2017 BLACK LIVES MATTER More on Johnson v. City of Seattle–Plaintiffs File Appellate Brief Alleging Errors by Judge Parisien

May 19, 2017

Today, plaintiffs filed a brief with the Court of Appeals outlining alleged errors committed by Trial Court Judge, the Honorable Suzanne Parisien, which justify a new trial. Jack said, “In this appeal, we are hoping to change the way trials are conducted in Washington, because Washington trial courts currently ignore the impacts of implicit bias (the tendency to automatically favor one race over another), even though many federal and state courts have addressed the issue in jury selection and in the conduct of the litigation.  We need to catch up.  We also need to ensure that juries are diverse. This appeal, if successful, with go a long way to obtaining those goals and to ensuring equal justice in Washington.”

Click here to see a copy of the brief.

Black Civil Rights Matter—Washington Courts Need To Instruct Juries That Implicit Bias Is Real And Has To Be Considered In Jury Deliberations And That Management’s Lies At Trial May Be Evidence Of Discrimination

Implicit Bias Jury Instruction

As a general rule, in whistleblower and discrimination cases involving white plaintiffs brought by the Sheridan Law Firm, Jack has observed that the plaintiff’s credibility has been on an equal footing with white managers who testify at trial, but in cases involving black plaintiffs, Jack has seen mostly white Washington juries ignore and explain away the lies told by white managers in open court, and magnify minor inconsistencies in the testimonies of the black plaintiffs—concluding that the black plaintiffs are not credible or are at least less credible than their white managers—regardless of the level of contradictory testimony by the white managers. This is implicit bias, and Washington attorneys need to address it with jury instructions that link management’s lies to discrimination and admonish juries to reflect on their automatic tendencies to believe or disbelieve a witness owing to race. Washington courts need to address it by instructing juries on the dangers of implicit bias in deliberations, and by finding ways to make juries more diverse.

In a criminal case, the Washington State Supreme Court recognized the need for diverse juries:

  • From a practical standpoint, studies suggest that compared to diverse juries, all-white juries tend to spend less time deliberating, make more errors, and consider fewer perspectives. Equal Justice Initiative Report. In contrast, diverse juries were significantly more able to assess reliability and credibility, avoid presumptions of guilt, and fairly judge a criminally accused. “By every deliberation measure, … heterogeneous groups outperformed homogeneous groups.” These studies confirm what seems obvious from reflection: more diverse juries result in fairer trials.

State v. Saintcalle, 178 Wn.2d 34, 50, 309 P.3d 326 (2013).

On the issue of implicit bias in the workplace, renowned University of Washington Psychologist Anthony G. Greenwald, Ph.D. has opined that, “There is now little doubt that implicit bias, in the form of unconscious attitudes and stereotypes, is a cause of discrimination.” He has found:

  • Implicit biases are pervasive and are often observed in more than 70% of Americans, most of whom genuinely and sincerely regard themselves as lacking in biases. Research using IAT measures finds that persons are often unaware of discrepancies between (on the one hand) their explicitly expressed—and often genuinely endorsed—egalitarian beliefs and attitudes and (on the other hand) the implicit stereotypes and attitudes that are revealed by their IAT measures. Research studies consistently find that a majority of persons who display implicitly biased associations on Implicit Association Test (IAT) measures are unaware of possessing those biases.

Click here to see example of federal case supporting Dr. Greenwald’s expert testimony under tougher federal standard for admitting such testimony (Samaha v. Washington State Dept. of Transportation (West))

Implicit bias also exists on jury panels, so in 2016, the American Bar Association adopted “Principles for Juries and Jury Trials,” which recognizes the implications of implicit bias in the deliberations of juries and recommended the following remedial practices:

The court should:

  1. Instruct the jury on implicit bias and how such bias may impact the decision-making process without the juror being aware of it; and
  1. Encourage the jurors to resist making decisions based on personal likes or dislikes or gut feelings that may be based on attitudes toward race, national origin, gender, age, religious belief, income, occupation, disability, marital status, sexual orientation, gender identity, or gender expression.

