Dallas Barnes, App. V. State Of Washington, Washington State University, Resps.

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DALLAS BARNES,
Appellant,
THE STATE OF WASHINGTON,
through WASHINGTON STATE
UNIVERSITY,
Respondent.
NO. 70801-5-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: August 11, 2014
Leach, J. — Dallas Barnes appeals the dismissal of his lawsuit against
Washington State University (WSU or University) for racial discrimination and
retaliation after an adverse jury verdict. 	Barnes challenges a number of the trial
court's evidentiary rulings and the court's rejection of his proposed special verdict
form. 	Because the trial court did 	not abuse its discretion when 	making the
challenged evidentiary rulings and properly instructed the jury, we affirm.
FACTS
Dallas Barnes received a BA, MA, and PhD in sociology from Washington
State University in Pullman, Washington. 	In 1969, he began working at the WSU
Pullman campus. 	In the early 1980s he became the coordinator of the Academic
Development Program, which focused on the recruitment, advising, and retention
of provisionally admitted and nontraditional students. 	In 1986, the University
reorganized all the student advising programs, merging several programs and

NO. 70801-5-1/2
creating the Student Advising and Learning Center (SALC). 	Barnes applied for
the position of SALC director twice but did not receive an interview. 	In 1992,
Barnes filed 	complaints of employment discrimination and 	retaliation with the
Equal Employment Opportunity Office and Office of Human Development and
Human 	Rights 	at 	WSU, 	as 	well 	as 	the 	Equal 	Employment 	Opportunity
Commission (EEOC) in Seattle. 	In June 1994, the EEOC determined insufficient
evidence existed to support Barnes's allegations.
In September 1994, Barnes filed a lawsuit against the University, alleging
race and 	age discrimination and 	retaliation. 	In December 1996, the 	parties
settled the lawsuit. 	As part of the settlement, Barnes received $150,000 and a
position as assistant branch campus director of student affairs at the Tri-Cities
campus of WSU.
Barnes began working at the Tri-Cities branch campus in 1997. 	In 1999,
WSU appointed Pat Wright as interim director and then as director of the Office
of Student Affairs. 	The University did not advertise the position. 	Barnes believed
he was more qualified than Wright to serve as director.
In 2000, 	Chancellor Larry James relieved 	Barnes of certain 	duties as
disability 	coordinator, 	following 	an 	unsatisfactorily 	resolved 	accommodation
complaint by a visually impaired student. 	Beginning in 2006, Barnes received a
series 	of 	marginal 	or 	poor 	performance 	reviews 	from 	several 	different
supervisors.

NO. 70801-5-1/3
In 2007, WSU Tri-Cities became a four-year institution. 	As part of this
transition, the campus formalized counseling services, and Barnes's supervisors
instructed 	him 	to 	stop 	personally 	counseling 	students 	and 	staff. 	A 	2004
performance review had noted that Barnes "works well with students" and that
Barnes "spends a great deal of time working with students that need counseling
or someone to be an advocate for them." 	Barnes had a license as a registered
counselor from the Washington State Department of Health from 1995 until 2010.
In 	2007, 	the 	University 	dismissed 	Pat 	Wright 	and 	three 	others 	for
fraudulently 	reporting enrollment numbers. 	Barnes was not implicated in the
wrongdoing. 	Following Wright's dismissal, the University appointed an interim
director, who served for six to eight months. 	In 2008, the University advertised
the permanent director position, but Barnes did not apply. 	In June 2008, Jaime
Contreras began work as director.
In 	July 2008, 	Contreras and Tri-Cities Chancellor Vicky Carwein 	sent
Barnes a 	letter 	advising 	him of his assignment to the 	position 	of associate
director 	of 	student 	services 	and 	special 	projects. 	His 	new 	duties 	mainly
consisted 	of 	academic 	advising 	for 	student 	retention, 	reinstatement, 	and
community outreach liaison work. 	The letter explicitly instructed Barnes to stop
providing 	mental 	health, 	behavioral, 	or 	personal 	counseling 	services to 	any
person.
On June 11, 2010, Barnes filed this lawsuit against the University for racial
discrimination and retaliation.

