IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
BENJAMIN DANIELSON, No. 87793-3-I
Respondent,
DIVISION ONE
v.
SEATTLE CHILDREN’S HOSPITAL, a ORDER GRANTING MOTION Washington nonprofit corporation TO PUBLISH
Appellant.
Respondent, Benjamin Danielson, moved for publication of the opinion filed
on May 26, 2026 and appellant, Seattle Children’s Hospital, filed an answer to the
motion, opposing publication. A majority of the panel has determined that the motion
should be granted.
Now, therefore, it is hereby
ORDERED that the motion to publish is granted.
FOR THE COURT:
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
BENJAMIN DANIELSON,
No. 87793-3-I
Respondent,
DIVISION ONE
v.
UNPUBLISHED OPINION
SEATTLE CHILDREN’S HOSPITAL,
a Washington nonprofit corporation
Appellant.
DÍAZ, J. — Dr. Benjamin Danielson sued Seattle Children’s Hospital (the
hospital) under the Washington Law Against Discrimination (WLAD), chapter
49.60 RCW. Danielson claimed that, during the 21 years he was employed as the
medical director of the hospital’s Odessa Brown Children’s Clinic (OBCC), he was
subjected to a hostile work environment due to his race. He also claimed that he
experienced retaliation for opposing such racism and for calling attention to the
hospital’s “continuing refusal to take meaningful steps” to address the racism. The
jury awarded Danielson $21 million in damages. The hospital challenges both the
verdict and the amount of damages. We affirm.
No. 87793-3-I/2
I. BACKGROUND
Danielson was employed from 1999 to 2020 as the medical director of the
OBCC, a satellite clinic of Seattle Children’s Hospital. OBCC largely served
African American patients. Danielson, an African American doctor, testified at trial
that other hospital employees doubted his intelligence and competence in his role
and that, for the full 21 years, he was not “welcome” in the professional space.
More overtly, other witnesses testified that the president of an affiliated
research institute, Jim Hendricks, referred to Danielson using an egregious racial
slur, and that the hospital did not address the slur even after it was reported to the
president of the Seattle Children’s Foundation and the hospital’s Chief Executive
Officer (CEO).
Danielson also testified about systemic racism that impacted both
employees and patients in the hospital. At a meeting of the board of directors in
2019, Danielson expressed concerns that the hospital was not prioritizing funding
that would serve the African American community. In 2020, Danielson was
investigated for a HIPAA violation, and then for other alleged issues with his
leadership. The investigation found that some allegations of misconduct were at
least partially substantiated. They planned to conduct a “360 review 1 of [his]
leadership” and require Danielson to work with a leadership coach. Danielson
believed this was a retaliation for what he had said at the board meeting. He
resigned from his position at the hospital.
1 A “360 review” is a professional development tool intended to provide those in
leadership positions with feedback from multiple sources.
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No. 87793-3-I/3
After Danielson resigned, the hospital hired the law firm Covington and
Burling to complete an investigation and assessment of racial equity in the hospital.
The firm produced a report (the Covington report) which included both findings and
recommendations. Among other findings, the report stated that the hospital indeed
had not adequately investigated the allegation that Danielson was called by a racial
slur, and that the hospital work environment “excludes and undervalues BIPOC
workforce members.”
Danielson sued the hospital under WLAD, claiming both a hostile work
environment and retaliation. The hospital moved for summary judgment, which
the court denied. After a 16-day trial, the jury returned a ten-to-two verdict of $21
million for Danielson. The court then denied the hospital’s motions for judgment
as a matter of law, for a new trial, and for remittitur. The hospital timely appeals.
II. ANALYSIS
WLAD makes it unlawful for an employer to discriminate against an
employee because of race. RCW 49.60.180(3). RCW 49.60.030(2) allows an
employee subjected to discrimination to bring a civil action against their employer.
WLAD is to be “construed liberally to effectuate its purpose of remedying
discrimination.” Gibson v. Costco Wholesale, Inc., 17 Wn. App. 2d 543, 556, 488
P.3d 869 (2021) (citing Clipse v. Commercial Driver Servs., Inc., 189 Wn. App.
776, 790, 358 P.3d 464 (2015)).
A. Hostile Work Environment
The hospital makes various arguments in support of reversal of the jury
verdict finding a hostile work environment. First, it claims that the trial court erred
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when it denied its motions for summary judgment, directed verdict, and judgment
as a matter of law. Second, the hospital claims that the court abused its discretion
when it admitted evidence of the racial slur and did not give a limiting instruction
regarding the findings of the Covington report. Third, the hospital argues that the
court gave an improper jury instruction. We hold that the court did not err in any
of these respects and that substantial evidence supports the jury’s verdict. We
address each argument in turn.
1. Substantial Evidence
We first address the appropriate standard of review. The hospital argues
that this court should review de novo the denial of its motions for summary
judgment and judgment as a matter of law. We disagree and review the verdict
for substantial evidence.
“‘A summary judgment denial cannot be appealed following a trial if the
denial was based upon a determination that material facts are disputed and must
be resolved by the factfinder.’” Kaplan v. Nw. Mut. Life Ins. Co., 115 Wn. App.
