* Larry Currier Dba American Container Express, Respondent V. Northland Services, Inc, Appellant

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
LARRY CURRIER, individually;
LARRY CURRIER, DBA
AMERICAN CONTAINER EXPRESS,
as sole proprietor and agent; and
AMERICAN CONTAINER EXPRESS,
INC., a Washington corporation,
Respondent,
v.
NORTHLAND SERVICES, INC.,
a Washington corporation,
Appellant,
JUDI McQUADE, in her individual
capacity; JAMES "JIM" SLEETH, in
his individual capacity; PATRICK
FRANSSEN, in his individual capacity;
and LARRY GRAHAM, in his
individual capacity,
Defendants.
NO. 70128-2-1
DIVISION ONE
PUBLISHED OPINION
FILED: 	August 4, 2014
33»
CD
1
c :•
Leach, J. — Northland Services Inc. (NSI) appeals a trial court decision
holding NSI liable for the retaliatory discharge of independent contractor Larry
Currier, dba American Container Express, under the Washington Law Against
Discrimination (WLAD), chapter 49.60 RCW. 	NSI terminated Currier's contract
two 	days 	after 	Currier 	reported 	to 	an 	NSI employee 	racially discriminatory
comments directed at a Latino driver by another contractor driver. 	Because the
WLAD applies to this case and substantial evidence supports the trial court's
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 70128-2-1/2
findings 	and 	conclusions 	that 	retaliation 	was 	a 	substantial 	factor 	in 	NSI's
termination 	of 	Currier, 	we 	affirm 	the 	trial 	court's 	judgment. 	And 	because
substantial evidence supports the trial court's damages award as well as its
finding that NSI did not meet its burden of proof for an after-acquired evidence
defense, we also affirm the court's award of damages, costs, and attorney fees.
Finally, we award Currier, as the prevailing party, his appellate fees and costs
under RAP 18.1 and RCW 49.60.030(2).
FACTS
Larry Currier worked as an independent contractor truck driver for NSI
from 2005 until August 14, 2008. 	Their subcontractor agreement required Currier
to comply with all local, state, and federal laws. 	Either party could terminate the
agreement on 30 days' notice or immediately upon default.
Yard supervisor Tom Vires advised Currier to install a citizens band (CB)
radio in his truck to facilitate communication with 	NSI dispatchers and forklift
operators. 	Currier told Vires he hated and did not want to hear the "obscene"
racist and sexist speech routinely heard on CB, 	including over the company's
radio frequency.1 	Later, at Vires's request, Currier installed a radio.
Around 	2007, 	Currier heard 	Jim 	Sleeth, 	a 	contractor driver who 	later
became an NSI dispatcher, say in the terminal, "Let's go put on the white sheets
and scare Fred!" 	Fred Morris was an African American driver for NSI.2 	In 2008,
1 Vires testified that Currier referred to "obscene" or "explicit" speech but
that he did not remember Currier referencing sexist or racist speech.
2 Sleeth denied making this statement.
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 70128-2-1/3
Currier witnessed driver Terry Mock verbally abuse two Latino drivers named
Victor and Julio: 	"Hey, f**ing Mexicans, what do you got for sale? 	I know you got
something for sale because all Mexicans are thieves." 	Currier did not report
either of these incidents.
In spring or summer 2008, Currier had a confrontation in the receiving
office with Billy Howell, another driver. 	Howell whispered to Currier, "Hey, f**ing
N** lover, you're just a piece of s**t. 	You're ripping these people off here by not
working hard enough." Currier became angry, and a loud argument followed.
On August 12, 2008, Currier heard Howell yell across the yard to a Latino
driver, 	Marco Martinez, "Hey, f**ing Mexican, you know why you have to go to
Portland and I don't? 	Because f**ing Mexicans are good at crossing borders."
Currier was 	upset and 	reported 	Howell's comment to 	Judith 	McQuade, 	NSI
quality assurance manager. 	He did not report it to dispatch because he believed
dispatch was involved. 	McQuade immediately reported the incident to dispatcher
Sleeth and reported it to dispatcher Patrick Franssen the next day.