ABA Principle Six. “The American Bar Association recognizes the legal community’s ongoing need to refine and improve jury practice so that the right to jury trial is preserved and juror participation enhanced.”

Washington judges are ignoring the ABA’s recommendations—Washington judges do not presently require or give implicit bias jury instructions. Jurors need such instructions to check themselves and other jurors to ensure that they are not making credibility and trustworthiness decisions based on automatic views of parties and witnesses.

Click here to see ABA Principles for Juries and Jury Trials

Click here to see Dr. Greenwald’s report in Johnson v. City of Seattle

In post-verdict interviews of jurors by Jack, some non-black jurors explained away the lies told by white managers with phrases like, “we thought they just didn’t remember.”  In one case, a juror said that, had the plaintiffs had other witnesses to support their position, the seven plaintiffs would have seemed more believable (six African Americans and one Asian American).  Had the plaintiffs all been white, would this view have been articulated? Jack suggests that implicit bias instructions should be given in every case, because the court cannot know when a juror is using automatic responses to evaluate persons who are different.

Pretext Jury Instruction

The Sheridan Law Firm recently brought three discrimination cases to trial in King County (Seattle) representing black employees as plaintiffs.  In each case, there was solid testimony showing that managers lied about key facts and failed to follow procedures.  In each case, Jack asked the court for a jury instruction, which is given in other jurisdictions, to instruct the jury on pretext:

  • You may find that the plaintiff’s [race or other protected status] was a substantial factor in the defendant’s decision to terminate the plaintiff if it has been proved that the defendant’s stated reasons for the decision are not the real reasons, but a pretext to hide discrimination.

This is a critical instruction to show the jury that lying matters, and that proving that the defendant lied about the reason for doing what it did (termination, suspension, demotion) is evidence of discrimination. Jack stated, “without a pretext jury instruction to connect the dots, the long list of lies proves nothing more than the managers are liars.  The pretext instruction would have connected the dots in each case.”  This jury instruction would also benefit white plaintiffs who bring gender, age, sexual preference, military service, and disability discrimination cases, because they also have to prove that discrimination was a substantial factor in an adverse employment action (like termination), and in most cases must rely on evidence of pretext as circumstantial evidence of discrimination.

Monroe v. City of Seattle

This case involves an African American plaintiff claiming disability discrimination.  The mostly white and Asian American jury deliberated only 2 hours, and according to the sworn statement of the one black juror, did not review trial exhibits before reaching a decision against the plaintiff.  The trial judge refused to give either an implicit bias or pretext jury instruction. Oral argument on Ms. Monroe’s motion for a new trial will be heard on January 27, 2017, at 9:00 a.m. in the Honorable John Erlick’s courtroom (10th floor, room W-1060). The courthouse address is:

King County Superior Court
Third and James
516 Third Avenue
Seattle, WA 98104

Click here to see trial brief in Monroe v. City of Seattle

Click here to see Monroe v. City of Seattle motion for a new trial

Click here to see Exhibits 1-26 in Monroe v. City of Seattle

Click here to see Juror Declaration in Monroe v. City of Seattle

Click here to read Caucasian Manager Jensen’s trial testimony in Monroe v. City of Seattle

Trial Ex. 5 (procedures for fitness for duty)

Trial Ex. 71 (employee acknowledgement-form)

Trial Ex.-102 (observation form)

Trial Ex. 108 (email)

Trial Ex. 328 (Jensen notes )

Trial Ex. 332 (Jenson timeline)

Click here to read Jensen’s contradictory sworn statement (compare par. 15 to pages 107-110 of Jensen trial transcript; then look at pages 111-112 in which Seattle City Attorney offers to take blame for contradictory testimony by Jensen)

Farah v. Hertz Transporting, Inc

This is a religious discrimination case involving twenty-six Muslim African Americans, who are Somali refugees.  They were fired for praying at work without clocking out—after being permitted to do so for a decade before a new white manager took over—while smokers and others did not have to clock out for breaks.  The trial judge refused to give a pretext instruction.  The Court of Appeals explored the pretext jury instruction, and although the court recognized that it is an accurate statement of the law, the Court ruled that it need not be given.  The Court held, “While the instruction might be appropriate, the arguments in its favor are not compelling enough to hold that it is an abuse of discretion to refuse to give the instruction.” Farah v. Hertz Transporting, Inc., 196 Wn. App. 171, 383 P.3d 552, 558 (2016).