791, 799, 65 P.3d 16 (2003) (quoting Brothers v. Pub. Sch. Employees of Wash.,
88 Wn. App. 398, 409, 945 P.2d 208 (1997)). The losing party must then appeal
the sufficiency of the evidence. Winbun v. Moore, 143 Wn.2d 206, 213, 18 P.3d
576 (2001). “‘The record must contain a sufficient quantity of evidence to persuade
a rational, fair-minded person of the truth of the premise in question.’” Id. (quoting
Canron v. Fed. Ins. Co., 82 Wn. App. 480, 486, 918 P.2d 937 (1996)).
The reviewing court should overturn a jury verdict only if it is clearly
unsupported by substantial evidence. Gorman v. Pierce County, 176 Wn. App. 63,
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87, 307 P.3d 795 (2013). Substantial evidence is “evidence that, if believed, would
support the verdict.” Id. The jury’s role is to consider the evidence and draw
inferences from it. Burnside v. Simpson Paper Co., 123 Wn.2d 93, 108, 864 P.2d
937 (1994). “We cannot substitute our judgment for that of the jury.” Gorman, 176
Wn. App. at 87. Since the jury found that Danielson had met his burden based on
the evidence, we should review for substantial evidence instead of de novo review.
Winbun, 143 Wn.2d at 213.
The hospital claims that Danielson’s hostile work environment claim fails
because Danielson “presented no evidence of racially-motivated workplace
harassment.” By way of summary only, we hold that, at a minimum, Danielson’s
testimony—that (a) hospital staff doubted his competence due to his race and (b)
the hospital did not adequately address a racial slur directly aimed at Danielson—
alone or together could persuade a rational juror that Danielson was subjected to
a hostile work environment. Winbun, 143 Wn.2d at 213. A juror could reasonably
conclude from the totality of those circumstances that Danielson experienced
harassment that affected the conditions of his employment. Blackburn v. Dep’t of
Social & Health Servs., 186 Wn.2d 250, 260, 375 P.3d 1076 (2016). Those two
pieces of evidence alone or together are substantial evidence to support the jury’s
verdict.
“An employee must demonstrate four elements for a hostile work
environment claim: that the harassment (1) was unwelcome, (2) was because of a
protected characteristic, (3) affected the terms or conditions of employment, and
(4) is imputable to the employer.” Id. at 260 (citing Glasgow v. Ga.-Pac. Corp.,
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103 Wn.2d 401, 406-07, 693 P.2d 708 (1985)). The hospital claims that Danielson
failed to demonstrate harassment that affected the terms or conditions of
employment.
Whether the conduct affected the “terms and conditions of employment” is
generally a question of fact for the jury to determine by examining the “totality of
the circumstances.” Davis v. Fred’s Appliance, Inc., 171 Wn. App. 348, 362, 287
P.3d 51 (2012).
Danielson argued that he experienced a hostile work environment because
hospital staff questioned his competence due to his race. He testified that people
“didn’t think [he] was very smart . . . were amazed that [he]’d have the right answer,
or thought [he] was somehow cheating[.]” He testified that for 21 years, he was
“either considered too loud or too quiet” and that he felt he was “a person not
welcome in the space that [he] really felt was [his] professional home.” He
specifically stated that, when Jeff Sperring became CEO in 2015, he subjected
Danielson to discriminatory behavior until Danielson resigned. 2
Over the hospital’s objection, discussed below, Danielson presented
evidence that in 2007, Dr. Hendricks called Danielson the N-word when talking to
another employee. The employee reported the incident to the president of the
Seattle Children’s Foundation, Doug Picha, and then to human resources. The
report was passed on to Tom Hansen, the CEO at the time. The employee also
2 The hospital did not challenge any of this testimony as being conclusory or vague
at trial or on appeal. The only testimony that the hospital argued is conclusory is Danielson’s testimony of the racist treatment he experienced during his residency, which we do not rely on as substantial evidence to support Danielson’s hostile work environment claim.
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No. 87793-3-I/7
eventually told Danielson himself, who brought it up with the hospital medical
director, David Fisher. Fisher changed the subject and did not address the issue.
Dr. Hendricks continued to work at the hospital until the end of 2020.
The hospital argues that the three-year statute of limitations bars the racial
slur from forming the basis for a hostile work environment. 3 But for a hostile work
environment claim, as long as one event “occurs within the filing period, the entire
time period of the hostile environment may be considered by a court for the
purposes of determining liability.” Antonius v. King County, 153 Wn.2d 256, 264,
103 P.3d 729 (2004) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
117, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002)). A hostile work environment
“‘occurs over a series of days or perhaps years and, in direct contrast to discrete
acts, a single act of harassment may not be actionable on its own . . . Such claims
are based on the cumulative effect of individual acts.’” Id. (alteration in original)
(quoting Morgan, 536 U.S. at 115).
The hospital in response argues that Danielson did not show that the racial
slur was part of the same hostile work environment because he failed to present
“specific material facts showing similarly offensive language or conduct after July
17, 2020.” (Emphasis omitted.) They claim that, because Danielson admitted that
he had no knowledge that anyone else had “ever used racially discriminatory
language about him,” he lacked evidence that any hostile work environment
continued into 2020.
3 Although the hospital disputed Hendricks’s use of the slur at trial, it concedes that
following the jury’s verdict, the reviewing court presumes that Hendricks did in fact use the slur to refer to Danielson.
