Opinion
No. 50649-8-I, Consolidated with No. 50746-0-I.
Filed: March 8, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 97-2-11669-4. Judgment or order under review. Date filed: 05/24/2002. Judge signing: Hon. John Erlick.
Counsel for Appellant(s), Frederick E. Wollett, Seattle City Attorneys Office, 600 4th Ave Fl 4, PO Box 94769, Seattle, WA 98124-4769.
Counsel for Respondent(s), Randy Perry Baker, Sheridan Baker PS, 705 2nd Ave Ste 1200, Seattle, WA 98104-1798.
John Patrick Sheridan, Sheridan Baker PS, 705 Second Ave., Suite 1200, Seattle, WA 98104-1798.
Once an issue has gone to a jury, even on disputed evidence, this court will not overturn a verdict unless there is a complete dearth of evidence to support the jury's decision. There is ample evidence in this case. We affirm.
FACTS
Chuong Van Pham and Heliodoro Lara have been employed by the City of Seattle, Department of City Light (City Light) since 1975 and 1980 respectively. They were employed as cable splicer helpers from the mid-1980s through 1996 when they transferred to other jobs at City Light. In 1991, City Light reached an agreement with bargaining representatives to phase out the helper classification over a five-year period under a Line and Cable Splicer Helper Transition Program. Cable splicer helpers were notified that their positions were to be abrogated and that City Light would implement a transition program to retrain those currently in the position of helper over a period of years. Both Lara and Pham enrolled in the transition program to become journey level cable splicers. They fulfilled the requirements to transition. Lara completed the required course work and took and passed the cable splicer apprentice exam in 1994, 1995, and 1996. Pham passed the exam in 1994 and 1996. The results placed them onto a final hiring eligibility list for those years.
But, neither Lara nor Pham was hired into the apprenticeship program. Thereafter, they complained to City Light management that they were improperly denied selection due to discrimination based on race or national origin. An internal review found there was no discrimination.
Pham and Lara brought an employment discrimination action against City Light. The suit alleged employment discrimination in violation of chapter 49.60 RCW, Washington's Law Against Discrimination (WLAD); the Age Discrimination in Employment Act, 29 U.S.C. § 623 (a)(1), 42 U.S.C. § 1981; Title VII of the Civil Rights Act, 42 U.S.C. § 2000e et seq.; and claims for retaliation and infliction of emotional distress.
City Light had the case removed to federal court and was granted a summary judgment on the federal claims. The state claims were remanded to King County Superior Court. City Light's motion for summary judgment was granted in part and denied in part. This court then granted City Light's interlocutory appeal concerning collateral estoppel. About this time the Ninth Circuit Court of Appeals reversed the federal district court's grant of summary judgment. Thereafter the parties agreed to dismiss the federal claims and most of the state claims except for those under WLAD, which were to be tried in superior court.
In pretrial motions, City Light sought to exclude the testimony of a City Light worker who previously won a discrimination suit against it. This worker had nothing to do with the hiring and promotion practices or procedures at issue here. City Light also sought to suppress the testimony of the former chief executive officer of City Light regarding generalized discrimination in the particular workplace. The trial court granted City Light's motions and limited testimony to acts of discrimination relevant to the hiring and promotion process at City Light under the helper transition program, or those involved in that program.
The apprenticeship exam consisted of a written test, a hands-on test, and an interview before an internal panel of five or six members. At trial, there was conflicting testimony regarding the actions of, and alleged biases of, panel members who participated in the administration of the apprenticeship exams, particularly Messrs. McDougal, Heney, and Ms. Delong. There was testimony regarding the difference in how panel members and other City Light employees treated minorities and women versus Caucasians. Regarding the testing of candidates, there was testimony regarding the perceived fairness of the panel members pre-discussing the candidates and knowing test scores before individually scoring and ranking them. There was testimony that great deference was given to Heney and McDougal by other panel members in ranking those who passed the tests, but there was conflicting testimony regarding this deference.
Heney's conduct was the focus of a prior discrimination action against City Light by employee Lois Hairston, an African-American woman. There was testimony that Heney referred to Pham as 'Charlie' for a long period of time, quit using the reference after being asked to do so, but then resumed calling him Charlie. Heney claimed he did not understand that 'Charlie' was a pejorative term to people from South Vietnam. There was also testimony that Heney used improper terms for women and Mexican-Americans.
