SCHINDLER, J.
James Osborne filed a lawsuit against Recreational Equipment Inc. (REI) alleging age and disability discrimination and that REI did not make reasonable accommodations in violation of the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW, and wrongful discharge in violation of public policy. The court dismissed the age and disability discrimination claims and the wrongful discharge claim on summary judgment. Following a three-week trial on failure to accommodate in violation of the WLAD, the jury returned a verdict in favor of REI. Osborne seeks reversal of the jury verdict and remand for a new trial. Osborne challenges the jury instructions and the verdict form, denial of his motion for judgment as a matter of law, summary judgment dismissal of his disability discrimination and wrongful discharge claims, and denial of a motion to compel discovery. We affirm the jury verdict, the orders on summary judgment, and the order denying the motion to compel.
James Osborne graduated from college with a degree in health care administration. Osborne has managerial experience but no formal training in information technology (IT). In May 1994, Recreational Equipment Inc. (REI) hired Osborne as a supervisor in the IT Department. Osborne later worked as the IT Systems Development Manager. In 1999, REI promoted him to IT Systems Development Director. In 2003, Osborne became the IT Business Services Director with 70 employees reporting to him.
Beginning in 1999, Osborne started cycling. Osborne was "consumed by" road cycling and "joined a group of cycling enthusiasts." Osborne would go on bike rides at lunch and traveled to Western Washington and the French Alps to go on long bike rides.
On Thursday, June 14, 2007, Osborne was riding with a group of cyclists at noon in a "racing formation."
Near the end of the ride, Osborne heard a loud metallic noise, crashed, and landed on the road. Osborne suffered a spinal cord injury.
"[T]here was an outpouring of support and compassion" from his colleagues at REI. On June 21, one week after the accident, REI Senior Vice President/Chief Financial Officer/Chief Administrative Officer Brad Johnson sent Osborne a letter promising to "extend job protection for your job through December 13, 2007" and in the meantime, pay him a full salary.
After intensive physical therapy, by August 2007, Osborne regained enough strength to walk using a cane. It was Osborne's intent to return to his position as the Director of IT Business Services. Osborne and his doctor discussed a plan that would allow him to transition to working full time by the end of February 2008.
In early November 2007, Osborne met with REI "to propose a return to work schedule." Osborne proposed returning to work part time on November 27 and by February 1, 2008 to February 29, 2008, working "up to a full-time schedule/5 days [a] week (except for [physical therapy] appointments)."
On November 7, 2007, Benefits and Human Resources Risk Manager Giselle Sampson asked Osborne's doctor to provide information to "help us understand [Osborne]'s ability to perform the essential job functions" for his position as director.
On November 14, Osborne sent an e-mail telling Johnson he could not attend the "IT forum" scheduled the next week. Osborne told Johnson "it is increasingly unlikely I will be able to return to work in December as I had very much hoped."
At the end of November, Dr. Barry Goldstein wrote a letter asking REI to postpone the plan to return to work as a director for another three months. Dr. Goldstein states Osborn had a physical setback "related to the complex interaction of spasticity and movement." But in his "professional opinion," Dr. Goldstein states Osborne "will be able to resume his job and perform it at the same level that he has done in the past" with "minor and reasonable job accommodation." REI agreed to hold the director position open for another three months.
In February 2008, Osborne met with Johnson. Osborne said he "would like to be able to return to work in his current role . . . in a part time capacity with accommodations." Osborne asked Johnson to "hold the job open until July." Johnson told Osborne REI could not agree to keep the director position vacant that long. Johnson told Osborne that as soon as he obtained "clearance from the doctor to return to work on a part time basis," REI would identify "projects and assignments that will work with his transition back to the workplace."
On March 4, 2008, Dr. Goldstein sent a letter to REI authorizing Osborne to work two to six hours a week.