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No. 87793-3-I/8
But “[t]he standard for linking discriminatory acts together in the hostile work
environment context is not high.” Loeffelholz v. Univ. of Wash., 175 Wn.2d 264,
276, 285 P.3d 854 (2012). Danielson need not present evidence, as the hospital
claimed at oral argument, of a specific slur was directed at him within the statute
of limitations. Wash. Ct. of Appeals oral argument, Danielson v. Seattle Children’s
Hospital, No. 87793-3-I (April 10, 2026), at 4 min., 45 sec. through 4 min., 59 sec.,
video recording by TVW, Washington State’s Public Affairs Network,
https://tvw.org/video/division-1-court-of-appeals2026041013/?eventID=2026041013.
In Antonius, our Supreme Court rejected the continuing violation doctrine,
which required a “substantial relationship between the timely and untimely
conduct[.]” 153 Wn.2d at 262. The court held instead that “some relationship” is
required between acts constituting the same hostile work environment. Id. at 271.
The jury was correctly instructed that they may “consider conduct occurring
prior to July 17, 2020, only if it is part of the same hostile work environment as at
least one act that took place after July 17, 2020.” See Morgan, 536 U.S. at 115
(“Provided that an act contributing to the claim occurs within the filing period, the
entire time period of the hostile environment may be considered by a court for the
purposes of determining liability.”). We hold that it was the jury’s role to determine
whether the racial slur in 2007 was part of a hostile work environment that
continued until 2020. See Loeffelholz, 175 Wn.2d at 276–77 (“a reasonable juror
could infer from these events that the ‘angry man’ comment was a natural
extension of the conduct that made up the preamendment oppressive work
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No. 87793-3-I/9
environment.”). It is the reviewing court’s role to review such an inference for
substantial evidence. See Burnside, 123 Wn.2d at 107-08.
The hospital claimed at oral argument that “there is absolutely no
suggestion that Dr. Danielson was being considered any differently by any of his
colleagues within the statute of limitations.” Wash. Ct. of Appeals oral argument,
supra at 5 min., 40 sec. through 5 min., 59 sec. We disagree. Danielson testified
that “throughout” his employment, he was “both criticized for saying too much and
saying too little” due to his race. He testified that “[t]here was never a time, during
[his] entire twenty-one-year tenure at—at OBCC as medical director, where [he]
believed that a hostile work environment did not exist.” He also testified that he
heard the CEO “talk glowingly” about Dr. Hendricks even after Hendricks’ use of
the racial slur was reported and supposedly investigated. He testified that “starting
from 2015 forward, [he] believed that Dr. Jeff Sperring subjected [him] to
discriminatory behavior.”
Taken in the context of the hospital’s choice to ignore a racial slur, a
reasonable juror could infer that the later discrimination Danielson described was
a “natural extension of the conduct that made up the . . . oppressive work
environment” that existed prior to July 2020. See Loeffelholz, 175 Wn.2d at 276.
At oral argument, the hospital attempted to factually distinguish Loeffelholz.
Wash. Ct. of Appeals oral argument, supra at 18 min., 40 sec. through 20 min., 15
sec. It points out that Loeffelholz was denied overtime and training opportunities,
a specific harm due to her sexual orientation. Loeffelholz, 175 Wn.2d at 268.
But a racial slur is also specific harm which, as the hospital conceded at
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No. 87793-3-I/10
oral argument, could serve as a basis for liability due to a hostile work environment.
Wash. Ct. of Appeals oral argument, supra at 1 min., 35 sec. through 1 min., 47
sec. Our Supreme Court held in Loeffelholz that, even though the specific harm
occurred before the period of liability, it was part of the same hostile work
environment as her supervisor’s comment that he would become an “angry man.”
175 Wn.2d at 276–77. We similarly hold that even though the racial slur occurred
outside the statute of limitations, it occurred within the same hostile work
environment as the racial discrimination that Danielson experienced until he
resigned.
The hospital argues in a Statement of Additional Authorities that, if we were
to allow Danielson to rely on the racial slur as evidence of a hostile work
environment, we would “abolish” the statute of limitations for such claims. But our
Supreme Court dismissed that argument in Antonius, when it rejected the
substantial relationship requirement “[i[n light of the rule of liberal construction and
the purposes of the law prohibiting . . . discrimination.” 153 Wn.2d at 270.
The hospital next claims that Crownover v. Dep’t of Transp., 165 Wn. App.
131, 143, 265 P.3d 971 (2011), supports its argument that Danielson fails to show
“similarly offensive language or conduct” in order to present evidence of the racial
slur to the jury. We disagree. In Crownover, this court affirmed summary judgment
dismissal because the plaintiff had sought to use unrelated “retaliatory conduct” to
anchor in gender discrimination that occurred before the statute of limitations. Id.
Danielson does not rely on retaliatory conduct to establish a hostile work
environment. He instead presented evidence that the employee who called
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No. 87793-3-I/11
Danielson a racial slur continued to be praised by the CEO, and that the same
CEO also treated Danielson differently because of his race.
The hospital also claims that Crownover supports its argument that an act
too remote in time, such as the racial slur in this case, cannot serve as evidence
of a hostile work environment. But the court in Crownover held that “[a]cts that are
‘so discrete in time or circumstances’ . . . do not constitute a single hostile work
environment.” 165 Wn. App. at 144 (internal quotation marks omitted) (quoting
Lucas v. Chi. Transit Auth., 367 F.3d 714, 727 (7th Cir. 2004)). But Danielson did
not present evidence of the racial slur is as a “discrete” event. Danielson presented
the racial slur as evidence of discrimination that lasted for his entire employment.