On August 14, 2008, Sleeth and Franssen met with Larry Graham, NSI
terminal 	operations 	manager, 	for 	guidance 	on 	how 	to 	terminate 	Currier's
contract. 	Graham 	told 	Sleeth 	and 	Franssen 	that 	because 	Currier 	was 	a
contractor and not an employee, they "could just terminate the contract if he was
not performing," and recommended they do so. 	Sleeth and Franssen did not tell
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NO. 70128-2-1/4
Graham about the August 12 incident or Currier's complaint, which Graham only
learned of "much later."3
On August 14, 2008, Sleeth and Franssen called Currier into a meeting
room and told him they would no longer be using his services—that "the reasons
were for his customer service issues that we had with him. 	Us—customer being
Northland Services, Patrick and I."4 	They also told him that they had talked with
McQuade and the drivers and that "they had decided that the joke was funny."
After the termination of his contract, Currier left his truck in NSI's freight
yard. 	When Sleeth walked by Currier's truck, he noticed several bald tires and
expired license tags. 	He took photos of the truck.
In 2009, Currier filed a complaint with the Seattle Office of Civil Rights,
which conducted an investigation. 	In 2011, Currier commenced suit against NSI
for retaliation under the WLAD, RCW 49.60.210 and .030.
NSI moved for summary judgment, arguing that "the Washington 	Law
Against Discrimination (WLAD) simply does not apply to alleged discrimination
solely between two independent contractors, therefore there can be no retaliation
as a matter of law and plaintiffs' case should be dismissed." 	The court denied
NSI's motion, 	and 	a 	bench trial followed. 	On 	February 21, 	2013, 	the court
entered findings of fact and conclusions of law that held NSI liable for retaliation
3 Graham testified on cross-examination that if Franssen and Sleeth had
told him about the incident and said, "[A]nd because of that, we've had enough of
Currier and we want to fire him," Graham would not have advised termination
because "the issue is not Currier, it's Billy Howell."
4 This also terminated the contract and any relationship between NSI and
Currier, dba American Container Express Inc..
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 70128-2-1/5
within the meaning of RCW 49.60.210. 	The court awarded Currier economic loss
damages of $301,604.00, noneconomic damages of $25,000.00, attorney fees of
$265,500.00, and costs of $8,864.69.
NSI appeals.5
STANDARD OF REVIEW
This court reviews a trial court's findings and conclusions to determine if
substantial evidence supports them and 	if those findings support the court's
conclusions of law.6 	Substantial evidence is evidence sufficient to persuade a
fair-minded, rational person of the truth of the matter asserted.7 	The trial court is
in a better position to make credibility determinations, and if substantial evidence
exists, this court will 	not substitute its judgment for that of the trial court on
appeal.8
5 Though NSI's notice of appeal to this court lists five orders, NSI only
assigns error to and argues four: 	the court's denial of NSI's motion for summary
judgment, 	judgment, 	findings 	and 	conclusions 	on 	liability, 	and 	findings 	and
conclusions on damages. 	NSI appears to have abandoned its appeal of the
court's 	order denying 	NSI's 	motions to 	dismiss 	Currier's first 	amended 	and
original complaints, and we decline to review it. 	An issue not briefed is deemed
waived. 	Kadoranian v. Bellinaham Police Dep't, 119 Wn.2d 178, 191, 829 P.2d
1061 (1992). 	And because we conclude that Currier established a prima facie
case of retaliation, we do not address NSI's appeal of the trial court's denial of
summary judgment.
6 State v. Ross, 106 Wn. App. 876, 880, 26 P.3d 298 (2001).
7 State v. Lew, 156 Wn.2d 709, 733, 132 P.3d 1076 (2006).
s Fisher Props.. Inc. v. Arden-Mavfair. Inc., 115 Wn.2d 364, 369-70, 798
P.2d 799 (1990).
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 70128-2-1/6
ANALYSIS
RCW 49.60.030 and .210
The Washington 	Supreme 	Court 	has 	repeatedly said 	that the WLAD
expresses a "'public policy of the highest priority.'"9 	The legislature enacted the
WLAD to eliminate and prevent discrimination in Washington.10 	The legislature
has directed that the provisions of the WLAD "shall be construed liberally for the
accomplishment of the purposes thereof."11
RCW 49.60.030 is entitled "Freedom from discrimination—Declaration of
civil rights" and states in relevant part,
(1) The right to be free from discrimination because of race, creed,
color, national origin, sex, honorably discharged veteran or military
status, sexual orientation, or the presence of any sensory, mental,
or physical disability or the use of a trained dog guide or service
animal by a person with a disability 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.