Osborne met with Johnson and Sampson later that month. Osborne said it was "clear" he was not going to be able to work full time and retain his "prior position as an IT director." REI worked with Osborne and his doctors to develop a plan to "help meet his needs." According to Osborne, he and Sampson discussed working in a new "one-off position" as an exempt part-time employee in the IT Department to give him the opportunity to work his way back to full time "without time pressures or date sensitive items."
In July 2008, REI offered Osborne the exempt part-time position of IT Consultant with an annual salary of $100,000. The "Work Accommodation Plan" allowed Osborne to work remotely from his house a maximum of eight hours a week on special projects with no set deadlines.
Osborne started work on July 28. His supervisor was Information Security Director Ed Telders. Telders asked Osborne to work on an intranet project. But Osborne decided he wanted to work on a vendor management project and report to IT Department Senior Vice President Bill Baumann. Osborne met with Baumann on a monthly basis. Baumann assured Osborne that he "was under no time pressure to return to work full time." According to Osborne, "[Baumann] said if it took a year, two years or more the company was going to stand behind me and support me."
On October 15, 2008, Dr. Goldstein increased the hours Osborne could work from 8 to 14 hours each week, 10 hours at home and 4 hours at REI. In March 2009, his doctor approved increasing his work schedule to 17 hours a week. On October 20, Dr. Goldstein approved increasing his hours from 17 to 24 hours a week.
In spring 2010, Osborne expressed interest in the open full-time Intake/Release Manager position to implement the new software application program (SAP). IT SAP Director Mark McKelvey agreed to give Osborne the opportunity to work as the SAP Intake/Release Manager "in an acting role" on a part-time basis. Osborne reported to SAP Process Analyst Manager Marianne Fisher. Osborne said the "thinking at that time was that perhaps I would be able to increase my hours at a pace that would meet their increasing demands for that position to actually work full-time at 40 hours a week." Osborne said he did not "know at the time that I joined the team that I would be held accountable to strict deadlines."
In June 2010, Osborne filed a product liability lawsuit against REI and other manufacturers of the bicycle he was riding when he crashed on June 14, 2007. REI took steps to ensure Osborne's lawsuit was kept separate from his work as an REI employee.
In July, Dr. A.J. Bender informed REI that Osborne could "increase his hours at work to 28 hours per week as his energy allows." The revised Work Accommodation Plan dated August 16, 2010 states, in pertinent part:
In September, Fisher met with Osborne about missing a deadline. Fisher told Osborne "more rapid progress needs to be made" and she planned to assume some of his responsibilities. Osborne was upset. He told Fisher he "felt very strongly that . . . what she was communicating left the door open for termination," and it "seemed to [him] a sea change had occurred."
Fisher and McKelvey decided to hire a full-time SAP Intake/Release Manager and assign other SAP tasks to Osborne. Fisher discussed the new work assignments, expectations, and deadlines with Osborne.
On September 17, Human Resources Senior Vice President Michelle Clements sent a memo to Osborne addressing his request that REI agree to employ him until age 65 and his request for work assignment flexibility. The memo states REI "does not enter into employment agreements with employees" and "REI can end your employment at any time." The memo states Fisher and Human Resources had worked with Osborne to design an accommodation plan that meets his medical restrictions and the business needs of REI. The memo states, in pertinent part:
Clements met with Osborne to discuss the September 17 memo. Clements told Osborne REI does not "provide lifetime employment." Clements also told Osborne competitive market pressure required all REI employees to meet performance standards.
According to Osborne, Clements confirmed the IT work was more critical and demanding than it had been.
In response to whether there was a "risk to his role," Clements told Osborne that "there may be a time and place where REI wouldn't have a role to offer him" and "if that were the case[,] he would be subject to any layoff benefits that we would provide any employee." Clements told Osborne that "if at any time he could not perform in his role," he was to "personally reach out" to her and his supervisors "to let us know if there were things that we needed to be doing within his job scope to help him be more successful." At the end of the meeting, Clements told Osborne her "door is open any time" he had "questions or concerns." Osborne "never reached out" to Clements.