CERCL is an employee organization at City Light that supported the equal treatment of women and minorities. Employees who opposed CERCL wore square buttons to express opposition. There was testimony that two of the panel members, if not three, wore square buttons at times.
City Light argued at trial that overall test ranking was the key factor in any promotion decision. Rose Yamada, a City Light manager, was on the panel in 1993 and the apprenticeship coordinator at City Light from 1994 through 1997. She testified that City Light established criteria for promotion for the cable splicer apprentice positions during the relevant periods. These criteria were referred to as the 'Yamada criteria.' Priority was to be given candidates who: (1) were in jeopardy of losing their jobs; (2) were internal hires; (3) passed the apprenticeship promotion exam; and (4) were members of groups certified as underrepresented in the cable splicer position, in other words women and minorities.
Despite City Light's affirmative action program in assisting the cable splicers to transition to better jobs, only 1 of 5 cable splicer apprentices hired in 1996 and 1 of 3 hired in 1995 were not Caucasian. The others hired these years were not from the helper transition program. Yamada testified that if two candidates were in jeopardy of losing their jobs, passed the test, and one candidate was certified as being a member of a group certified as underrepresented, and the other candidate was not from such a group, the candidate from the certified group would be awarded the job even if he or she passed the exam with a lower score. But Donald Melrose, a City Light manager, testified that in 1994 two apprentices were hired who were not in jeopardy of losing their jobs. There was other testimony that candidates who were not certified as being underrepresented were hired over those who were, but almost always these candidates did have higher scores. Yamada testified that in 1994 recommendations were based on scores and certifications. The same was alleged to be true in 1995 and 1996. In 1996, panel members decided to use their own recommendations to include only candidates who scored above a certain rank or percentile number.
Melrose testified that in the years 1994 through 1996 the interview panel submitted a hiring list containing a number of names, usually equal to the number of positions open, or that number plus one in case someone turned down the job.
There was also contradictory testimony concerning both the practical and oral portions of the exam and whether these exams were subject to bias. There was inconsistent expert testimony regarding whether a panel member could change the final ranking of candidates on the eligibility lists based on personality or perceived work ethic. In addition, one panel member testified that the panel had the discretion to increase or decrease the final interview scores of the candidates to affect their ranking. Other panel members disputed this fact.
There was conflicting testimony whether the helper candidates were given assurances by Dana Backiel, a City Light manager, that if they successfully completed courses and passed the exam, that cable splicer positions would be given to them. The jury heard testimony that helpers who passed the exam would receive hiring preference for apprenticeships over other applicants. Differing testimony from City Light witnesses indicated that this preference was not guaranteed.
Kathleen Grauman, a City Light equal employment opportunity officer, testified that during her internal investigation of the claims, Backiel told Grauman that she was involved in the decision to grant hiring preference to appliance repair persons in 1996 over the plaintiffs and others in the cable splicer apprentice hiring program. Backiel denied this testimony. But Melrose also testified that hiring priority for cable splicer apprentice positions was given to appliance repair personnel, who were in jeopardy of losing their jobs due to certain downsizing. Although the union representative denied that Lara and Pham were subject to discrimination, he testified that affording priority to the appliance repair applicants allowed them to be hired instead of the helpers in the helper transition program.
Admitting that his opinion did not reflect an analysis of City Light's policies and procedures in the hiring program, Peter Nickerson, City Light's expert economist, indicated he found no evidence of discrimination in the hiring process. He stated the evidence showed that the higher the candidate's overall test score, the more likely he or she would be hired. This mirrored City Light's overall defense: Rank on the list was the most important criteria and Lara and Pham did not excel in rank on the list of accepted candidates. There was testimony that the candidates chosen from the list had to be competitive but that term was never defined. However, there was also evidence to support that anyone who made the final eligibility list was qualified to be a cable splicer.