The WLAD also extends broad protections to "any person" engaging in
statutorily protected activity from 	retaliation by an employer or "other person."
RCW 49.60.210(1) provides,
(1) It is an unfair practice for any employer, employment agency,
labor 	union, 	or other person 	to 	discharge, 	expel, 	or otherwise
discriminate against any person because he or she has opposed
any practices forbidden by this chapter, or because he or she has
9 Int'l Union of Operating Enq'rs, AFL-CIO. Local 286 v. Port of Seattle.
176 Wn.2d 712, 722, 295 P.3d 736 (2013) (internal quotation marks omitted)
(quoting Antonius v. King County, 153 Wn.2d 256, 267-68, 103 P.3d 729 (2004)).
10 RCW 49.60.010.
11 RCW 49.60.020.
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NO. 70128-2-1/7
filed a charge, testified, or assisted in any proceeding under this
chapter.
To establish a prima facie case of retaliation under RCW 49.60.210(1), a
plaintiff must show that (1) he or she engaged in statutorily protected activity, (2)
he or she suffered an adverse employment action, and (3) there was a causal
link between his or her activity and the other person's adverse action.12 	The first
element 	describes opposition to "any practices forbidden by" 	RCW 49.60.13
When 	a 	person 	reasonably 	believes 	he 	or 	she 	is 	opposing 	discriminatory
practices, RCW 49.60.210(1) protects that person whether or not the practice is
actually discriminatory.14 	A plaintiff proves causation by showing that retaliation
was 	a substantial factor motivating the adverse employment action.15 	If the
plaintiff establishes a prima facie case, then the defendant may rebut the claim
by presenting evidence of a legitimate nondiscriminatory reason for the adverse
action.16 	This shifts the burden back to the plaintiff to prove that the employer's
reason is pretextual.17 	The trier of fact must then "choose between inferences
12 Estevez v. Faculty Club of the Univ. of Wash., 129 Wn. App. 774, 797,
120 P.3d 579 (2005).
13 Coville v. Cobarc Servs., Inc., 73 Wn. App. 433, 440, 869 P.2d 1103
(1994).
14 Ellis v. City of Seattle, 142 Wn.2d 450, 460-61, 13 P.3d 1065 (2000);
Graves v. Dep't of Game, 76 Wn. App. 705, 712, 887 P.2d 424 (1994) (citing
Gifford 	v. Atchison, Topeka & Santa 	Fe Ry., 685 	F.2d 	1149, 	1157 (9th 	Cir.
1982)).
15 Allison v. Hous.Auth., 118 Wn.2d 79, 96, 821 P.2d 34 (1991).
16 Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 70, 821 P.2d
18 (1991); Estevez, 129 Wn. App. at 797-98; Kahn v. Salerno, 90 Wn. App. 110,
129 n.5, 951 P.2d 321 (1998).
17 Wilmot, 118Wn.2d at 70; Estevez, 129 Wn. App. at 798; Kahn, 90 Wn.
App. at 129 n.5.
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NO. 70128-2-1/8
when 	the 	record 	contains 	reasonable 	but 	competing 	inferences 	of 	both
discriminatory and nondiscriminatory actions."18
Currier's Prima Facie Case for Retaliation
Statutorily Protected Activity
NSI contends that Currier may not bring this action for two reasons: 	(1) as
an independent contractor, he is not an "employee" within the meaning of the
statute and (2) because he did not oppose a specific employment practice of his
employer, he did not engage in statutorily protected activity. 	Therefore, Currier
cannot assert a claim for retaliation under RCW 49.60.210(1), and the trial court
erred in denying NSI's motion for summary judgment.
To 	show 	that 	chapter 49.60 	RCW does 	not 	protect 	an 	independent
contractor, 	NSI 	notes 	that 	WAC 	162-16-230, 	a 	rule 	promulgated 	by 	the
Washington Human Rights Commission, excludes independent contractors from
the protections of RCW 49.60.180.19 	This rule, 	however, provides only that
independent contractors may not enforce the civil 	right guaranteed 	in 	RCW
49.60.030(1) by actions of the Washington Human Rights Commission. 	It does
not prevent independent contractors from 	enforcing the 	broad protections of
18 Burchfiel v. Boeing Corp., 149 Wn. App. 468, 483, 205 P.3d 145 (2009)
(citing Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 186, 23 P.3d 440 (2001),
overruled on other grounds by McClartv v. Totem Elec, 157 Wn.2d 214, 137
P.3d 844 (2006)).