NO. 70801-5-1/4
In 	December 2010, 	Anna 	Mitson, 	another employee 	in the 	Office 	of
Student Affairs, 	complained 	to 	the 	University's 	Office 	for 	Equal 	Opportunity
(OEO) that Contreras, her supervisor, made racial and ethnic references toward
her and others. 	Mitson alleged that Contreras referred to an African American
employee as "Kunta Kinte" and "Thurgood Marshall" and to himself using several
derogatory racial or ethnic names.1 	An OEO report in March 2011 concluded
that Contreras's derogatory references to Mitson, 	himself, 	and others violated
University policy prohibiting discrimination and sexual harassment.2 	Contreras
resigned from his position shortly thereafter, and the University replaced him with
an interim director. 	University administrators did not speak to Barnes about the
interim director position.
In 	September 	2011, 	Mitson 	and 	two 	other 	Office 	of 	Student Affairs
employees filed suit against the University and Contreras, alleging a hostile work
environment, racial and sexual discrimination, and retaliation.3 	The parties later
settled the lawsuit.
In spring 2012, Vice Chancellor Richard Pratt transferred Barnes from the
Office of Student Affairs to the Career Development Center. 	Barnes told Pratt
that he considered this to be a demotion.
1 The 	"Kunta 	Kinte" and 	"Thurgood 	Marshall" 	comments 	referred 	to
Barnes, though Contreras never made such a reference in Barnes's presence.
Barnes was not aware of Contreras's racial comments about him until he read
the 2011 OEO report.
2 OEO investigators did not interview Barnes or mention him in the report.
3 Curtiss v. State of Washington, No. 11-2-02187-1 (Benton County Super.
Ct., Wash.).

NO. 70801-5-1/5
Barnes's lawsuit went to trial on August 1, 2012. 	The University moved to
exclude (1) testimony from Barnes's expert witness, Marc Brenman; (2) a 2005
report 	coauthored 	by Brenman on 	racially charged 	incidents at the 	Pullman
campus; 	(3) the OEO report addressing Mitson's complaint against Contreras;
(4) evidence concerning 	Mitson's lawsuit against the 	University; 	and 	(5) the
monetary sum of Barnes's 1996 settlement agreement with the University. 	The
trial court granted the motions. 	On August 13, 2012, the jury returned a verdict
for the University on both of Barnes's claims.
Barnes appeals.
STANDARD OF REVIEW
We review the trial court's evidentiary decisions for abuse of discretion.4 A
court abuses its discretion when its decision is manifestly unreasonable or based
upon untenable grounds or reasons.5 We review de novo alleged errors of law in
a trial court's jury instructions.6
ANALYSIS
Expert Testimony
Barnes argues that the trial court erred by excluding the testimony of Marc
Brenman. 	Brenman 	is a 	former director of the Washington 	Human 	Rights
Commission and cochair of a 2005 task force that investigated and reported on
4 Philippides v. Bernard, 151 Wn.2d 376, 393, 88 P.3d 939 (2004); State
v. Finch, 137 Wn.2d 792, 810, 975 P.2d 967 (1999); Reese v. Stroh, 128 Wn.2d
300, 310, 907 P.2d 282 (1995).
s Mayer v. Sto Indus.. Inc., 156 Wn.2d 677, 684, 132 P.3d 115 (2006);
State ex rel. Carroll v. Junker, 79 Wn.2d 12, 26, 482 P.2d 775 (1971).
6 State v. Porter, 150 Wn.2d 732, 735, 82 P.3d 234 (2004).

NO. 70801-5-1/6
racially charged incidents among students at the WSU 	Pullman campus. 	The
court excluded 	Brenman's testimony as 	overly speculative, 	not 	helpful, 	and
invading the province of the jury. 	Barnes made an offer of proof that Brenman
would 	testify 	to 	"the 	closed 	nature 	of 	academia, 	the 	subjective 	nature 	of
employment decisions in universities, the pattern of discrimination at WSU, the
meaninglessness of the title 'Special Projects,' and the futility of Dr. Barnes's
applying for Director of Student Affairs." 	Barnes argues that although he "could
supply his own testimony on some of the topics, the jury would have been more
impressed by testimony from an expert."
Under ER 702 and 703, expert testimony is admissible if the witness's
expertise is supported by the evidence, his opinion is based on facts or data
reasonably relied on by the professional community, and his testimony is helpful
to the trier of fact.7 "'Courts generally interpret possible helpfulness to the trier of
fact broadly and will favor admissibility in doubtful cases.'"8 	However, a court
may in its discretion exclude expert testimony that concerns concepts within the
commonsense understanding of jurors.9 	Trial courts have broad discretion in
7 Deep Water Brewing, LLC v. Fairway Res. Ltd., 152 Wn. App. 229, 271,
215 P.3d 990 (2009).
8 State v. Groth, 163 Wn. App. 548, 564, 261 P.3d 183 (2011) (internal
quotation marks omitted) (quoting Moore v. Hagge, 158 Wn. App. 137, 155, 241
P.3d 787 (2010)).
9 State v. Rafav, 168 Wn. App. 734, 782-83, 790, 285 	P.3d 83 (2012)
(affirming 	trial 	court's 	exclusion 	of expert 	opinion 	on 	psychology of false
confessions 	as 	invading 	the 	province 	of 	the 	jury 	and 	well 	within 	the
commonsense understanding of jurors; court's determination "at least debatable"
and therefore not abuse of discretion), review denied, 176 Wn.2d 1023 (2013),
cert, denied, 134 S. Ct. 170 (2013).