Examining the totality of the circumstances, the evidence in this case could
“persuade a rational, fair-minded person” that Danielson was subjected to a hostile
work environment. Winbun, 143 Wn.2d at 213 (internal quotation marks omitted).
Finally, the hospital cites Scaife v. U.S. Dep't of Veterans Affairs, 49 F.4th
1109, 1117 (7th Cir. 2022), in which the Seventh Circuit affirmed a dismissal of the
hostile work environment claim when a supervisor used a racial slur one time
outside the employee’s presence. Although the hospital claims that Scaife
supports their argument that “a single racial slur that the plaintiff did not personally
experience cannot create a hostile work environment,” the Seventh Circuit
acknowledged that a one-time use of an epithet could in some circumstances
warrant liability. 49 F.4th at 1116. Unlike Danielson, who testified that he
experienced discrimination and implicit bias from other employees of the hospital,
the employee in Scaife relied on the racial slur as the only evidence of a hostile
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No. 87793-3-I/12
work environment based on race. Id. The case also states that “racial epithets do
not always have to be stated directly to a plaintiff to create an objectively hostile
work environment[.]” Id. We therefore decline to weigh the totality of the
circumstances, deferring instead to the jury’s determination.
In addition to his individual experience, Danielson also presented evidence
of systemic racism affecting both patients and employees of the hospital.
Supervisors gave employees of color “across the board” lower performance
reviews than their white peers. The OBCC building itself was not maintained as
well as the hospital’s main building. Unlike other clinics, OBCC had to rely on
donations for funding. The hospital used a “Code Purple” to call security
disproportionately on Black families. Hospital staff mistreated children with sickle
cell anemia, labeling them as “drug seeking.” Danielson testified that he
experienced “secondary trauma” from witnessing the racist treatment of “people
with [his] background.”
Danielson argues that the unaddressed systemic racism is additional
evidence of a hostile work environment. The hospital responds that evidence of
“[s]ystemic implicit bias”, “failure to fully eliminate institutional racial disparities”, or
“racially motivated” funding decisions, cannot be evidence of a hostile work
environment because they are not evidence of individual harm or harassment.
But, because Danielson provides substantial evidence of a hostile work
environment by describing how employees treated him individually, we may affirm
based on said evidence. Truck Ins. Exch. v. Vanport Homes, Inc., 147 Wn.2d 751,
766, 58 P.3d 276 (2002) (“We may affirm the trial court on any grounds established
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No. 87793-3-I/13
by the pleadings and supported by the record.”). “‘Principles of judicial restraint
dictate that if resolution of an issue effectively disposes of a case, we should
resolve the case on that basis without reaching any other issues that might be
presented.’” Wash. State Farm Bureau Fed’n v. Gregoire, 162 Wn.2d 284, 307,
174 P.3d 1142 (2007) (internal quotation marks omitted) (quoting Hayden v. Mut.
of Enumclaw Ins. Co., 141 Wn.2d 55, 68, 1 P.3d 1167 (2000)). Thus, we need not
and do not address whether evidence of racial disparities, implicit bias, and
systemic inequity that were not directed at Danielson individually are evidence of
a hostile work environment.
2. Evidentiary Rulings
The hospital assigns error to two of the trial court’s evidentiary rulings. We
review evidentiary rulings for an abuse of discretion. Helmbreck v. McPhee, 15
Wn. App. 2d 41, 55, 476 P.3d 589 (2020).
The hospital argues that the court abused its discretion under ER 403 when
it admitted evidence of the racial slur that occurred before the three-year WLAD
statute of limitations.
Relevant evidence should be excluded if “its probative value is substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or
misleading the jury[.]” ER 403. We give great deference to the trial court’s
“balancing of probative value against prejudicial effect” in ER 403 rulings. Degroot
v. Berkley Constr., Inc., 83 Wn. App. 125, 128, 920 P.2d 619 (1996).
Since racism is the central issue to this case, the racial slur has high
probative value. The hospital argues that it is too remote in time to be relevant,
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but as we addressed supra, as long as one event “occurs within the filing period,
the entire time period of the hostile environment may be considered by a court for
the purposes of determining liability.” Antonius, 153 Wn.2d at 264 (quoting
Morgan, 536 U.S. at 117). Since we hold that the slur is a part of the same hostile
work environment that continued until Danielson resigned in 2020, the slur is
relevant to the hostile work environment claim.
It is true that racial slurs can be highly prejudicial, but, given the nature of
this case, the slur has high probative value and it is not an abuse of discretion to
find that it was not “unfair” prejudice to hold leadership to the words it chooses to
use. Thus, we hold that the court did not abuse its discretion in admitting it as
evidence of a hostile work environment. Degroot, 83 Wn. App. at 128.
The hospital next argues that the court erred when it declined to give a
limiting instruction regarding the jury’s consideration of the Covington report. We
again find no abuse of discretion.
The Covington report included a finding that the hospital did not “adequately
investigate or address” the allegation of Dr. Hendricks referring to Danielson with
a racial slur. The hospital moved to exclude the Covington report from evidence
under ER 407. The court denied the motion. The hospital then asked the court to
provide a limiting instruction clarifying report should not be considered as proof of
culpability. The court again denied the motion.