Another City Light manager, Michael Zimmerman, admitted that administration of the test was likely improper and the test was open to attack for a number of reasons including: 70 percent of the candidates' scores were administered without application of uniform grading; the panel members were not screened for bias; scores on the written exam were disclosed before other portions of the exam were graded and before the interviews took place. Zimmerman's testimony was supported by the expert hired by Lara and Pham. City Light's expert did not agree.
After all the evidence was heard, City Light moved under CR 50 for a post trial judgment as a matter of law, formerly known as a judgment notwithstanding the verdict. The trial court delayed its decision on the motion until the jury returned its verdict.
The jury returned a verdict in favor of Lara and Pham on their claims of race and national origin discrimination for the years 1995 and 1996, and awarded back pay, front pay, and non-economic damages of approximately $550,000. The jury returned a verdict for City Light on claims for discrimination in 1994. Judgment was entered. Thereafter, the trial court denied City Light's post trial motion for judgment as a matter of law. Lara and Pham sought post trial injunctive relief, which was denied. City Light filed a timely notice of appeal. Lara and Pham filed a separate appeal as well. The appeals were consolidated as an appeal and cross appeal.
In December 2002, the trial court ordered City Light to pay approximately $379,000 in attorney fees and costs to Lara and Pham as the prevailing parties in the action. In January 2003, City Light filed an amended notice of appeal to cover this award but offered no argument. In April 2003, the trial court awarded approximately $168,686 as supplemental damages to Lara and Pham to cover the United States income tax obligations of the judgment, as well as additional attorney fees and expert fees. City Light filed a second amended notice of appeal regarding this additional order, but again provided no briefing or argument. We presume that City Light filed this notice to preserve its argument in the event this court reverses the trial court's denial of the CR 50 motion. Concerning the CR 50 motion for judgment as a matter of law, the trial court analyzed the motion under the principles of Hill v. BCTI Income Fund-I and McDonnell Douglas Corporation v. Green, as clarified by Reeves v. Sanderson Plumbing Products, Inc. The trial court divided the case into two categories of alleged discrimination: (1) the administration of the test and the ranking pursuant to the exams; and (2) the selection of cable splicer apprentices, other than the plaintiffs.
This supplemental damages order was made pursuant to the holding of Blaney v. International Association of Machinists and Aerospace Workers, District 160, 114 Wn. App. 80, 55 P.3d 1208 (2002), review granted, 149 Wn.2d 1010 (2003).
Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 23 P.3d 440 (2001); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).
The court found as a matter of law that Lara and Pham failed to present sufficient evidence to prove that City Light discriminated against them in the administration of the exam. In reaching this decision, the court indicated that nondiscriminators and alleged discriminators ranked both Lara and Pham low, that they were ranked low even in a year where the alleged discriminators were not on the panel, and that other minorities were ranked higher and hired into the program.
However, the court further discussed whether there was sufficient evidence for the jury to conclude that race or national origin remained a substantial factor in City Light's failure to promote Lara and Pham to the position of cable splicer apprentice. The court indicated that the term 'persons of similar qualifications' as used in the McDonnell-Douglas case could mean anyone on the list, as argued by Lara and Pham, or anyone with a similar ranking, as argued by City Light. The court concluded that the jury could have found that being a minority was a priority qualification listed by City Light and that as long as the applicant was on the eligibility list, all applicants were equally or better qualified under City Light's transition scheme. Thus, the court held that Lara and Pham presented at least a prima facie case of discrimination.
The trial court held that City Light presented compelling evidence of a nondiscriminatory explanation for failing to promote Lara and Pham. The court found that City Light presented testimony that selection of the higher ranked applicants was the motivating factor in employment decisions for employees in the same circumstances. The court stated that City Light's promotion of applicants with higher scores, job jeopardy, and internal hires was consistently proven. Therefore the burden shifted back to Lara and Pham to show that City Light's explanation was merely pretext. The trial court held there was a basis for the showing of pretext, that the selection of the higher ranked applicants was not really a motivating factor for the selection. The court found evidence of pretext, shown by the panel's informal and non-sanctioned practice of drawing certain lines at total scores and not considering other applicants who made the list. The court found this practice to be inconsistent with City Light's direction to expand the eligibility list to increase the number of available certified minority candidates. The trial court held that the jury had reason to find pretext in City Light's failure to abide by City Light's own criteria, and denied the CR 50 motion.