In December 2010, Osborne returned to work for Telders on the "Disaster Recovery Project." The December 13, 2010 memo from Baumann to Osborne states, in pertinent part, "Your assignments, as you and [Telders] have discussed, will be shifting from the partial duties of the SAP Release Manager in the [Center of Expertise] to now supporting the Disaster Recovery Program."
The April 25, 2011 revised Work Accommodation Plan states:
In spring 2011, Telders assigned Osborne to help Information Security Manager Carlos Melvin with the payment card industry (PCI) annual audit. The revised July 25, 2011 Work Accommodation Plan states:
After the 2011 audit, REI decided to enter into a contract with a new auditor. In 2012, Osborne worked on the request for proposal and the PCI audit.
On August 2, 2012, Osborne resolved his lawsuit against REI in mediation.
On September 24, Osborne sent an e-mail to Melvin and Telders stating the "current cadence and volume" of the PCI audit work "is exceeding my part time work capacity" and requesting assistance.
Telders met with Osborne and told him it was important to adhere to the Work Accommodation Plan. To assist Osborne, Melvin contacted the other IT Department teams and "escalated issues with those teams" to make sure they were getting the necessary documentation done quickly.
Melvin and Telders had discussed for "many years" the need for a Compliance Program Manager. In October 2012, they agreed REI needed a full-time Compliance Program Manager. On October 17, Melvin sent IT Human Resources Business Partner Kristin Bradley an e-mail describing the need for the position.
REI agreed to create the new position. Melvin prepared a job description for the Compliance Program Manager (CPM). The job description states the CPM "Specializes in the Development and Maintenance of Security Governance."
In October, Osborne purchased a house in Arizona. On November 30, Osborne sent Telders and Melvin an e-mail telling them the 2012 PCI audit was complete.
On December 12, Osborne confirmed there were "[n]o changes" to his Work Accommodation Plan that limited him to working no more than 28 hours a week.
On December 13, IT Divisional Vice President Joseph Dell'Orfano and Bradley met with Osborne. Dell'Orfano told Osborne REI had decided to create a full-time position to manage IT risk and compliance, eliminate his part-time IT Consultant position, and lay him off. Dell'Orfano and Bradley told Osborne the new full-time CPM position would include responsibility for the PCI audit work. Bradley told Osborne he was eligible for rehire. Bradley said she examined the IT positions that were currently open but he was not qualified for any of the full-time positions. Bradley told Osborne he would remain on the payroll until January 2, 2013 so he would be eligible for the year-end bonus and could continue to receive retirement benefits.
After he was laid off, Osborne lived in Arizona and did not apply for any open positions at REI.
During the first quarter of 2013, REI eliminated approximately 100 positions. On March 24, The Seattle Times published an article reporting REI had "laid off a `limited number' of employees at its Kent headquarters and in stores throughout the country." On March 27, Osborne sent an e-mail to The Seattle Times stating, "REI eliminated over 100 positions . . . over several months . . . due to cost cutting."
On May 31, 2013, Osborne filed a lawsuit against REI. Osborne alleged REI terminated him because of his age and disability; REI failed to engage in efforts to make a reasonable accommodations in violation of the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW; and wrongful discharge in violation of public policy.
REI filed an answer and affirmative defenses. REI admitted that in July 2008, it created the exempt part-time IT Consultant position for Osborne. REI admitted that in December 2012, it eliminated the position and Osborne was laid off effective January 2, 2013. REI denied terminating Osborne because of his age and disability or violating public policy. REI denied failing to engage in an interactive process and accommodate Osborne.
REI asserted several affirmative defenses including "REI's actions were taken in good faith, full compliance with the law and were made in its best business judgment." REI alleged the claimed damages "must be reduced by the doctrine of after acquired evidence."
After engaging in discovery, REI filed a motion for summary judgment dismissal of the lawsuit. Osborne filed a cross motion for summary judgment on failure to accommodate and dismissal of the after acquired evidence defense.