19 "Purpose 	of section. 	RCW 49.60.180 	defines 	unfair practices 	in
employment. 	A person who works or seeks work as an independent contractor,
rather than as an employee, is not entitled to the protections of RCW 49.60.180."
WAC 162-16-230(1).
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NO. 70128-2-1/9
RCW 49.60.030(1) by private lawsuit.20 And in Marouis v. City of Spokane,21 the
Washington 	Supreme Court 	held 	that "under the broad 	protections of RCW
49.60.030, an independent contractor may bring an action for discrimination in
the making or performance of contract for personal services where the alleged
discrimination is based on sex, 	race, creed, color, national origin or disability."
The broad language of RCW 49.60.210(1) likewise supports the conclusion that
the 	WLAD 	does 	not 	limit 	claims 	to 	those 	brought 	by 	employees 	against
employers.22 	We hold that RCW 49.60.030 and .210(1) protect Currier as an
independent contractor.
NSI next argues that because the racially derogatory statement came from
Howell, 	an independent contractor, 	it cannot be imputed to NSI. 	Therefore
Currier did not oppose a specific employment practice of NSI, and WLAD does
not protect his objection to the statement.
NSI relies on certain federal cases including Silver v. KCA. Inc.,23 in which
the Ninth Circuit held that a plaintiff could not maintain a retaliation claim under
Title VII of the Civil Rights Act of 196424 because she was opposing a racially
20 Rights of independent contractors. 	While an independent
contractor does not have the protection 	of RCW 49.60.180, the
contractor is protected by RCW 49.60.030(1). 	The general civil
right defined in RCW 49.60.030(1) is enforceable by private lawsuit
in 	court 	under 	RCW 	49.60.030(2) 	but 	not 	by 	actions 	of 	the
Washington state human rights commission.
WAC 162-16-230(2).
21 130 Wn.2d 97, 100-01,112-13, 922 P.2d 43 (1996); see also Galbraith
v. TAPCO Credit Union, 88 Wn. App. 939, 949-50, 946 P.2d 1242 (1997).
22 Galbraith, 88 Wn. App. at 951.
23 586 F.2d 138, 140-41 (9th Cir.1978).
24 42 U.S.C. § 200e-3(a).
 	 	 	 	 	 	 	 	 	 	 	 	 	

NO. 70128-2-1/10
discriminatory act not of her employer but of a co-worker. 	That court held, "The
opposition must be directed at an unlawful employment practice of an employer,
not an act of discrimination by a private individual."25
Since the Ninth Circuit decided Silver in 1978, however, it has clarified that
a plaintiff need not prove that the employment practice at issue was in fact
unlawful but must show only a "reasonable belief that the employment practice
he or she protested was prohibited under Title VII.26 	Other Ninth Circuit cases
have held 	that an employee's complaints about the treatment of others "is
considered a protected activity, even if the employee is not a member of the
class that he claims suffered from discrimination, and even if the discrimination
he complained about was not legally cognizable."27 	The reasonableness of a
plaintiff's 	belief 	is "an 	objective 	standard—one 	that makes 	due allowance,
moreover, for the limited knowledge possessed by most Title VII plaintiffs about
the factual and legal bases of their claims."28 	Washington cases have likewise
25 	Silver, 	586 	F.2d 	at 	141; 	see 	also 	Little 	v. 	United 	Techs.. 	Carrier
Transicold Div., 103 F.3d 956, 959-60 (11th Cir. 1997) ("Based on the facts of
this case, we conclude that Wilmot's racially offensive comment alone is not
attributable to Carrier and, accordingly, Little's opposition to the remark did not
constitute opposition to an unlawful employment practice.").
26 Trent v. Valley Elec. Ass'n, 41 F.3d 524, 526 (9th Cir. 1994) (concluding
that plaintiff's reasonable belief that it was unlawful for her to be subjected to a
series of sexually offensive remarks at a seminar her employer required her to
attend 	would 	support a finding 	that she engaged in 	"protected 	activity" for
purposes of a prima facie case of retaliatory discharge).