City Light appeals the denial of its CR 50(a) motion. Lara and Pham cross appeal the trial court's denial of the admission of certain witness testimony, as well as the court's denial of injunctive relief.
Pending hearing at this court, objections were made to the briefing schedule. A commissioner of this court set the briefing schedule, and City Light's motion to modify the schedule was denied. Before hearing, City Light made a motion to strike a portion of Lara and Pham's reply brief as well as an errata filed by them. Lara and Pham opposed the motion and a decision was passed to the merits of the appeal. This court fully understands what is properly before it. We deny City Light's motion to strike.
DISCUSSION
We review a CR 50 motion for judgment as a matter of law de novo, and apply the same legal standard as the trial court. 'A [judgment as a matter of law] is proper only when the court can find, Qas a matter of law, that there is neither evidence nor reasonable inference therefrom sufficient to sustain the verdict.' A motion for a [judgment as a matter of law] admits the truth of the opponent's evidence and all inferences that can be reasonably drawn therefrom, and requires the evidence be interpreted most strongly against the moving party and in the light most favorable to the opponent. No element of discretion is involved.'
Hume v. Am. Disposal Co., 124 Wn.2d 656, 667, 880 P.2d 988 (1994).
Hill, 144 Wn.2d at 187-88 (quoting Aluminum Co. of Am. v. Aetna Cas. Sur., 140 Wn.2d 517, 529, 998 P.2d 856 (2000) (citations omitted)).
This court overturns a jury's verdict only if unsupported by substantial evidence. This court may not substitute its judgment for that of the jury as long as there is evidence that, if believed, would support the verdict. The record must contain a sufficient quantity of evidence to persuade a rational, fair-minded person of the truth of the premises in question. The WLAD makes it unlawful for an employer to refuse to hire or discriminate against any person in conditions of employment because of race or national origin. Lara and Pham claim that City Light discriminated against them by failing to promote them or transition them into the cable splicer apprentice program because of their race or national origin. They claim there is a pervasive system of discrimination at City Light, that the helper transition program selection program was flawed, and the selection of those allowed to enter the apprentice program was the result of discrimination and not in accord with City Light's affirmative action program.
Burnside v. Simpson Paper Co., 123 Wn.2d 93, 107-08, 864 P.2d 937 (1994).
Burnside, 123 Wn.2d at 108.
Burnside, 123 Wn.2d at 105-108.
'Direct, 'smoking gun' evidence of discriminatory animus is rare, since '[t]here will seldom be 'eyewitness' testimony as to the employer's mental processes,'' and "employers infrequently announce their bad motives orally or in writing." 'Consequently, it would be improper to require every plaintiff to produce 'direct evidence of discriminatory intent.'' 'Courts have thus repeatedly stressed that '[c]ircumstantial, indirect and inferential evidence will suffice to discharge the plaintiff's burden.'' Recognizing this, the United States Supreme Court established an evidentiary burden-shifting protocol in the case of McDonnell Douglas Corporation v. Green to compensate for the fact that direct evidence of intentional discrimination is often difficult to produce. Washington courts have largely adopted the federal protocol announced in McDonnell Douglas, as set forth in Hill BCTI Income Fund-I.
Hill, 144 Wn.2d at 179 (quoting United States Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983)).
Hill, 144 Wn.2d at 179 (quoting deLisle v. FMC Corp., 57 Wn. App. 79, 83, 786 P.2d 839 (1990)).
Hill, 144 Wn.2d at 179 (quoting Aikens, 460 U.S. at 714 n. 3); see also Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 So. Ct. 2148, 156 L.Ed.2d 84 (2003) (direct evidence of discrimination is not required for a plaintiff to obtain a mixed motive jury instruction under Title VII).
Sellsted v. Wash. Mut. Sav. Bank, 69 Wn. App. 852, 860, 851 P.2d 716 (1993).
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 688 (1973).
The court applies a three-part, burden-shifting scheme for evaluating motions for judgment as a matter of law in discrimination cases brought under state law. The employee has the initial burden of setting forth a prima facie case of unlawful discrimination. If the employee establishes a prima facie case, then the burden shifts to the employer to produce a legitimate, nondiscriminatory reason for the employer's action. If the employer produces such evidence, the burden shifts back to the employee who must show that the employer's stated reason for the action was mere pretext.