NO. 70801-5-1/7
determining the admissibility of expert testimony under ER 702, 	and 	absent
abuse of that discretion, 	a 	reviewing 	court does 	not 	disturb the trial court's
ruling.10
Barnes 	relies 	heavily 	on 	a 	Sixth 	Circuit case, 	Davis 	v. 	Combustion
Engineering, Inc.,11 in which the court held that the trial court did not abuse its
discretion in admitting expert testimony to support the plaintiff's claim of age
discrimination. 	He also cites other cases affirming a trial court's decision to admit
expert testimony but cites no case disapproving a trial court's exclusion of expert
testimony. 	The University cites other state and federal cases affirming a trial
court's decision to limit or exclude expert testimony in areas "readily within the
comprehension and ability of the jury."12
Barnes contends that "[t]he average person or layperson has no insight"
into subjects such 	as the closed 	nature of academia, subjective employment
decisions, and patterns of discrimination. 	But he concedes that he was able to
testify about these issues. 	Also, he does not demonstrate that they fall outside
10 Philippides, 151 Wn.2d at 393.
11 742 F.2d 916, 919-20 (6th Cir. 1984).
12 See, e.g., Curtis v. Okla. City Pub. Sch. Bd. of Educ. 147 F.3d 1200,
1219 (10th Cir. 	1998) (concluding 	jury could determine for itself whether
recruitment plan was evidence of retaliation); Barfield v. Orange County, 911
F.2d 644, 651 n.8 (11th Cir. 1990) (holding that opinion about whether plaintiff
was victim of discrimination was properly excluded as not helpful to trier of fact);
Kotla v. Regents of Univ. of Cal., 115 Cal. App. 4th 283, 293, 8 Cal. Rptr. 3d 898
(2004) (holding testimony of industrial psychologist on employment retaliation did
not assist the jury in fact-finding and "created an unacceptable risk that the jury
paid unwarranted deference to [the expert's] purported expertise when in reality
he was in no better position than they were to evaluate the evidence concerning
retaliation").