The court granted the motion for summary judgment dismissal of the disparate impact age and disability discrimination claims and wrongful discharge in violation of public policy. The court denied REI's motion for summary judgment dismissal of the failure to accommodate claim. The court denied Osborne's motion for judgment on failure to accommodate and his motion to dismiss the after acquired evidence defense. Before trial, REI agreed to bifurcate the after acquired evidence defense.
A number of witnesses testified during the three-week jury trial on the failure to accommodate claim including Osborne, his health care providers, Telders, Melvin, Bradley, and Clements. The court admitted more than 300 exhibits into evidence. The parties stipulated Osborne was involved in a bicycle crash on June 14, 2007 and his injuries and impairment was the basis of the requirement for accommodation.
Osborne argued REI violated the WLAD by failing to engage in the mandatory interactive process and reasonable accommodation before terminating him in December 2012.
Osborne testified that in 2008, REI created the new exempt part-time IT Consultant position "to provide me the time necessary to get back to full-time, and get back to a director level position." Osborne testified he "felt humiliated walking around REI's campus as IT consultant."
Osborne testified it was his idea to work on the SAP project in 2010. He wanted to "try it on an acting basis, and perhaps build [him]self up into doing the full-time role." But as the SAP project approached implementation, Osborne said the demands of the job required REI to hire someone full time.
Osborne testified that in 2011 and 2012, he worked on the PCI audit. In July 2012, Osborne told his psychologist, Dr. Diane Adams, that he was dissatisfied with his job and thinking about whether "to leave and find a new environment or work in his existing environment."
Osborne sold his house on Mercer Island and in October 2012, he bought a house in Arizona. Osborne said he planned to talk to Telders about telecommuting from Arizona after Telders returned from medical leave in December 2012.
Osborne admitted he was not qualified for the CPM position. Osborne testified he knew that REI had a program that would pay for IT certifications but he "never did pursue any of those certifications." Osborne testified the new CPM position was full time and that in December 2012, he could work no more than 28 hours a week. Osborne admitted Bradley told him he was eligible for rehire and could apply for open positions at REI, and REI offered to provide "four months of out of placement training" and delayed the effective date of his termination until after the first of the year so he could be eligible for a bonus and get his retirement contribution. Osborne testified that Bradley told him she had reviewed available positions and "none of them fit [his] qualifications." Osborne testified he "wanted to check" the available positions Bradley referred to and the day after he was laid off, he printed a list of all job openings at REI. Osborne testified that "every one of these jobs" was "listed as a full-time position." Osborne testified there were other projects he could have worked on that REI did not discuss or pursue such as vendor management, disaster recovery, security assessment, and business planning.
Osborne testified he applied for jobs in 2013 but did not apply to REI. Osborne said that after REI laid him off, "everything[] changed" and he "wasn't feeling any motivation" to increase his hours or "go reapply at REI." In response to the jury question, "Why haven't you applied for a position with REI." Osborne testified:
Telders testified that he worked for REI from 2008 until he was laid off in early 2013. Telders said he was Osborne's supervisor in 2011 and 2012 and he "created some projects" for Osborne to do: working on disaster recovery and later, helping Melvin with the PCI audit. Telders testified Osborne told him that he "didn't feel qualified to work on some of the disaster recovery, and asked to focus on the PCI audit."
Telders testified that in October 2012, it was clear there was a need for a full-time CPM position. Telders said Osborne was not qualified for the CPM position.
Telders testified that Baumann made the decision to eliminate the IT Consultant position because the "role was no longer needed." Telders testified he checked with his team and the other IT directors to see "whether there were any other roles that the IT consultant might perform" but there were no other projects and no open positions Osborne could fill. Work on disaster recovery was "put on hold" and was not funded in 2012. Telders said he did not participate in the layoff meeting with Osborne because he had just returned from medical leave.
