Opinion
CASE NO. 3:12-cv-05845-RJB
11-19-2013
ANGELA CASTELLANO, Plaintiff, v. CHARTER COMMUNICATIONS, LLC a Delaware limited liability company, Defendant.
ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT'S
MOTION FOR SUMMARY
JUDGMENT, DENYING
PLAINTIFF'S MOTION TO STRIKE,
AND GRANTING IN PART AND
DENYING IN PART DEFENDANT'S
MOTION TO STRIKE
This matter comes before the court on Defendant's Motion for Summary Judgment. Dkt. 25. The court has considered the relevant documents and the remainder of the file herein.
I. RELEVANT FACTS
Introduction. Plaintiff Angela Castellano brings this lawsuit against her former employer, Defendant Charter Communications, LLC. Dkt. 1. Castellano was diagnosed with multiple sclerosis (MS) while she was employed at Charter. Dkt. 26-1, at 52. Castellano now brings state law claims, alleging that Charter discriminated against her because of her disability; failed to provide a reasonable accommodation or accessible work place; created a hostile work environment; retaliated against her; and wrongfully terminated her. Dkt. 1. She brings a federal law claim that Charter unlawfully interfered with her rights under the Family and Medical Leave Act ("FMLA"). Id.
Background/Pre-Diagnosis. Castellano began working for Charter in the early 2000s as a Retention Specialist at Charter's Vancouver call center. Dkt. 26-1, at 9-12. During her employment, Castellano suffered symptoms resulting from MS, which was not diagnosed until May of 2010. Dkt. 26-1, at 24-25; Dkt. 26-1, at 37. Prior to diagnosis, Castellano requested leave on multiple occasions and Charter never denied her requests. Dkt. 26-1, at 24-25; Dkt. 26-1, at 37.
Castellano also began experiencing financial difficulties during this time, filing for Chapter 13 bankruptcy on December 29, 2009. Dkt. 27-1, at 3. In her bankruptcy schedules, Castellano indicated that she had no contingent or unliquidated claims of any nature. Dkt. 27-2, at 13.The bankruptcy court confirmed her bankruptcy plan on April 6, 2010. Id. at 4.
The court has taken judicial notice of Castellano's Chapter 13 bankruptcy proceedings pursuant to Charter's request. See Dkt. 27.
Diagnosis. On May 14, 2010, Castellano was diagnosed with MS by Dr. Edward Kim and Dr. Marlene Dietrich. Dkt. 32, at 3, 28. Following her diagnosis, Castellano and her doctors submitted Charter's FMLA paperwork. Dkt. 26-1, at 53. Dr. Dietrich informed Charter that Castellano's condition was permanent; that Charter should provide Castellano a comfortable chair; and that Castellano may need leave "at least" once every six months for doctor's appointments but "maybe more often if symptoms worsen." Dkt. 32, at 31. Dr. Dietrich noted that "[e]xacerbations are unpredictable" and that Castellano "may need up to one week off every three months." Id. The form shows that it was faxed first on June 29, 2010, and then "refaxed" on July 2, 2010, and again on July 6, 2010. Id.
Medical Leave. On July 13, 2010, a Charter representative requested that Castellano talk with her doctor because she had been absent more than her doctor had estimated. Dkt. 32, at 81. On July 19, 2010, Dr. Edward Kim then filled out an additional medical certification, which provided that Castellano's condition "affects essential job functions, including typing, walking to meetings and other functions requiring extended walking." Dkt. 32, at 37. "Overtime work demands may be a difficult stressor and challenge for her" and Castellano "should not be held to the same compliance standards as other employees." Dkt. 32, at 38. Dr. Kim warned that leave "is difficult to predict as symptom/problem development may fluctuate, necessitating different time periods away from job." Id. Dr. Kim estimated that Castellano may require medical leave once or twice per week, with each leave lasting anywhere from one day to two weeks. Id.
On August 12, 2010, Charter sent a fax to Dr. Kim asking Dr. Kim to clarify how much overtime Castellano could work on a weekly basis and how many weeks, months, or years that Castellano would require medical leave. Dkt. 32, at 36. Dr. Kim responded on August 19, 2010, informing Charter that his opinions regarding her ability to work each day are subjective. Dkt. 32, at 39. Dr. Kim said, "It is difficult to be as specific as you request and I cannot directly quantify hours or days of need when the condition and symptoms may change or worsen due to a multitude of factors." Id. Dr. Kim attempted to respond to Charter's inquiries by reiterating that overtime appeared to be a difficult stressor for Castellano and that a set schedule would be preferred. Id. In response to Charter's second clarification, Dr. Kim provided that "[i]t is not possible . . . to directly predict how many absences she may need for medical reasons in a week or a month . . . Some reasonable degree of flexibility and understanding is appropriate. Her need for this accommodation may be indefinite, as her condition is a chronic lifelong neurologic condition that is often progressive." Id.