The hospital argues that the court should have instructed the jury that the
Covington report “could not be considered as evidence of culpable conduct.” It
claims that the Covington report was a remedial measure and therefore cannot be
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No. 87793-3-I/15
used as evidence of liability under ER 407.
“When, after an event, measures are taken which, if taken previously, would
have made the event less likely to occur, evidence of the subsequent measures is
not admissible to prove negligence or culpable conduct in connection with the
event.” ER 407. But ER 407 does not protect reports or investigations into what
went wrong. 4 See Rocky Mountain Helicopters, Inc. v. Bell Helicopters Textron,
805 F.2d 907, 918 (10th Cir. 1986)) (“It would strain the spirit of the remedial
measure prohibition in Rule 407 to extend its shield to evidence contained in postevent tests or reports . . . such tests are conducted for the purpose of investigating
the occurrence to discover what might have gone wrong or right.”). The protected
remedial measures would be “actions taken to remedy any flaws or failures
indicated by the” report. Id.
The hospital argues that “[c]ourts diverge from Rocky Mountain when, as
here, post-event tests or studies serve both investigatory and remedial ends.”5
Although the Covington report did include both findings and recommendations,
4 See also CLIFFORD S. FISHMAN & ANNE TOOMEY MCKENNA, JONES ON EVIDENCE §
21:13 (7th ed. Nov. 2025) (stating that “most courts have interpreted Fed. R. Evid. 407 and state equivalents as excluding only evidence of the actual implementation of a safety improvement, but not the reports or memoranda that lead up to the improvements”; noting that “[a] careful reading of the rule . . . supports this interpretation: To be excluded under the rule, the measure at issue must be one that could have been taken before the event that gave rise to the claim. One cannot investigate an accident before it occurs, so an investigation and report of the cause of an accident, . . . cannot be a measure that is excluded from evidence under the rule” (some alterations in original) (internal quotation marks omitted)). 5 The Tenth Circuit recently declined to diverge from Rocky Mountain in Packard
v. City of Denver, No. 24-1367, 2026 WL 1077632 (10th Cir. Apr. 21, 2026), holding that testimony of investigation into police response to protests was not barred by ER 407 even though the investigation conclusions included “implied” recommendations.
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No. 87793-3-I/16
there is no evidence that the finding regarding the inadequate investigation of the
racial slur served any remedial end. We hold that the findings and
recommendations in the Covington report are not evidence that the hospital has
actually taken remedial measures to address the hostile work environment that
Danielson describes. The court therefore did not abuse its discretion in declining
to provide a limiting instruction.
3. Jury Instructions
The hospital argues that the court erred when it replaced the word
“harassment” in the jury instructions with the words “hostile work environment”
because it removed Danielson’s burden to establish harassment. We disagree.
The parties initially agreed to jury instructions that exactly followed 6A
WASH. PRAC., WASH. PATTERN JURY INSTR. CIV. WPI 330.21 at 345 (7th ed. 2022)
(WPI). That night over email, Danielson asked to replace the word “harassment”
used in the WPI, with “hostile work environment,” which he argued would be less
confusing to the jury. The court agreed and revised the jury instructions over the
hospital’s objection.
“Jury instructions are generally sufficient if they are supported by the
evidence, allow each party to argue its theory of the case, and, when read as a
whole, properly inform the trier of fact of the applicable law.” Helmbreck, 15 Wn.
App. 2d at 57. We review de novo whether a jury instruction correctly states the
law. Taylor v. Intuitive Surgical, Inc., 187 Wn.2d 743, 767, 389 P.3d 517 (2017).
A misleading instruction does not require reversal without proof the instruction was
prejudicial. Keller v. City of Spokane, 146 Wn.2d 237, 249, 44 P.3d 845 (2002). It
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No. 87793-3-I/17
is the party challenging an instruction that bears the burden of establishing
prejudice. Griffin v. W. RS, Inc., 143 Wn.2d 81, 91, 18 P.3d 558 (2001).
The relevant WPI on employment discrimination reads, “Harassment on the
basis of [(describe protected status)] is unlawful [employment] discrimination.”
WPI 330.21 at 345 (emphasis added). The pattern jury instruction on a hostile
work environment reads, in part, “To establish [his] [her] claim of harassment on
the basis of [(describe protected status)], (name of plaintiff) has the burden of
proving each of the following propositions: (1) That there was language or conduct
concerning [(describe the language or conduct related to protected status)]; . . . (3)
That this conduct or language was so offensive or pervasive that it altered the
conditions of (name of plaintiff)'s employment.” WPI 330.23 at 350 (emphasis
added).
Here, the language describing the elements that Danielson would need to
prove to meet his burden remained unchanged. The amended jury instructions
therefore correctly stated the law and placed the correct burden on Danielson,
even if they do not exactly match the WPI.
The hospital was able to argue its case that Danielson had failed to present
evidence “proving that . . . [racism] altered the conditions of his employment.” The
hospital does not show that the jury instructions prejudiced its ability to present its
case. Griffin, 143 Wn.2d at 91. Since the jury instructions informed the jury of the
applicable law and allowed each party to argue its case theory, we find no error in
the challenged jury instructions. Helmbreck, 15 Wn. App. 2d at 57.
