Wash. Court of Appeals published opinion — 850661.pdf

Citation: Wash. Court of Appeals published opinion — 850661.pdf
Jurisdiction: Washington (state)
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Original Source: https://www.courts.wa.gov/opinions/pdf/850661.pdf ↗

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submitted with SPD’s CR 59(a) motion for reconsideration in which the Director stated he “did not
consider any allegations other than the 11 occasions of alleged retaliation detailed in Sgt. Hockett’s
second SEEC complaint.” This argument is unconvincing because such qualifying language is not
in the Director’s July 2021 determination, which found Sgt. Hockett’s complaint sufficient under
SMC 4.20.860. SPD does not explain why it waited to produce this declaration until nearly two
months after trial. The trial court did not abuse its discretion by not considering this untimely
declaration. See Wagner Dev. v. Fid. & Deposit, 95 Wn. App. 896, 906-07, 977 P.2d 639 (1999)
(trial court properly denied reconsideration because new evidence could have been discovered
using due diligence before trial).

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For the current opinion, go to https://www.lexisnexis.com/clients/wareports/.
No. 85066-1-I

occurred. This argument is refuted by the plain language of SMC 4.20.860(A)(1),

which requires only that a whistleblower complaint be filed within 180 days of “an

occurrence” alleged to constitute retaliation. Indeed, in the WLAD context,

Washington courts have disavowed a discovery rule for the accrual of hostile work

environment claims because “the 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.’” Antonius v. King County, 153 Wn.2d 256,

269-70, 103 P.3d 729 (2004) (quoting Nat’l R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 115, 122 S. Ct. 2061, 153 L. Ed. 2d 106 (2002)).

While SPD attempts to support its timeliness argument by citing to