Kuest v. Regent Assisted Living, Inc., 111 Wn. App. 36, 43-45, 43 P.3d 23 (2002), review denied, 149 Wn.2d 1023 (2003).
Hill, 144 Wn.2d at 180-182.
'Once a court determines that the parties have met all three McDonnell Douglas intermediate burdens and that the record contains reasonable but competing inferences of both discrimination and nondiscrimination, 'it is the jury's task to choose between such inferences.'' The plaintiff's ultimate burden in a case under the WLAD is to present evidence sufficient for a trier of fact to reasonably conclude that the alleged unlawfully discriminatory animus was more likely than not a substantial factor in the adverse employment action.
Hill, 144 Wn.2d at 186 (quoting Carle v. McChord Credit Union, 65 Wn. App. 93, 102, 827 P.2d 1070 (1992)); Kuest, 111 Wn. App. at 45.
City Light asserts the trial court erred in failing to grant its CR 50 motion because Lara and Pham failed to establish a prima facie case of discrimination. City Light argues Lara and Pham failed to show they were treated differently than similarly situated individuals of similar qualifications of different race or national origin. We disagree. First, an employer's favorable treatment of other members of a plaintiff's protected class does not authorize a finding as a matter of law that the defendant may not have also illegally discriminated against the plaintiff. Second, the record shows that Lara and Pham presented substantial evidence of a longstanding history at City Light of a racially-charged environment and numerous incidents of race discrimination. Although the evidence was weak that the administration of the apprentice exams was rife with discrimination, there was substantial evidence that Lara and Pham established a prima facie case of discrimination by showing that they were racial or national origin minorities; that they applied for the promotion and were qualified; that they were rejected; and that they equally or better fit the qualifications for the promotion/employment than those hired under the standard set forth for priority hiring based on City Light's affirmative action program.
Lam v. Univ. of Hawaii, 40 F.3d 1551, 1561 (9th Cir. 1994).
See Kuyper v. Dep't of Wildlife, 79 Wn. App. 732, 735, 904 P.2d 793 (1995).
As a consequence of Lara and Pham meeting their burden, the burden shifts to the employer to present a legitimate business purpose for not promoting them. City Light met this burden by presenting evidence that its decisions were based on giving preference to top-ranked applicants and additional evidence that consideration was given for applicants in job jeopardy and for candidates who were internal hires.
Thus, the burden returned to Lara and Pham to prove that City Light's stated reason was pretextual. Our Supreme Court has endorsed the 'hybrid-pretext' standard under which an employee may show pretext by demonstrating that the employer's proffered reason is untrue.
Hill, 144 Wn.2d at 182; Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 363-64, 753 P.2d 517 (1988). See also Kastanis v. Educational Employees Credit Union, 122 Wn.2d 483, 495, 859 P.2d 26, 865 P.2d 507 (1993) (plaintiff must prove pretext under McDonnell Douglas to survive a motion for judgment as a matter of law).
[I]t is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation. . . . 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. . . . Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.
Hill, 144 Wn.2d at 184 (quoting Reeves, 530 U.S. at 147-48).
Lara and Pham primarily focused on the hiring process and that City Light's practice of selecting higher-ranked applicants was pretextual for discriminating against them. Although there was little or no evidence that City Light promoted nonminority candidates who scored lower than they did, Lara and Pham offered evidence that the selection of those applicants was not motivated by their higher ranking, but rather, their race or national origin. They produced evidence that the decision makers drew an arbitrary cutoff line for recommending applicants when there was no policy for this cutoff, especially considering the fourth Yamada factor that underrepresented minorities would gain a preference even if lower on the list. Thus, there is evidence with respect to City Light's failure to follow its own policies in its affirmative action program. This bolsters the evidence of a discriminatory motive. The jury could have concluded that City Light's affirmative action criteria mandated requirements that panel members and management failed to follow, therefore providing proof of a discriminatory motivation. Applying the standards of the cases mentioned above, it is apparent that City Light is not entitled to judgment as a matter of law. The trial court correctly concluded after reviewing all the evidence presented that there is evidence supporting Lara and Pham's prima facie case as well as evidence undermining City Light's nondiscriminatory explanation. Once an issue has gone to a jury, even on disputed evidence, this court will not overturn a verdict unless there is a complete dearth of evidence to support its decision. The jury's decision will not be disturbed.