The hospital further argues that the court “exacerbated its error” when it
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declined to provide the hospital’s proposed clarifying instruction to the jury. We
disagree.
During deliberations, the jury asked, “What does the term conditions of
employment mean?” 6 The hospital proposed offering the following clarifying
language: “Conduct affects the terms or conditions of employment i[f] it is
sufficiently pervasive to alter the conditions of employment and create an abusive
work environment. Whether conduct meets this test depends on the ‘totality of the
circumstances’, including the frequency and severity of harassing conduct,
whether it was physically threatening or humiliating or merely an offensive
utterance, and whether it unreasonably interfered with the employee’s work
performance.” This proposed clarification relied on the law as explained in
Glasgow, 103 Wn.2d at 406-07.
The court declined to offer the hospital’s proposed language, concerned
that highlighting certain things for the jury to consider would be the court improperly
commenting on the evidence. We hold that this ruling was not in error.
The hospital’s proposed instruction did not define “conditions of
employment,” as the jury had requested. The instruction instead offered examples
of evidence that the jury may consider. The court was correct to avoid instructing
the jury to place more weight on certain evidence. See In re Det. of R.W., 98 Wn.
App. 140, 144, 988 P.2d 1034 (1999) (holding that the trial court impermissibly
6 The hospital claims that this question is evidence that removing “harassment”
from the jury instructions confused the jury. We disagree. WPI 330.23 defines harassment as conduct or language “so offensive or pervasive that it altered the conditions of . . . employment.” It is circular reasoning to conclude that the defining “conditions of employment” for the jury would require the word “harassment.”
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No. 87793-3-I/19
comments on the evidence if it “instructs the jury as to the weight that should be
given certain evidence.”).
Thus, each of the various challenges the hospital brings to Danielson’s first
cause of action fail.
B. Retaliation
The hospital next claims that the court erred when it denied its motion for
judgment as a matter of law on Danielson’s claim of retaliation. We disagree.
“When reviewing an order granting or denying a motion for judgment as a
matter of law, this court applies the same standard as the trial court, determining
whether, after viewing the evidence in the light most favorable to the nonmoving
party, substantial evidence exists to support the verdict for the nonmoving party.”
Grove v. PeaceHealth St. Joseph Hosp., 182 Wn.2d 136, 143, 341 P.3d 261
(2014).
The hospital claims that “[n]o reasonable juror could find that Children’s
retaliated against Dr. Danielson by initiating an investigation six months after he
spoke out regarding the Odessa Brown project at the September 2019 Board
meeting.” We disagree and hold that the jury’s finding of retaliation is supported
by substantial evidence.
WLAD prohibits employers from “retaliating against employees who oppose
discriminatory practices.” Cornwell v. Microsoft Corp., 192 Wn.2d 403, 411, 430
P.3d 229 (2018) (citing RCW 49.60.210(1)). “To establish a prima facie case of
retaliation, an employee must show three things: (1) the employee took a statutorily
protected action, (2) the employee suffered an adverse employment action, and
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(3) a causal link between the employee's protected activity and the adverse
employment action.” Id. at 411.
We hold that Danielson engaged in a protected action when he expressed
the belief that the hospital was not keeping funding commitments to the African
American community that the clinic served. 7 A statutorily protected action occurs
if an employee opposes a practice that “he reasonably believed to be
discriminatory.” Alonso v. Qwest Commc'ns Co., LLC, 178 Wn. App. 734, 754,
315 P.3d 610 (2013). If the employee alleges racial discrimination, the practice or
action must include some reference to race. See id.
Danielson testified at trial that, at a board meeting in September 2019, he
expressed concern that the hospital was deprioritizing funding that would serve the
African American community. Danielson’s speaking up at the board meeting is a
protected activity because Danielson “reasonably believed” that the hospital’s
budgeting decisions were discriminatory based on the race of the patients. Alonso,
178 Wn. App. at 754.
The hospital claims that Danielson failed to prove that he suffered an
adverse employment action. We disagree. An adverse employment action is “[a]
change in employment conditions . . . a demotion or an adverse transfer, or a
hostile work environment.” Id. at 746 (citation omitted). Whether an employee
7 The hospital insists in their reply brief that they have not conceded that Danielson
engaged in a “protected activity.” But the hospital does not dispute that Danielson’s expressions at the board meeting were a protected activity, either in their motion for summary judgment, their motion for judgment as a matter of law, or in their opening brief. Whether or not they concede the matter, it is not one in serious dispute.
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suffered an adverse employment action is a question for the jury unless any
reasonable juror could reach only one conclusion. See id. at 747 (holding that a
transfer that caused an employee to lose a newer van and cell phone benefits
could allow a reasonable juror to conclude the employee had suffered an adverse
employment action).
In March 2020, the hospital initiated an investigation into Danielson’s
disclosure of the COVID status of some employees in violation of HIPAA. The
hospital then expanded the investigation into whether Danielson treated
employees differently based on race or gender.
In July 2020, the hospital informed Danielson that, based on the
investigation findings, they recommended that Danielson participate in a “360
review of [his] leadership” and work with an executive leadership coach. Danielson
testified that he knew from experience that the hospital used these tools to “push
[employees] out.” Danielson also testified that at the same time the hospital
recommended the coaching, they demoted him from a director role to an advisory
role. Danielson’s testimony of the expanded investigation and demotion could lead
a jury to conclude that Danielson suffered an adverse employment action.