The Sheridan Law Firm has petitioned the Washington State Supreme Court in Farah, asking those nine justices to weigh in and make this instruction mandatory, as it is in a number of federal courts.

Click here to see Supreme Court petition in Farah v. Hertz Transporting

Click here to see Court of Appeals decision Farah v. Hertz Transporting (West)

Click here to see Washington Employment Lawyer’s Association friend of the court brief

Johnson v. City of Seattle

This is a race discrimination case involving seven plaintiffs: six are African American and one is Asian American.  The trial judge refused to give the implicit bias instructions proposed by plaintiffs, refused to allow Dr. Anthony Greenwald to testify about implicit bias in the workplace, and refused to give the pretext instruction.  The case is currently on appeal.

Jack noted, “Our jury had no African Americans on the panel (although three jurors were not Caucasian), which meant that the jury lacked the possibility (not guarantee) of having a perspective of the African American experience.  I asked the court to strike the jury pool and bring in a pool that had African Americans, but the Court denied my request.”

Jack notes there are experiences unique to African Americans, which Caucasians do not experience.  For example, there is a phrase called driving while black, which was explained in the Supreme Court case of State v. Valentine in a dissent by former Justice Sanders:

  • Young African American males frequently report being stopped and detained for reasons that are superficially pretextual. Even affluent people of color, who drive expensive or late-model cars, often report being stopped by law enforcement officers because of their race. This practice has become so prevalent that the actual justification for such detentions has become widely known as “Driving While black (D.W.B.).”

State v. Valentine, 132 Wn.2d 1, 28 n.1, 935 P.2d 1294, 1308 (1997) (Sanders dissent) (majority held that in Washington, a person cannot resist an illegal arrest).  Jack noted that “a Caucasian cannot have experienced the driving while black phenomenon, which is one of those life experiences that affects how one connects the dots when given certain facts, and in evaluating this case, the jury lacked the life experiences needed to give this case fair consideration—they could not connect the dots as to why the plaintiffs’ mistreatment related to race.”

Click here to see Motion for New Trial in Johnson v. City of Seattle

081516 Johnson Trial Transcript morning session (picking jury)

081516 Johnson Trial Transcript afternoon session (picking jury)

081616 Johnson Trial Transcript morning session (picking jury)

081616 Trial Transcript afternoon session (picking jury)


State Court judges are elected by the people at every level.  They campaign for election and reelection.  Attend forums where the candidates speak and ask:

  • What will you do to ensure that juries are diverse, since our Supreme Court recognizes that diverse juries do a better job?
  • Will you adopt the American Bar Association’s recommendation on instructing juries about implicit bias and if not, why not?

That’s a good start.  Dialogue is the first step toward change.  The Sheridan Law Firm and other law firms throughout the State that focus on civil rights will continue to bring these issues to the attention of trial judges and judges at the appellate level until our judiciary recognizes that black civil rights matter, and until they do something about it.

Click here to see ABA Principles for Juries and Jury Trials

Click here for a copy of State-v-Saintcalle (West)

Click here for copy of State v. Valentine (West)

2016 JUSTICE FOR SEATTLE CITY LIGHT WHISTLEBLOWER Aaron Swanson After Court of Appeals Upholds 2013 Whistleblower Verdict And Finds City of Seattle Whistleblower Ordinance is Defective