On cross appeal, Lara and Pham claim the trial court abused its discretion by failing to admit evidence of City Light's generalized discrimination to bolster its claim that City Light's reasons were pretextual. Generally trial court determinations of whether evidence is relevant or should be excluded under ER 403 are within the discretion of the trial court and will not be overturned absent an abuse of that discretion. However, evidence that an employer subjects its employees to a general environment of discrimination may be relevant and material to proving that the employer's proffered nondiscriminatory reason for the challenged employment action is pretextual.
Sintra, Inc. v. City of Seattle, 131 Wn.2d 640, 662-63, 935 P.2d 555 (1997) (citing Industrial Indem. Co. v. Kallevig, 114 Wn.2d 907, 926, 792 P.2d 520 (1990)).
When deciding relevancy the trial court weighs whether the testimony would have a tendency to mislead, distract, waste time, confuse, or impede the trial, or be too remote either as to the issues or in point of time. Here, the trial court held that only evidence of current or prior alleged discrimination by the hiring recommendation decision makers was relevant and limited the testimony. The limitation was based on the court's reasoning that the additional offered testimony was not sufficiently comparable to the decisions made in the instant case, and thus the proffered testimony did not support a valid inference of a discriminatory pattern. This comports with the holding in Burnside v. Simpson Paper Company that such evidence is admissible but only where a proper foundation is laid to show that the witness is sufficiently comparable to the plaintiffs to support an inference of a discriminatory pattern. Here, the trial court held that generalized discrimination within City Light would not be relevant in this narrow action, unlike its relevance in a harassment or hostile work environment case. The court also decided the testimony was too remote to the issue of discrimination as brought, as well as too remote in time. Further, the trial court held that such evidence would be more likely to be prejudicial rather than being probative of the discrimination alleged.
Burnside, 66 Wn. App. at 521-22.
Evidence of other discrimination by City Light would principally be relevant to rebut its justification for the adverse employment action. The case of Roberts v. Atlantic Richfield Company, relied on by the trial court and City Light, is distinguishable as in that case the plaintiff did not state a prima facie case of discrimination. Even so, the admission of evidence showing instances of generalized discrimination sought by Lara and Pham were dissimilar to the issue at hand in this case, was too remote to both the issue of discrimination as brought, and in time, and would more likely be prejudicial rather than probative of the discrimination alleged, all reasonable grounds. We find no abuse of discretion.
Roberts v. Atlantic Richfield Co., 88 Wn.2d 887, 568 P.2d 764 (1977).
Lara and Pham also contend the trial court abused its discretion by denying injunctive relief. The most important factor in determining the need for injunctive relief is the likelihood of future discrimination. 'The duration and scope of an injunction are decided on the facts of each case at the trial court's discretion.' 'The trial court's decision exercising that discretion will be upheld unless it is based upon untenable grounds, or is manifestly unreasonable, or is arbitrary.'
Roe v. Cheyenne Mountain Conference Resort, Inc., 124 F.3d 1221, 1230 (10th Cir. 1997).
King v. Riveland, 125 Wn.2d 500, 515, 886 P.2d 160 (1994) (citing Boeing Co. v. Sierracin Corp., 108 Wn.2d 38, 63, 738 P.2d 665 (1987)).
King, 125 Wn.2d at 515 (citing Wash. Fed'n of State Employees, Coun. 28 v. State, 99 Wn.2d 878, 887, 665 P.2d 1337 (1983)).
In certain federal employment discrimination cases it has been said that denial of injunctive relief to a prevailing plaintiff in warranted circumstances may be an abuse of discretion. But those circumstances do not exist here. The trial court found the jury's findings of discrimination resulted from a now discontinued helper transition plan. Thus, there is evidence that the discriminatory conduct complained of will not recur in similar circumstances. Denial of an injunction under these facts is not an abuse of the trial court's discretion.
The decision of the trial court is affirmed.
BECKER and COX, JJ., concur.