In response, the hospital points to testimony that the 360 review and
leadership coach were not a punishment and that the letter stating that Danielson’s
role was advisory was a clarification instead of demotion. Such evidence was for
the jury to consider when they determine the factual question of whether Danielson
suffered an adverse employment action. See Alonso, 178 Wn. App. at 747. This
court should not substitute its judgment for that of the jury. Gorman, 176 Wn. App.
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No. 87793-3-I/22
at 87.
The hospital next claims that Danielson did not present evidence of
retaliatory animus or of a causal link between the protected activity and the alleged
adverse employment action. We disagree.
The causal link for a retaliation claim is usually supported by circumstantial
evidence, since an “‘employer is not apt to announce retaliation as his motive.’”
Cornwell, 192 Wn.2d at 411 (quoting Wilmot v. Kaiser Alum. & Chem., 118 Wn.2d
46, 69, 821 P.2d 18 (1991)).
Danielson believed that his demotion was “retaliation for . . . speaking up at
a board meeting.” In response, the hospital points to evidence that Danielson had
been vocal about racial inequities in the healthcare system for several years before
the incident at the board meeting, all without any alleged retaliation. They also
point to Danielson’s testimony that he was encouraged by leadership to speak
candidly at the board meeting. Again, all of this evidence is for the jury, not this
court, to weigh. Cornwell, 192 Wn.2d at 412-13 (holding that “to avoid summary
judgment on causation, the employee must show only that a reasonable jury could
find that retaliation was a substantial factor in the adverse employment decision.”).
But the circumstantial evidence that Danielson was demoted after he accused the
hospital of racism in its budgeting decisions is substantial evidence supporting the
jury’s verdict. Gorman, 176 Wn. App. at 87.
To rebut the retaliation claim, the hospital points to Danielson’s testimony
that they were obligated to investigate allegations of Danielson’s misconduct. But
if the employer presents evidence of a “legitimate, nondiscriminatory reason for
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the adverse employment action,” the plaintiff need only present evidence that
retaliation was a substantial factor. Scrivener v. Clark Coll., 181 Wn.2d 439, 446,
334 P.3d 541 (2014). Since an employer can be “motivated by multiple purposes,”
the employee does not need to disprove the “employer’s articulated reasons” to
meet the substantial factor burden. Id. at 447.
To show that retaliation could be a substantial factor, an employee may rely
on evidence that the employer knew of the employee’s protected action before the
employee was subjected to the adverse employment action. Cornwell, 192 Wn.2d
at 413. Danielson met his burden of production by testifying that within months of
the board meeting, the hospital deployed tools to “push [him] out.” This evidence
would allow the jury to infer that retaliation was a substantial factor, even if the
hospital also had legitimate reasons. Scrivener, 181 Wn.2d at 447. It was for the
jury to weigh whether to believe Danielson’s assertion.
Finally, the hospital relies on the unpublished case Smith v. City of Seattle,
No. 84351-6-I, slip op. at 19 (Wash. Ct. App. Dec. 4, 2023) (unpublished),
https://www.courts.wa.gov/opinions/pdf/843516.pdf, to argue that Danielson must
show that the hospital “departed from its policies and procedures” when it
investigated him. We hold that Danielson’s testimony that the “investigation into
whether or not [he] had disclosed personal information about Covid, was suddenly
including all these other assessments of [himself]” is substantial evidence that the
hospital’s investigation had departed from its standard procedure.
The jury’s role is to “determine the true reason for the action because the
record contains reasonable but competing inferences of both discrimination and
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No. 87793-3-I/24
nondiscrimination.” Rice v. Offshore Sys., Inc., 167 Wn. App. 77, 90, 272 P.3d
865 (2012). It is not our role. Since a reasonable juror could infer that the
employer’s stated reasons were pretextual, the court was correct not to grant the
motion for a directed verdict on the retaliation claim. See id. The court did not err
in entering judgment based on the verdict.
C. Remittitur
Finally, the hospital argues that the court abused its discretion when it
refused to remit the $21 million verdict. We disagree.
The court’s statutory authority to remit a verdict is based in RCW 4.76.030,
which states that, if the court finds the jury’s damages award “to be so excessive
or inadequate as unmistakably to indicate that the amount thereof must have been
the result of passion or prejudice,” the court may “order a new trial or may enter an
order providing for a new trial unless the party adversely affected shall consent to
a reduction or increase of such verdict.”
“‘An appellate court will not disturb an award of damages made by a jury
unless it is outside the range of substantial evidence in the record, or shocks the
conscience of the court, or appears to have been arrived at as the result of passion
or prejudice.’” Bunch v. King County Dep't of Youth Servs., 155 Wn.2d 165, 175,
116 P.3d 381 (2005) (quoting Bingaman v. Grays Harbor Cmty. Hosp., 103 Wn.2d
831, 835, 699 P.2d 1230 (1985)). “A damages award ‘shocks the conscience’ if it
is ‘flagrantly outrageous and extravagant.’” Pendergrast v. Matichuk, 189 Wn.
App. 854, 868, 355 P.3d 1210 (2015) (internal quotation marks omitted) (quoting
Bunch, 155 Wn.2d at 179).