May 9, 2016

Today, the Court of Appeals reinstated the decision of the administrative law judge holding that Aaron Swanson was subjected to years of whistleblower retaliation after he reported that Lineworker Instructor Ron Allen had arbitrarily created and administered a test as a part of the lineworker apprenticeship process—a test no one could pass—then agreed to pass the apprentices if they brought him whiskey.  Every apprentice brought whiskey to class except for Aaron.  Ron Allen happened to be the nephew of the union’s business manager, and Aaron was shunned and harassed by crew chiefs while City Light management ignored his complaints.  The administrative law judge found in Aaron’s favor but the Superior Court overturned his victory.  The Court of Appeals agreed with the ALJ finding that the City’s former whistleblower ordinance was inadequate, and that under the State statute (RCW 42.41), Aaron produced substantial evidence to support his claim.  Open the Champaign!

Click here to see Court of Appeals decision

Click her to see the 2013 ALJ’s decision

April 21, 2017

Today Administrative Law Judge Lisa Dublin ordered the City of Seattle to pay Aaron Swanson over $100,000 in attorney fees and costs in connection with his whistleblower retaliation win in his case against the City.  The facts supporting the decision are outlined in the Court of Appeals opinion (see below).  Jack Sheridan, Aaron’s attorney, stated, “Aaron is very pleased that justice was finally done, and that the City was held accountable.”

Click here to see Court’s Findings re: attorney fees and costs

Click here to see Swanson Signed Attorney Fee Judgment Against City of Seattle

2016 JUSTICE FOR FERRY WORKER WHISTLEBLOWER Don Gillespie who Settles Lawsuit Against the State For $700,000.

Tacoma, WA

July 6, 2016

Today the State agreed to pay Don Gillespie $700,000 to settle his whistleblower retaliation lawsuit against the Washington State Ferries. Gillespie is a Shipwright Foreman for the Ferries. He works at the Eagle Harbor Division on Bainbridge Island.

According to papers filed in the case, in 2015, ferry worker Steve Chaussee was awarded $1 million by a Thurston County jury for whistleblower retaliation by ferry management, who perceived Chaussee to be the whistleblower who reported another worker’s charging his time for being at work while he was really away from work coaching baseball. Chaussee was demoted twice as a result, but he was not the actual whistleblower.

Don Gillespie was the actual whistleblower. After he and Chaussee had reported the improper conduct to management without any action being taken, Gillespie hired a third party to take pictures of Ferry Worker Jack Nannery coaching instead of working. Gillespie drafted a handwritten whistleblower complaint, and he and the third party brought the photos and complaint to a meeting with an investigator at the State Auditor’s office, who formally received the complaint and the photos.

The investigator promised them that no one would learn their identities. Under the law, “the identity or identifying characteristics of any person who in good faith provides information in an investigation under this section is confidential at all times, unless the person consents to disclosure by written waiver or by acknowledging his or her identity as a witness who provides information in an investigation.” RCW 42.40.040(2).

In 2009, the State Auditor released Gillespie’s whistleblower complaint to the Ferry’s managers, and it circulated from one manager to the next. At the Chaussee trial, his managers admitted that they could tell from the handwriting that Gillespie was in fact the real whistleblower, but no one in management returned the complaint to the auditor, or made an effort to tell Gillespie that they knew he was the whistleblower. After that, Gillespie alleged he was subjected to a hostile work environment and ongoing retaliation, but he didn’t know why until February 2015, when Vern Day, the Shop Manager, submitted a sworn statement in court saying that he recognized the handwriting. In a later sworn deposition, he admitted to knowing that Gillespie wrote the complaint.

Jack Sheridan, the attorney representing Gillespie said, “We are very pleased that the State came to the table to resolve this case now. This case reveals a significant security breach at the State Auditor’s Office, which calls into question whether the identities of state whistleblowers who report fraud, waste, and abuse will be protected by the very department entrusted to investigate that abuse. We all hope that the actions that led to release of the Gillespie complaint will not be repeated.”

The case was set for trial in February 2017.