27 Rav v Henderson, 217 F.3d 1234, 1240 n.3 (9th Cir. 2000); see also
Movo v. Gomez, 40 F.3d 982, 985 (9th Cir. 1994) (finding black prison guard's
belief that inmates were entitled to Title VII protection reasonable).
28 Movo, 40 F.3d at 985. 	The Movo court also noted that "it has been long
established that Title VII, as remedial legislation, is construed broadly." 	40 F.3d
at 985.
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NO. 70128-2-1/11
held 	that 	a 	plaintiff 	need 	not 	prove 	the 	conduct 	opposed 	was 	in 	fact
discriminatory but need 	show only that he or she reasonably believed it was
discriminatory.29
RCW 	49.60.030(1 )(a) 	guarantees 	"[t]he 	right 	to 	obtain 	and 	hold
employment without discrimination." The trial court found that Currier reasonably
believed 	that 	a 	white 	driver telling a 	Latino driver, 	on 	the 	job, 	that "f**ing
Mexicans are good at crossing borders" was a discriminatory practice and that he
opposed this practice by reporting it to an NSI employee. 	Substantial evidence
supports 	the 	trial 	court's 	findings, 	and 	these 	findings 	support 	the 	court's
conclusion that Currier was engaging in statutorily protected conduct.
Causal Link
The final element of a prima facie case of retaliation requires proof of a
causal link between the opposition and 	the 	adverse employment action. 	To
prove a causal link between his opposition and NSI's termination of his contract,
Currier must provide evidence that his complaints about Howell's remarks were a
"substantial factor" motivating NSI's decision.30 Thus, retaliation need not be the
main reason behind the discharge decision but instead need only be the reason
which "tips the scales" toward termination.31
29 Estevez, 129 Wn. App. at 798; Kahn, 90 Wn. App. at 130; Graves, 76
Wn. App. at 712 (citing Gifford, 685 F.2d at 1157).
30 Allison, 118 Wn.2d at 96; Estevez, 129 Wn. App. at 800.
31 Wilmot, 118Wn.2dat72.
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NO. 70128-2-1/12
"'Because employers rarely will reveal they are motivated by retaliation,
plaintiffs 	ordinarily 	must 	resort 	to 	circumstantial 	evidence 	to 	demonstrate
retaliatory purpose.'"32 	Proximity in time between the protected activity and the
discharge, as well as satisfactory work performance and evaluations before the
discharge, 	are 	both factors 	suggesting 	retaliation.33 	And 	if 	an 	employee
establishes that he or she participated in statutorily protected opposition activity,
the employer knew about the opposition activity, and 	the employee was then
discharged, 	a 	rebuttable 	presumption 	of 	retaliation 	arises 	that 	precludes
summary dismissal of the case.34
NSI 	maintains 	that 	it terminated 	Currier's 	contract 	because 	of 	poor
performance 	and 	disruptive 	behavior. 	According 	to 	Sleeth 	and 	Franssen,
Currier's 	performance declined 	in 2008. 	At trial, they testified 	that 	Currier
performed more slowly than other drivers, avoided work, and instigated conflicts
with other drivers. 	They claimed that customers 	complained about Currier.
According to Sleeth, he and Franssen met with Currier soon after his quarrel with
Howell to "put him on notice, just tell him that we have some major issues with
his overall demeanor, the way he treats the other drivers, the way he performs
his job, his efficiency issues, his unpredictability. 	He seemed to anger very easily
over very small things." 	Currier denied that this meeting took place and denied
32 Estevez, 129 Wn. App. at 799 (quoting Vasguez v. State, 94 Wn. App.
976, 985, 974 P.2d 348 (1999)).
33 Wilmot, 118 Wn.2d at 69; Estevez, 129 Wn. App. at 799; Vasguez, 94
Wn. App. at 985, Kahn, 90 Wn. App. at 130-31.
34 Estevez, 129 Wn. App. at 799; Vasguez, 94 Wn. App. at 985; Kahn, 90
Wn. App. at 131; Graves, 76 Wn. App. at 712.
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NO. 70128-2-1/13
that Sleeth and Franssen ever spoke to him about agitating other drivers, 	his
temper, customer complaints, or slow performance.
NSI 	produced 	no 	documentation 	of 	complaints 	about 	Currier's
performance. 	No driver or customer who reportedly complained to Sleeth or
Franssen testified at trial. 	NSI called one other driver to testify at trial. 	When
questioned about Currier's work ethic, the driver testified that he believed Currier
was doing "as good a job as me." The trial court noted that even Currier's status
as an independent contractor does not explain the "total absence of any writings
about the numerous problems to which the dispatchers testified."