NO. 70801-5-1/8
the commonsense understanding of jurors. 	Barnes points to the holding in Davis
that 	the 	trial 	court's 	admission 	of 	the 	expert 	testimony 	was 	"not 	clearly
erroneous"13 but does not demonstrate that a court's decision to exclude similar
expert testimony is an 	abuse of discretion. 	The trial court did not abuse its
discretion by excluding Brenman's testimony.
Defense Opening Statement and the Open Door Doctrine
In its opening statement, the State referred several times to Chancellor
Larry James's appointment of Pat Wright as director of student services and said
James appointed Wright because she "was an out-front person. 	Someone who
interacted well with people and 	had 	the 	background to do the job." 	Barnes
contends that this created the false impression that Wright was more qualified
than he for the director position and that the court should have permitted him to
correct this "misrepresentation" by introducing letters of reference "available to
the WSU administration, showing him to be personable and beloved by others."
In its opening statement, the State also referred to Contreras's hiring the
year after the transition of WSU Tri-Cities to a four-year university: 	"And the
freshman class came in. 	And by all accounts, Contreras did an excellent job."
Barnes 	contends 	that 	this 	statement 	also 	opened 	the 	door 	to 	his 	rebuttal
evidence and that the trial court erred by refusing to allow Barnes to "correct the
statement by presenting testimony of witnesses to Jaime Contreras' horrible
performance as a Director of Student Affairs and racist, sexist, and religiously
13 Davis, 742 F.2d at 919.
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NO. 70801-5-1/9
arrogant world 	view." 	Specifically, 	Barnes assigns error to the 	trial 	court's
decision 	to 	exclude 	testimony 	about 	Mitson's 	lawsuit 	and 	the 	internal
investigation that preceded Contreras's resignation.
"It is well settled 	that any 	party 	may, 	in opening 	statement, 	refer to
admissible evidence expected to be presented at trial."14 	Under the open door
doctrine, evidence a party introduces may open the door for the other party to
present evidence that would not otherwise be admissible.15 	Once a party has
raised a material issue, the opposing party 	is generally permitted to explain,
clarify, or contradict the evidence.16
Though the trial court did not admit Barnes's letters of recommendation as
exhibits, Barnes responded to the State's opening statement by testifying about
the 	letters 	and 	his 	other accomplishments. 	The 	jury 	heard 	testimony 	and
weighed evidence 	of his qualifications, 	experience, 	and 	employment record.
Barnes fails to show that the exclusion of the two letters prejudiced him.
The State's narrow comment about Contreras referred to the transition of
the campus to a four-year institution and did not open the door to any and all
evidence of Contreras's behavior as a supervisor.17 	Moreover, Mitson's hostile
work environment lawsuit was not relevant and potentially confusing because it
14 State v. Whelchel, 115 Wn.2d 708, 727, 801 P.2d 948 (1990).
15 State v. Berg, 147 Wn. App. 923, 939, 198 P.3d 529 (2008), abrogated
on other grounds by State v. Mutch, 171 Wn.2d 646, 254 P.3d 803 (2011).
16 Berg, 147 Wn. App. at 939.
17 	The 	State's 	counsel 	asserted 	in colloquy that the 	purpose 	of 	his
statement was 	to show "that [Contreras] advanced 	student services 	by all
accounts, not that he was a model person or perfect in his supervision."
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NO. 70801-5-1/10
required proof of different elements than Barnes's disparate treatment action,
which did not name Contreras.
The 	court concluded that "the jurors 	have 	already 	been told 	that the
arguments and the statements of counsel are not evidence, so it does not open
the door," and "it's not appropriate for this case to include a minitrial regarding
Anna Mitson and the others who have filed a lawsuit against WSU." 	The court
did, 	however, 	exercise 	its 	discretion 	to 	allow 	testimony, 	over 	the 	State's
objection, about Contreras's racial speech targeted at himself and Barnes.18 The
trial court did not abuse its discretion.
Money Damages Sum from 1996 Settlement
At trial, 	the 	court 	admitted 	the 	1996 	settlement 	agreement 	resolving
Barnes's earlier lawsuit against the University but granted WSU's motion to strike
the words "in consideration for the sum of $150,000, paid as unspecified general
damages." 	The 	court 	stated 	in a 	letter to the 	parties, 	"I 	don't 	believe 	the
monetary amount of the 1996 settlement would be relevant to the current case."
At trial, the 	court 	reiterated, 	"I 	don't 	see 	how 	whether 	money was 	paid 	is
appropriate for the jury." 	The court did permit references to WSU's payment of
transportation and moving costs as part of the settlement.
Under ER 402, "[evidence which is not relevant is not admissible." 	Even
where evidence is relevant, "[t]he trial court has broad discretion in balancing the
18 	In 	colloquy, the court emphasized to counsel that it "was trying to
balance what would be appropriate for this jury to hear to [sic] and to balance the
testimony for both sides."
-10-

NO. 70801-5-1/11
probative value of evidence against the potentially harmful consequences that
might result from its admission."19 	Barnes does not cite any authority to support
his contention that the court erred in admitting the settlement but not the amount
of money damages paid. 	In addition, he does not demonstrate how the redaction
prejudiced him. 	Once again, the trial court did not abuse its discretion.
Testimony about Assistant Attorney General's Instructions
At trial, after eliciting Barnes's testimony about Contreras's treatment of
him, 	Barnes's counsel asked him, "Did you 	learn that the Assistant Attorney
General was demanding that you stop talking to someone?" 	The State objected
on hearsay and relevance grounds. 	At a sidebar, Barnes's counsel argued that
this testimony would demonstrate that the University retaliated against Barnes for
his 	advocacy 	for 	others. 	The 	trial 	court 	sustained 	the 	State's 	objection,
explaining, "I don't see the relevance to asking your client about this statement
by the 	Assistant 	Attorney 	General 	telling 	him 	to stop 	counseling or telling
students to bring a lawsuit against WSU." 	Barnes argues that WSU "silenced
him" because of his advocacy for others and 	that the trial court erred in not
allowing him to pursue this claim. 	However, Barnes presents no argument or
authority showing this testimony's relevance or its admissibility under a hearsay
exception. The trial court did not abuse its discretion in excluding it.
19 Lockwood v. AC&S, Inc., 109 Wn.2d 235, 256, 744 P.2d 605 (1987); ER
403.
-11-

