
sufficient for any rational juror to find retaliatory animus. 	Nowhere does he point
to an individual who both knew of his protected activity and, afterward, took some
action 	that 	could 	reasonably 	be 	construed 	as 	harassment. 	The 	trial court
therefore correctly directed a verdict for the County on Marin's claim of hostile
work environment based on retaliation.
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No. 72666-8-1 / 26
Remaining Assignments of Error
Marin asserts that the trial court erred 	in denying his motions alleging
discovery violations by the County. 	He fails to support these assignments of
error with argument and citations to authority and has thus waived them.60 	And
so far 	as his 	arguments are discernible, they lack merit. 	Marin cites to 	no
evidence that exhibits 618 and 619—summary exhibits of large spreadsheets
containing 	Marin's time entries—should 	have 	been 	produced 	in response to
discovery but were not, and he does not explain how late discovery of those
exhibits prejudiced him.61 	Marin's arguments that the County failed to disclose
exhibits 458, 629, and 630—e-mails and logs regarding the April 2009 "priority
directive" at West Point—similarly lack support.62
60 An appellant's briefs must present "argument in support of the issues
presented for review, together with citations to legal authority and references to
relevant parts of the record." 	RAP 10.3(a)(6). 	"Unsubstantiated assignments of
error are deemed abandoned." 	Kittitas County v. Kittitas County Conserv. Coal..
176 Wn. App. 38, 54, 308 P.3d 745 (2013).
61 	See Collev v. 	Peacehealth. 	177 Wn. App. 717, 727, 312 P.3d 989
(2013) (holding that error in admitting evidence on collateral issue did not require
reversal).
62 The County did produce exhibit 458 in discovery, contrary to Marin's
statement. 	And it did not offer exhibits 629 or 630 into evidence. 	The trial court
invited Marin to submit briefing on those exhibits' admissibility, but Marin never
did so.
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No. 72666-8-1 / 27
Marin also waived his claim that the trial court's imposition of costs was
unauthorized. 	His 	only 	argument—that 	"[s]tatute[s] 	authorized 	few 	of 	the
costs"—is too vague to permit review.63
Marin assigns error to several other trial court actions. 	But he fails to
support these claims too, effectively waiving them.
CONCLUSION
Because Marin failed to present evidence sufficient to create a genuine
issue of material fact as to every element of a disparate treatment claim and
because Marin's numerous other arguments also lack merit, we affirm.
WE CONCUR:
63 See RAP 	10.3(a)(6); Cowiche Canyon 	Conservancy v. Boslev. 	118
Wn.2d 801, 809, 828 P.2d 549 (1992).
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