During this time, Castellano accumulated attendance "points" due to her absences despite turning in Charter's medical paperwork. Dkt. 26-1 at 52-53. Castellano feared that she would lose her job because she had accumulated approximately seventeen points and employees were usually fired after six points. Dkt. 26-1 at 53. Charter finally approved Dr. Kim's latest evaluation. Id. Charter then "backdated everything," removing all but three of Castellano's attendance points. Dkt. 26-1, at 57-59.
Castellano Meets with HR. On January 20, 2011, Castellano met with Charter's Human Resources Generalist, Debbie Schofield, to discuss issues relating to Castellano's medical leave. Dkt. 32, at 5, 74. Charter's Human Resources Director, Tom Rothengass, joined the conversation and, according to Castellano, she had the following exchange with him:
He says, "Are your doctors real doctors?" . . . And then he says, "What are you still doing here?" And I said I wanted to continue to use my brain and walk. And he said to me, "You have a sidewalk in front of your house. Why don't you walk out there." And then he says, "Also, you still drive. Why don't you go to a park, walk around there. I recommend you do anything, but continue working here. Don't make me make that choice for you." And then he says, "What's the difference between MS and cancer?" And I said, "I don't know. Maybe I'll live. I don't know."Dkt. 26-1, at 64-65. Schofield then had Castellano sign an agreement titled "Understanding of Providing Appropriate and Timely Documentation," to which Castellano objected because of the strict deadlines the document imposed on her doctors. Dkt. 32 at 6, 71. The form was not a form that all employees had to sign, but, according to Castellano, she was required to sign the form before Charter would discuss her accommodation needs. Dkt. 32, at 6.
Castellano claims that Rothengass' treatment of her was so bad that she did not want to come to work. Dkt. 32, at 8. Castellano went home in tears after the meeting. Dkt. 32, at 6-7. On January 25, 2011, Castellano filed a formal complaint against Rothengass for his behavior. Dkt. 32, at 6. A Human Resources employee from Charter's corporate office followed up on the complaint, directing the call center not to use the "Understanding of Providing Appropriate and Timely Documentation" form and recommending disciplinary action for Rothengass due to his comments. Dkt. 32, at 77. There is no elaboration in the record on the type of disciplinary action recommended.
Castellano's doctor ordered her to take one month of leave because of the stress from the claimed intimidation and harassment, which Charter granted. Dkt. 32, at 8; Dkt. 26-1, at 66.
Castellano's Return From Leave. After Castellano returned from leave in late February, Castellano did not receive wages for four weeks because Charter's deductions for health insurance coverage exceeded her paycheck. Dkt. 32, at 10; Dkt. 26-1, at 67. Castellano went to Human Resources and Charter resolved the issue by crediting her on future paychecks. Dkt. 32, at 10; Dkt. 26-1, at 67.
Castellano also encountered workstation issues relating to her ability to print documents. Id. Rothengass was terminated about three days after Castellano returned from her month of leave. Dkt. 32, at 8; Dkt. 25, at 8. According to Charter, Rothengass' termination was due "in part" to the incident about which Castellano had complained. Dkt. 26-1, at 74.
Performance Evaluation. On April 22, 2011, Castellano received her 2010 performance evaluation. Dkt. 32, at 2. As of 2009, Castellano's performance ratings all met or exceeded performance standards. Id. 2010 marked the first year in which Castellano received a poor performance evaluation; she received a "D" for "Does Not Meet Performance Expectations" in "Compliance" and "Average Handle Time." Id. Castellano claims that her bonus was reduced because of this evaluation. Id. Castellano also claims that two non-disabled employees with performance issues received higher bonuses. Dkt. 32, at 3.
June through December of 2011. In June of 2011, Castellano filed an FMLA form with Charter, further documenting her need for an ergonomically appropriate chair and for extra time to walk between meetings. Dkt. 32, at 54. Dr. Dietrich also said that Castellano "needs handicapped accessible doorways!" Id.
On July 26, 2011, as Castellano exited the building during a fire drill, she heard an employee behind her say, "Uh-Oh, we're going to burn." Dkt. 26-1, at 60. Castellano mentioned the comment to a co-worker, who then reported it. Dkt. 26-1, at 61. Charter followed up with Castellano but Castellano did not know who had made the statement. Id.