REI Database Manager Jodi Shincke testified that after she was hired in August 2012, she spent time working on vendor management and talked to Osborne about the work he had done. But because of the layoffs in 2013, vendor management was "not going to be priority for REI at this point." Shincke said there "wouldn't have been an actual [vendor management] position . . . around this . . . time just due to our budget constraints."
Bradley testified that Baumann and Telders did not tell her "to terminate" Osborne. The decision was "considered . . . a layoff" because REI was "moving forward with eliminating [Osborne's] position" but he was eligible for rehire.
Bradley testified she verified the Work Accommodation Plan with Osborne the day before he was laid off because Osborne would be on "rehire status" and "[i]f he was going to apply for other jobs within REI," she "wanted to make sure that that accomodation [sic] plan was updated."
Bradley said that before the meeting with Osborne on December 13, she reviewed available job openings at REI but he was "not eligible to fulfill those roles because he can only work 28 hours a week." Bradley said REI "rarely give[s] advance notice" of a layoff. Bradley testified that the responsibility to engage in "the interactive dialog" is "a two way street. It's a responsibility for [Human Resources], and the responsibility for the employee as well."
Clements testified that a layoff decision is "not performance related, it's not accomodation [sic] related. . . . It's eliminating that position." Clements testified the decision to lay off Osborne was not part of the larger layoff that took place in the first quarter of 2013. Clements said REI would not have allowed unpaid leave status for Osborne because his position was eliminated, and she "did not know what work, if any, we would have available come first quarter" of 2013.
Clements testified that "if an employee is disabled from the job, according to the doctor, they must be placed in another open position for which they are qualified." Clements said when Osborne was laid off, the only available positions were full-time positions.
At the conclusion of the evidence, Osborne filed a motion for entry of a directed verdict on the failure to accommodate claim against REI. Osborne also argued he was entitled to entry of a directed verdict on the defense of undue hardship. The court denied the motion for a directed verdict. The jury returned a verdict in favor of REI.
After the jury verdict, Osborne filed a CR 50 motion for judgment as a matter of law. Osborne argued the undisputed evidence established REI "per se failed to accommodate his disability" by eliminating his position "without engaging in an interactive process." Osborne argued the court erred in refusing to enter a directed verdict on undue hardship. The court denied the motion.
Osborne seeks reversal of the jury verdict and remand for a new trial. Osborne contends the jury instructions misstated the law, the verdict form was misleading, the court abused its discretion in refusing to give his proposed jury instructions, and the court erred in denying his motion for judgment as a matter of law. Osborne also argues the court erred in dismissing his disability discrimination and wrongful discharge claims on summary judgment and the court abused its discretion in denying his motion to compel.
Osborne argues the jury instructions misstate the law and the court erred in refusing to give his proposed instructions on the requirement to engage in an interactive process and the undue hardship defense.
Whether to give a jury instruction is within the discretion of the trial court and reviewed for abuse of discretion.
We review legal errors in jury instructions de novo.
Under the WLAD, it is unlawful for an employer to discriminate against any person in the terms or conditions of employment or to discharge any employee because of a person's sensory, mental, or physical disability. RCW 49.60.180(3), (2);
To establish a prima facie case for failure to accommodate, the employee must show (1) he had a sensory, mental, or physical abnormality that substantially limited his ability to perform the job; (2) he was qualified to perform the essential functions of the job; (3) he gave the employer notice of the abnormality and its accompanying limitations; and (4) upon notice, the employer failed to affirmatively adopt measures that were available to the employer and medically necessary to accommodate the disability.
Once an employer becomes aware of the need for accommodation, the employer has an obligation to engage in an interactive process with the employee to identify and implement appropriate reasonable accommodations. RCW 49.60.040(7)(d);
The interactive process requires a good faith exchange of information between the employer and the employee.
The employer's obligation to engage in the interactive process extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing and further accommodation is needed.
The employer has an obligation to affirmatively take steps to help the disabled employee continue working at the existing position or attempt to find a position compatible with the limitations.