NO. 70801-5-1/12
Special Verdict Form
Barnes proposed a special verdict form containing lines for the jury to
itemize front pay, back pay, and seven subcategories of emotional damages.
The court rejected Barnes's form and gave the jury a special verdict form with
lines for three categories: back pay, front pay, and emotional damages. 	The
court also gave the jury separate instructions defining the pay categories and
types of damages Barnes could recover, including "emotional distress, loss of
enjoyment 	of 	life, 	humiliation, 	pain 	and 	suffering, 	personal 	indignity,
embarrassment, fear, anxiety, and/or anguish." 	The court noted during the jury
instruction conference that Barnes could argue the subcategories of damages:
"the court is not precluding plaintiff from arguing those and even setting it out on
their Power Point or on the board. 	You can separate those out and talk about
each and every one of those."
During 	the 	jury 	instruction 	conference, 	the 	trial court 	pointed 	out 	to
Barnes's counsel that at a previous trial over which the trial court presided and
counsel appeared, counsel had argued exactly the opposite position regarding
itemizing emotional damages. 	Barnes contends that the trial court refused to
give the jury his special verdict form 	because his counsel previously argued
against exactly this form in a different case. 	Barnes argues that "the court must
not punish Dallas Barnes for arguments made by his counsel in another case."
"'Jury instructions are sufficient when they allow counsel to argue their
theory of the case, are not misleading, and when read as a whole properly inform
-12-

NO. 70801-5-1/13
the trier of fact of the applicable law. 	Even if an instruction is misleading, it will
not be reversed unless prejudice is shown.'"20 	We review de novo alleged errors
of law in a trial court's jury instructions,21 but we review a trial court's decision
whether to give a particular instruction to the jury for abuse of discretion.22 	This
standard also applies to questions about the number of instructions and the
specific wording of instructions.23
The 	court's 	instruction 	was 	consistent 	with 	Washington 	pattern 	jury
instructions.24 	The instructions as a whole properly informed 	the jury of the
applicable law, and Barnes had the opportunity to argue his damage theory of
the case. 	The trial court did not err or abuse its discretion in refusing Barnes's
proposed special verdict form. 	And because the jury returned a verdict for the
University, it did not need to calculate damages. 	Barnes makes no showing that
the court's refusal to give his proposed damage instruction affected the liability
verdict. 	Thus, he shows no prejudice.
20 Singh v. Edwards Lifesciences Corp., 151 Wn. App. 137, 150-51, 210
P.3d 337 (2009) (internal quotation marks omitted) (quoting 	Keller v. City of
Spokane, 146 Wn.2d 237, 249-50, 44 P.3d 845 (2002)).
21 Porter, 150Wn.2dat735.
22 Stilev v. Block, 130 Wn.2d 486, 498, 925 P.2d 194 (1996).
23 Huev. Farmbov Spray Co., 127 Wn.2d 67, 92, 896 P.2d 682 (1995).
24 6B 	David K. Wolfe, Washington Practice: Civil Jury Instruction
Handbook § 10.4, at 855, § 10.6 at 880 (2013).
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NO. 70801-5-1/14
Cumulative Error
Finally, 	Barnes 	argues 	that 	"[t]he 	Superior 	Court's 	cumulative errors
prejudiced the outcome of the trial." 	Because Barnes has failed to show any
error, his claim of cumulative error fails.25
Attorney Fees
The University has requested an award of attorney fees and costs on
appeal under RAP 18.1. 	At trial, the court awarded the University statutory fees
and costs. 	As the 	prevailing 	party, 	the 	University is entitled to recover its
statutory costs as 	provided in 	RCW 4.84.080(2) and RAP 	14.3. 	We award
statutory fees and costs upon the University's compliance with RAP 14.4.
CONCLUSION
Because the trial 	court did 	not 	abuse 	its discretion 	when 	making 	its
evidentiary rulings and properly instructed the jury, we affirm. 	We award the
University its statutory fees and costs upon compliance with RAP 14.4.
WE CONCUR:
~hufrt'eJtL/
25 See State v. Price, 126 Wn. App. 617, 655, 109 P.3d 27 (2005); State v.
Stevens, 58 Wn. App. 478, 498, 794 P.2d 38 (1990).
-14-