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No. 87793-3-I/25
The trial court, having witnessed the testimony of emotional distress, is in
the best position to determine whether the testimony supports the amount of
damages. Hill v. GTE Directories Sales Corp., 71 Wn. App. 132, 140, 856 P.2d
746 (1993). We therefore review the trial court’s refusal of remittitur for abuse of
discretion. Bunch, 155 Wn.2d at 176.
In our republic, the jury is essential in determining the value of noneconomic
damages, which is a question of fact. Id. at 179. There is a strong presumption in
favor of a jury’s award. Id. at 173. “[E]motionally laden testimony . . . regarding
the emotional distress and mental anguish” is evidence supporting a large verdict
of noneconomic damages. Wuth v. Lab. Corp. of Am., 189 Wn. App. 660, 704,
359 P.3d 841 (2015). A substantial length of time experiencing discrimination is
also evidence in support of a large damages award. Bunch, 155 Wn.2d at 180
(holding that a six-year period of employment discrimination is substantial and
supports a large award of noneconomic damages).
Danielson sought only noneconomic damages for “emotional distress,
anxiety, humiliation, and embarrassment[.]” At closing argument, he suggested “a
range of $15 to $20 million” for the damage that he experienced “over 21 years.”
Substantial evidence supports the jury’s award. Danielson worked for 21
years in what the jury determined to be a hostile work environment. He testified at
trial that the hospital had caused “great mental strain, changes in the way [his]
heart functions, and changes in the way [he] eat[s] and sleep[s].” He also testified
that he had stopped practicing medicine because the “personal wound” affected
his “sense of [his] capacity” to work with the patients. This testimony is substantial
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No. 87793-3-I/26
evidence supporting the verdict. The amount is not flagrantly outrageous
considering the length of time in the hostile work environment. See id.
For the court to disturb the jury award despite substantial evidence, the
record must “unmistakably indicate[] that the verdict is not actually based on that
substantial evidence but instead on some improper consideration that gives rise to
passion or prejudice, or that otherwise shocks the court's conscience.” Coogan v.
Borg-Warner Morse Tec Inc., 197 Wn.2d 790, 814, 490 P.3d 200 (2021).
The hospital claims that the verdict was based on the alleged errors
addressed supra. Since we find no error on review, no alleged error was the
improper basis for passion or prejudice.
The hospital also argues that Danielson incited passion and prejudice when
the court improperly allowed him to “tell the jury that [the hospital] should be ‘held
to account’ for systemic racism[.]” We read no improper comment in the record.
The hospital argues that in Danielson’s closing argument, he invited the jury
to make “a greater impact” on systemic racism, as opposed to holding the hospital
accountable for the harassment that Danielson personally experienced. But in
context, Danielson invited the jury to hold “Seattle Children’s Hospital, as an
institution, accountable for this harm and for their inaction and their action that has
profoundly harmed Ben Danielson.” (Emphasis added.)
The hospital makes a similar argument about a comment in Danielson’s
closing rebuttal, in which he stated that if the jury did not hold the hospital
accountable, “racism will continue to be alive and well.” Again, in context, the
comment is not improper. Danielson argued:
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No. 87793-3-I/27
“[Y]ou’re the ones who will decide if Seattle Children[’]s is going to
be held to account. Money does not fix racism . . . But if you let those
facts cause you to bring an award back that is insufficient to account
for the damage that Dr. Danielson has dealt with over 21 years at
OBCC, 21 years—if your verdict does not bring accountability for
what Seattle Children[’]s did, what they knew, what they should have
known, what they did, and what they failed to do in that time period,
then I guarantee you racism will continue to be alive and well.” 8
(Emphasis added.) Both of the allegedly improper comments, when reviewed in
context, are arguments inviting the jury to return a verdict that compensates
Danielson for the harm that he experienced.
Finally, even if the language at closing argument could have caused some
passion or prejudice in the jury to hold the hospital accountable for all racism, the
jury was instructed that the value of damages should “reasonably and fairly
compensate [Danielson].” We presume the jury followed the court’s instructions.
State v. Emery, 174 Wn.2d 741, 766, 278 P.3d 653 (2012).
This court can therefore not hold upon review that the jury’s award was
“unmistakably” based on passion or prejudice. Coogan, 197 Wn.2d at 814. We
find no abuse of discretion. 9
8 Although the hospital objected to the first comment in closing argument, it did not
object to this comment in the rebuttal, or request a curative instruction. A party waives review of an allegedly improper comment if they do not timely object. Collins v. Clark County Fire Dist. No. 5, 155 Wn. App. 48, 97, 231 P.3d 1211 (2010). This is especially true when, as in this case, “the trial court instructs the jury that arguments are not evidence and that argument not supported by evidence is to be disregarded.” Wash. State Physicians Ins. Exch. & Ass'n v. Fisons Corp., 122 Wn.2d 299, 334, 858 P.2d 1054 (1993). The hospital therefore may have also waived the argument that Danielson’s comments during rebuttal improperly sparked passion or prejudice.
9 The court granted Danielson’s request for attorney fees under RCW 49.60.030
in the amount of $2,068,582.49. The hospital challenges the award of fees on the grounds that the verdict itself must be reversed. Since we affirm the judgment, we also affirm the attorney fee award.
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No. 87793-3-I/28
III. CONCLUSION
We affirm the trial court’s order.
WE CONCUR:
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