Washington courts, like federal courts, do not recognize a freestanding interactive process claim absent a possibility of accommodation as a basis of a disability discrimination claim.
Here, the court used the
Jury instruction 5 describes the burden of proof to establish a claim for failure to accommodate as follows:
Jury instruction 6 defines "reasonable accommodation:"
Jury instruction 8 defines "essential function" of a job:
The court also instructed the jury on the well-established law that an employer is not required to create a new position or eliminate or change the essential function of a job as an accommodation to a disabled employee.
Osborne contends jury instruction 7 misstates the law. The court crafted jury instruction 7. Jury instruction 7 addresses the duty of an employer to accommodate a disabled employee when the position is eliminated. Jury instruction 7 states:
Below, Osborne objected to the last sentence of the jury instruction that states, "An employer is not required to give a disabled person priority over those who are not disabled when filling an open position or making a reassignment." REI objected to the description of the affirmative steps an employer must take when the position it created as an accommodation is eliminated.
Even if error, Osborne cannot show prejudice. First, the undisputed testimony established Osborne did not apply for an open position and REI did not reassign him. And, as REI points out, the remainder of the jury instruction that describes REI's duty to accommodate favored Osborne.
Osborne also contends the court erred by not instructing the jury on "interactive dialogue." Jury instruction 7 states, in pertinent part:
Although jury instruction 7 does not use the phrase "interactive dialogue," as Osborne pointed out in closing argument, the instruction clearly addresses REI's obligation to engage in an interactive process.
Because the record shows the instructions allowed Osborne to argue his theory of the case, he cannot show prejudice. We reject the argument that the court abused its discretion by refusing to give Osborne's proposed instructions. The proposed instructions were repetitious, argumentative, and erroneous.
Osborne also argues the verdict form was misleading. The verdict form asked the jury whether Osborne "proved by a preponderance of the evidence that REI failed to reasonably accommodate him." Osborne claims the verdict form should have focused on only "the time period between October and December 2012." Because Osborne did not make this argument below, we need not consider it for the first time on appeal. RAP 2.5(a). In any event, Osborne cannot show prejudice.
In opening statement and again in closing argument, Osborne repeatedly focused on the time period between October 2012 and December 2012. For example, in opening statement, Osborne argued, in pertinent part:
In closing argument, Osborne argued, in pertinent part:
Osborne asserts the court erred by refusing to instruct the jury on the undue hardship defense and denying his motion for a directed verdict and judgment as a matter of law on the defense of undue hardship.
We review the denial of a motion for judgment as a matter of law de novo.
Under the WLAD, the employer must provide reasonable accommodation unless the employer can prove the accommodation would impose an undue hardship to the employer's business. WAC 162-22-075;
REI did not assert an undue hardship defense and did not introduce evidence or argue at trial that an accommodation would have been an undue hardship.
Pretrial, Osborne argued the court should exclude any evidence of undue hardship because REI did not plead undue hardship as an affirmative defense. The court granted Osborne's motion to exclude evidence relating to an undue hardship defense.
Osborne relies on
In
Osborne appeals summary judgment dismissal of his disability discrimination and wrongful discharge in violation of public policy claims. We review summary judgment de novo, engaging in the same inquiry as the trial court.
A defendant moving for summary judgment has the initial burden to show the absence of genuine issues of material fact.
As a preliminary matter, we note that on appeal, Osborne repeatedly cites to trial testimony and trial exhibits to argue the court erred in dismissing the claims of disability discrimination and wrongful discharge on summary judgment. We consider only evidence that was before the court on summary judgment and disregard the citations to evidence presented at trial. RAP 9.12;
The
Under
Osborne presented no evidence that the decision to eliminate his exempt part-time IT Consultant position and lay him off in December 2012 was because of his disability. Even if Osborne could establish a prima facie case, he presented no evidence that the legitimate nondiscriminatory reasons for eliminating the exempt part-time IT Consultant position was pretextual.