On September 15, 2011, Charter had a team meeting in which Management passed out customer compliments to everyone except for Castellano. Dkt. 32, at 11. According to Castellano, she had received customer compliments that Charter could have shared. Id.
On September 21, 2011, Castellano's new supervisor criticized Castellano for working during her break. Dkt. 32, at 12. Castellano testified that "[i]n all ten years that I was there, I never had that happen." Id.
On September 22, 2011, Castellano's supervisor announced at the start of a meeting that Castellano would need to leave two minutes early because of how long it takes Castellano to get back to her seat. Dkt. 32, at 12. Castellano felt humiliated. Id. With two minutes left in the meeting, the supervisor again announced in front of everyone that Castellano needed to leave. Id. The same thing happened at a meeting on September 28, 2011. Id. On the following day Castellano complained to HR but was told to discuss the issue with her supervisor. Dkt. 26-1, at 13. The supervisor's solution was to dismiss everyone two minutes early. Id. Castellano again felt humiliated and mocked. Id.
On October 19, 2011, Castellano was not allowed to keep a 6-inch fan on her desk without a note from her doctor. Dkt. 32, at 13.
On October 27, 2011,Castellano's chair malfunctioned when she sat down. Dkt. 32, at 13. Castellano could not get out of the chair without assistance. Id.
On October 29, 2011, Dr. Dietrich completed another health provider questionnaire that reiterated Castellano's need for handicapped accessible doorways and an ergonomically appropriate chair, along with a small fan for her desk and a water bottle. Dkt. 32 at 56.
On November 23, 2011, Castellano's chair again malfunctioned and Castellano fell to the ground. Dkt. 32, at 14.
In December 2011, Castellano was disciplined because she had exceeded the number of absences per week prescribed under the approved intermittent leave accommodation. Dkt. 26-1, at 80. Castellano challenged the corrective action and Charter rescinded it. Id.
Castellano Leaves Charter. Castellano claims that she reached a point where she could no longer perform her job because of the lack of accommodation and harassment. Dkt. 32, at 14. She claims that the hostile environment heightened the symptoms of her condition. Id. The last day on which Castellano worked for Charter was January 17, 2012. Dkt. 26-1, at 91-92. On January 20, 2012, Castellano submitted a written letter of resignation, indicating that her resignation was "due to stress and medical." Dkt. 26-7, at 2.
On January 24, 2012, Liberty Mutual, the third-party administrator of Charter's Short Term Disability Plan, sent Castellano a letter approving her claim for benefits "based on [her] inability to perform the duties of [her] job.' Dkt. 26-8, at 2. In February of 2012, a Charter representative sent an e-mail to Castellano, stating that "Charter remains committed to working to accommodate [Castellano's] medical condition." Dkt. 26-1, at 95. In response, Castellano testified that she could never feel comfortable about returning to Charter. Dkt. 26-1, at 95-96. Castellano claims that Charter never reached out to her with additional information about continuing to work before or after she left employment. Dkt. 32, at 14. Castellano further claims that she did not receive any notices or information about open positions or positions that she was qualified to perform. Id.
II. PROCEDURAL HISTORY
On March 16, 2011, Castellano filed a charge of discrimination with the EEOC. Dkt. 26-9, at 2. On May 9, 2013, the EEOC closed its file on Castellano's charge and issued her notice of right to sue. Dkt. 26-10, at 2.
On September 20, 2012, Castellano filed the instant lawsuit in this Court. Dkt. 1. Charter filed this motion for summary judgment on October 8, 2013, arguing that all of Castellano's claims are meritless. Dkt. 25. Castellano filed a response on October 28, 2013, and moved to strike e-mails attached to Charter's declaration on grounds of hearsay, foundation and the collateral source rule. Dkt. 28. Charter filed its reply on November 1, 2013, responding to the merits of Castellano's response, responding to Castellano's motion to strike, and also moving to strike certain declarations filed by Castellano with her response. Dkt. 33.
III. STATEMENT OF THE ISSUES
There are seven issues before the court. The court must decide (1) whether to strike declarations and exhibits from Castellano's response and Charter's reply; (2) whether judicial estoppel bars Castellano's claims; and whether to grant summary judgment against Castellano on (3) her hostile work environment claim, (4) her disparate treatment claim, (5) her reasonable accommodation claim, (6) her retaliation claim, and/or (7) her FMLA interference claim.