Click here to see King5 news story

Click here to see Gillespie complaint

Click here to see Gillespie Tort Claim

Click here to See Vern Day Declaration saying recognized handwriting

Click here to see Chaussee Verdict Form

Click here to see Chaussee Trial Brief

2015 JUSTICE FOR PERCEIVED WHISTLEBLOWER Steve Chaussee: Thurston County Jury Awards Ferry Carpenter Foreperson $1 Million In Compensatory Damages For Retaliation Under State Whistleblower Law

Someone blew the whistle on a State ferry employee who was leaving work early to coach a children’s baseball team and billing the State as though he was working a full day.  Mr. Chaussee proved at trial that he was perceived to have been the whistleblower when in fact he was not, and he demoted owing to his management’s misperception.  The jury found that:

  • Chaussee was a perceived whistleblower
  • Chaussee was demoted

And the State failed to prove that:

  • The demotion was taken for reasons unrelated to Mr. Chaussee’s status as a whistleblower; and
  • An improper retaliatory motive was not a substantial factor in the decision to demote Mr. Chaussee.

The jury also found that Mr. Chaussee suffered noneconomic damages in the amount of $1 million.

Click here to see Chaussee Trial Brief

Click here to see State’s CR 68 $10,000 offer of judgment

0Click here to see the Chaussee Jury Verdict Form

Click here to see attorney fee award

2015 JUSTICE FOR HANFORD WHISTLEBLOWER Dr. Walter Tamosaitis Who Was Fired From His Position After Standing Up For Integrity Against Bechtel And URS Management; The Case Settled For $4.1 Million In Compensatory Damages

Dr. Walter Tamosaitis worked for URS at Hanford.  URS was a subcontractor to Bechtel, which was the prime contractor with the DOE at the time.  In the wake of a report detailing problems with the Hanford clean-up, Dr. Tamosaitis was appointed to lead a study reviewing technical challenges within the Waste Treatment Plant project. The WTP was being built to turn Hanford’s toxic and radiological waste into glass for storage.  The study identified twenty-eight technical issues, twenty-seven of which were “closed,” meaning resolved, by the planned

date of October 2009. The remaining issue, termed the M3 mixing issue proved to be a lingering and complex challenge. Dr. Tamosaitis wanted to extend the deadline for solving the issue to September 2010, while Bechtel wanted it resolved by June 2010. Failure to resolve the M3 mixing issue by June would have jeopardized Bechtel’s six million-dollar fee.

Bechtel rejected Tamosaitis’s advice and announced closure of the M3 mixing issue by June. Tamosaitis objected: He brought a fifty-point list of environmental and safety concerns to a meeting hosted by Bechtel; forwarded the same list to Bill Gay, a URS employee and WTP Assistant Project Manager; and reached out to several WTP consultants by email, hoping that they would oppose closure and publicize his concerns.

Two days later, Dr. Tamosaitis was fired from the WTP project. URS Operations Manager Dennis Hayes personally terminated Tamosaitis. Hayes directed Tamosaitis to return

his badge, cell phone, and Blackberry, and leave the site immediately. Dr. Tamosaitis was reassigned, in a nonsupervisory role, to a basement office in a URS facility off the Hanford site.

Dr. Tamosaitis filed a federal lawsuit for whistleblower retaliation under the Energy Reorganization Act.  The case was initially dismissed by District Judge Lonnie Suko, but reinstated by the 9th Circuit Court of Appeals, which made important decisions, including

  • That even though Bechtel dismissed Dr. Tamosaitis from the project, under the ERA, URS could be held liable for an employer may be liable for the retaliatory conduct of another entity where the employer either ratifies or acquiesces in the retaliation by not taking immediate and/or corrective actions when it knew or should have known of the conduct; and
  • That under the ERA, plaintiffs have a right to jury trial. This was the first decision in the United States finding that ERA plaintiffs get a jury.

Upon remand to the trial court, the case settled for $4.1 million before trial.

Click here to see Tamosaitis Second Amended Complaint

Click here to see 9th Circuit’s amended opinion

Click here to see signed settlement agreement

See additional details under the “Appeals” and “Trials and Settlements” headings on the Sheridan Law Firm website.