In opposition to summary judgment, Osborne argued conflicting testimony about the reasons for eliminating his position and who made the decision showed pretext.
The record on summary judgment does not support his argument. The undisputed deposition testimony of his direct supervisor Telders shows that in fall 2012, Telders and Melvin received approval from IT Department Senior Vice President Baumann to create the CPM position. Telders and Melvin knew the CPM position would include responsibility for the PCI audit work that Osborne had done in 2011 and 2012. Telders testified that as the chief information officer, Baumann had to agree to create the CPM position and eliminate Osborne's part-time IT Consultant position. The undisputed record establishes there was a consistent explanation for why REI created the full-time CPM position and eliminated the part-time IT Consultant position. The deposition testimony of Clements that Baumann and Telders did not make the decision does not create a material issue of fact. There is no dispute that Clements was not directly involved in the decision to create the CPM position or eliminate the IT Consultant position.
Osborne also alleged REI "terminated [him] as retaliation for . . . exercising his right to bring a product liability suit." Terminating an employee for exercising a legal right supports a cause of action for wrongful discharge in violation of public policy.
To establish a claim for retaliatory discharge, Osborne must show (1) he filed a lawsuit against REI, (2) he was terminated, and (3) there was a causal connection between the exercise of his legal right to file the lawsuit and termination.
To establish a prima facie case, the employee "need not attempt to prove the employer's sole motivation was retaliation."
Because motive is often difficult to prove, a plaintiff can rely on circumstantial evidence.
On summary judgment, REI conceded Osborne had a legal right to file a product liability lawsuit against REI. REI asserted "a legitimate nonpretextual nonretaliatory reason for the discharge" and argued there was no evidence that the nonretaliatory reason to eliminate the position and lay off Osborne was pretextual.
In opposition to summary judgment, Osborne reiterated the same reasons he cited to argue pretext for age and disability discrimination. In specific, that inconsistent explanations for eliminating his position and who made the decision showed pretext. But as previously discussed, the record does not support his argument.
Osborne also argued the timing of his termination "serves to establish causation" because decision makers "were aware of Mr. Osborne's lawsuit as well as its settlement." But the undisputed and admissible evidence showed REI purposefully kept Osborne's product liability lawsuit separate from their employment of him. REI Claims and Litigation Manager Christine St. Peter testified, in pertinent part:
The evidence showed Melvin, Telders, and Baumann were not aware of his product liability lawsuit or settlement. And in his deposition, Osborne testified that he did not know whether Melvin, Telders, or Baumann were aware of his product liability lawsuit or settlement.
There is no admissible evidence that the decision of Telders and Melvin to create the CPM position and the decision of Baumann to eliminate the IT Consultant position was related to the lawsuit Osborne filed against REI in June 2010 or the resolution of the lawsuit in August 2012. The hearsay statement of an REI employee about a comment made during a meeting in 2014 does not establish Osborne's supervisors were aware of the lawsuit and settlement when he was laid off two years earlier or create a material issue of fact. REI employee Karen Halvorsen states, in pertinent part:
Osborne contends the court erred in denying his motion to compel. REI argues that it promptly produced the late-disclosed documents, "most of which were duplicates of documents that had already been produced from other sources, and none of which proved material to the litigation." We review denial of a discovery request for an abuse of discretion.
After the discovery cut off, REI produced e-mails from the encrypted hard drive of Telders's computer. Osborne filed a motion to compel arguing the court should appoint a special master. Osborne asserted the documents "had not been seen before" and "revealed the existence of other relevant materials not yet produced." REI argued it produced the e-mails "as soon as its vendor was able to restore them." REI argued the documents "had already been produced from other sources or had been made available to Osborne when he reviewed a complete set of all his REI emails on two separate occasions." The court did not abuse its discretion in denying the motion to compel.
We affirm the jury verdict, the order on summary judgment, and the order denying the motion to compel.
Dwyer, J., and Cox, J., concurs.