The trial court found 	inconsistencies in the nonretaliatory bases Sleeth
and Franssen provided for their termination of Currier's contract, as well as the
timing of the termination decision. At trial, Sleeth and Franssen testified that they
had made the decision to fire Currier at least a week before Currier's complaint
and waited for their meeting with Larry Graham only to confirm their decision. 	In
earlier answers to interrogatories, 	however, 	they made no mention 	of having
already 	made this decision. 	Larry Graham testified at trial that Sleeth 	and
Franssen cited Currier's slow performance and safety and compliance issues
with his truck. 	Graham did not recall anything about Currier agitating other
drivers or that there had been customer complaints. 	While Sleeth and Franssen
testified that customer complaints were a reason for Currier's termination, they
did not cite this reason in earlier interrogatory answers.
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NO. 70128-2-1/14
There were also inconsistencies among the accounts of McQuade, Sleeth,
and Franssen about the meetings that occurred after Currier complained about
Howell's racist remarks. 	McQuade testified that she reported Currier's complaint
to Sleeth that day and to Franssen that day or the next. 	She testified that she,
Sleeth, and 	possibly Franssen 	met with 	Howell 	and 	Martinez the day after
Currier's complaint. 	Sleeth and Franssen, however, testified they did not meet
with the 	drivers. 	Sleeth 	testified 	he 	did 	not 	speak to 	McQuade 	about the
complaint and did not know about it before terminating Currier.
"Proof that the defendant's explanation is unworthy of credence is simply
one form of circumstantial evidence that is probative of intentional discrimination,
and 	it 	may be quite persuasive."35 	Here, 	the 	trial 	court found 	a 	lack 	of
documentation for NSI's purported 	nondiscriminatory reasons for terminating
Currier's 	contract. 	The 	court 	also 	found 	inconsistencies 	in 	Sleeth's 	and
Franssen's explanations of those reasons and in their accounts of the events
surrounding 	Currier's complaint. 	The court found 	a close 	proximity in time
between the complaint and the termination. 	The court did "not find credible the
claim that 	Plaintiff's 	[cjomplaint had 	no effect on the 	decision 	to terminate
Plaintiff's contract." 	Substantial evidence supports the court's conclusion that
Currier's complaint "tipped the scales toward termination."
35 Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147, 120 S.
Ct. 2097, 147 L. Ed. 2d 105 (2000).
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NO. 70128-2-1/15
NSI 	argues 	that the 	trial 	court's 	decision "would 	effectively 	hold 	an
employer 	liable 	for all 	discriminatory 	statements 	of all 	of its independent
contractors or sales and supply vendors that happen to be on the employer's
property."36 	But this argument begins with a faulty premise—that NSI is being
held 	liable for 	Billy 	Howell's 	racially discriminatory speech. 	This completely
misrepresents the basis for liability. 	The trial court held NSI liable for its own
retaliatory conduct against an independent contractor after he complained to NSI.
The trial court's decision does not make the law "a general civility code" beyond
the original intent of the legislature;37 it holds NSI accountable for the exact type
of retaliatory conduct the legislature sought to prevent with RCW 49.60.210(1).
We affirm the trial court's finding of liability for retaliation.
Damages and NSI's After-Acguired Evidence Defense
RCW 49.60.030(2) provides remedies for a 	prevailing 	party, including
recovery 	of actual damages, costs, and reasonable attorney fees. 	"Actual
damages are 'a remedy for full compensatory damages, excluding only nominal,
exemplary, or punitive damages,' that are 'proximately caused by the wrongful
36 The Association of Washington Business filed an amicus curiae brief in
support of this argument.
37 See Alonso v. Qwest Communications Co., 178 Wn. App. 734, 747, 315
P.3d 610 (2013), and Adams v. Able Building Supply, Inc., 114 Wn. App. 291,
297, 57 P.3d 280 (2002), for the proposition that "[t]he WLAD is not intended as a
general civility code." 	These cases are distinguishable as involving disparate
treatment or a hostile work environment, where the degree of abusive conduct by
co-workers 	is the 	disputed fact. 	The 	issue 	in 	this case 	is not 	Howell's
(undisputed) offensive behavior, which by itself would likely not support such a
claim. 	Rather, 	the 	issue 	here 	is the 	alleged 	retaliatory conduct 	of NSI 	in
response to Currier's complaint about it.
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NO. 70128-2-1/16
action, resulting directly from the violation of RCW 49.60.'"38 	A court may limit
economic 	damages 	if 	the 	employer 	shows 	evidence 	of 	the 	employee's
wrongdoing 	that it discovered 	only after the discharge.39 	Under this after-
acquired evidence rule, an award for back pay is calculated from the date of the
unlawful 	discharge 	to the 	date 	the 	employer 	discovered 	a 	lawful 	basis for
discharge.40 To establish an after-acquired evidence defense, an employer must
prove that the wrongdoing was of such severity that had the employer discovered
the misconduct earlier, it would have terminated the employee on those grounds
alone.41
NSI assigns error to the trial court's conclusion that NSI failed to prove an
after-acquired evidence defense. 	Sleeth and Franssen both testified at trial that
had they not already terminated 	Currier's contract, they would have done so
immediately upon discovering the condition of his truck. 	However, the trial court
found that "NSI would not have learned of the condition of Plaintiff's truck had
NSI not terminated 	his contract, 	because it was undisputed that NSI did 	not
perform 	regular truck inspections." 	NSI's subcontractor agreement required
contractor drivers to comply with all local, state, and federal laws and regulations,
and thus Currier arguably breached his contract. 	But NSI did not show that its
38 Blanev v. Int'l Ass'n of Machinists & Aerospace Workers. Dist. No. 160,
151 Wn.2d 203, 216, 87 P.3d 757 (2004) (citation omitted) (quoting Martini v.
Boeing Co., 137 Wn.2d 357, 368, 371, 971 P.2d 45 (1999)).
39 McKennon v. Nashville Banner Pub. Co., 513 U.S. 352, 362-63, 115 S.
Ct. 879, 130 L. Ed. 2d 852 (1995); Janson v. N. Valley Hosp., 93 Wn. App. 892,
900-01,971 P.2d67(1999).
40 Janson, 93 Wn. App. at 900.
41 Janson, 93 Wn. App. at 901 (citing McKennon, 513 U.S. at 362-63).
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NO. 70128-2-1/17
response would have been termination, especially given the lack of evidence that
NSI had any policy to ensure its contractors' compliance.
NSI's tire expert, Dave Temple, testified that Sleeth's photographs showed
"there was 	[a] violation 	of the 	Code of Federal 	Regulations." 	Temple 	also
testified, however, that he could not determine from the photographs whether the
tread on Currier's tires would 	require that the truck be placed out of service.
Currier's operation of his truck with expired 	license tabs was a civil infraction
subject to a citation. 	NSI presented no evidence that it ever terminated any
driver's contract because of equipment or licensing issues or traffic infractions.
The trial court did not find the testimony of Sleeth and Franssen credible.
This court will not disturb a damages award unless the award falls outside
the range of substantial evidence in the record, shocks the conscience of the
court, or appears to be the result of passion or prejudice.42 	And this court
strongly presumes the 	trial 	court's verdict is correct.43 	Because substantial
evidence 	supports 	the 	trial court's 	findings, 	we 	affirm 	the 	court's 	award 	of
damages, attorney fees, and costs.
Appellate Costs and Attorney Fees
Currier requests attorney fees and costs on appeal. 	Under RAP 18.1 and
RCW 49.60.030(2), the prevailing party is entitled to appellate fees and costs.44
42 Bunch v. King County Dep't of Youth Servs., 155 Wn.2d 165, 179, 116
P.3d 381 (2005); Burchfiel, 149 Wn. App. at 484.
43 Bunch, 155 Wn.2d at 179; Burchfiel, 149 Wn. App. at 484.
44 Allison, 118Wn.2dat98.
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NO. 70128-2-1/18
We award Currier appellate costs and reasonable attorney fees, subject to his
compliance with RAP 18.1(d).
CONCLUSION
Because substantial evidence supports the trial court's findings of fact
regarding 	liability 	and 	damages 	and 	those 	findings 	support 	the 	court's
conclusions of 	law, 	we 	affirm 	and 	award 	Currier 	his 	costs 	and 	reasonable
attorney fees on appeal.
rl4~0Uc^vtt
WE CONCUR:
Cfj^t&&JF_^
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