IV. MOTIONS TO STRIKE
In her response, Castellano moved to strike e-mails attached to Charter's counsel's declaration on grounds of hearsay and lack of foundation, any declarations offered by Charter in its reply, and any reference to disability payments that Castellano has received. Dkt. 28, at 2. Castellano's motion should be denied. The court has noted Castellano's objections and will accord Charter's counsel's declaration the appropriate weight. Regardless, the court has not relied on the e-mails in its analysis. Also, Charter also did not offer any declarations in its reply. And, finally, for the purposes of this summary judgment motion the court has not considered or referenced any disability payments Castellano may have received.
In its reply, Charter moved to strike the following: the declarations of Stanley Horak, Kristen Dillenburg, and Angela Castellano to the extent they offer improper opinion testimony on legal conclusions; the declaration of Dillenburg because she was not disclosed in either Castellano's initial disclosures or her discovery responses; various portions of these declarations "because they lack foundation, personal knowledge, or are speculative, offer improper opinion, and/or constitute hearsay"; certain paragraphs of the Castellano declaration that are inconsistent with her deposition testimony; and Castellano's statements that are unsupported by the record. Dkt. 33, at 3-4.
Charter's motion to strike Horak's and Castellano's declarations is denied. The court has noted these objections, as well as the relevance of these items, and the court will accord them the proper weight. The court has distinguished and disregarded Horak's legal opinions but has taken note of the authority he cited. The court also notes the objections regarding Castellano's declaration and will accord it the proper weight.
Charter also moved to strike Dillinburg's declaration. Castellano has not filed a surreply. For the purposes of this summary judgment, Dillenburg's declaration should be stricken. See Fed. R. Civ. P. 37.
V. DISCUSSION
A. Legal Standard on Summary Judgment
Summary judgment is proper only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The moving party is entitled to judgment as a matter of law when the nonmoving party fails to make a sufficient showing on an essential element of a claim in the case on which the nonmoving party has the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1985). There is no genuine issue of fact for trial where the record, taken as a whole, could not lead a rational trier of fact to find for the non moving party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (nonmoving party must present specific, significant probative evidence, not simply "some metaphysical doubt."). See also Fed. R. Civ. P. 56(e). Conversely, a genuine dispute over a material fact exists if there is sufficient evidence supporting the claimed factual dispute, requiring a judge or jury to resolve the differing versions of the truth. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 253 (1986); T.W. Elec. Service Inc. v. Pacific Electrical Contractors Association, 809 F.2d 626, 630 (9th Cir. 1987). "[A]t summary judgment, the judge must view the evidence in the light most favorable to the nonmoving party." T.W. Elect. Service Inc., 809 F.2d at 630.
B. Castellano's Claims Not Barred by Judicial Estoppel
Charter argues that Castellano's claims are barred by the doctrine of judicial estoppel because Castellano never declared her potential claims as an asset in her ongoing bankruptcy proceeding. Dkt. 25, at 13-15. Thus, the issues before the court are, first, whether Castellano had a duty to disclose her disability discrimination claims in her bankruptcy, and, if so, whether Castellano's failure to do so bars her claim under the doctrine of judicial estoppel.
"In the bankruptcy context, a party is judicially estopped from asserting a cause of action not raised in a reorganization plan or otherwise mentioned in the debtor's schedules or disclosure statements." Hamilton v. State Farm Fire & Cas. Co, 270 F.3d 778, 782 (9th Cir. 2001) (citing Hay v. First Interstate Bank of Kalispell, N.A., 978 F.2d 555, 557 (9th Cir.1992). "[I]f the debtor has enough information . . . prior to confirmation to suggest that it may have a possible cause of action, then that is a known cause of action such that it must be disclosed." Id. quoting (In re Coastal Plains, Inc., 179 F.3d 197, 208 (5th Cir. 1999).
Castellano has raised an issue of fact sufficient to preclude summary judgment by pointing out that her claims against Charter did not arise until after she had filed for bankruptcy. Castellano's bankruptcy plan was confirmed on April 6, 2010, and her claims did not arise until after she was diagnosed with MS in May of 2010. Dkt. 27-1, at 4; Dkt. 32, at 3. Castellano did not have a duty to disclose her discrimination claims in her initial reorganization plan or debtor's schedules because she was, at that time, unaware of her potential discrimination claims. For the same reason, Castellano did not have a duty to amend her plan after confirmation to include her claims against Charter. See Johnson v. Si-Cor Inc., 107 Wn. App. 902, 910-11, 28 P.3d 832 (2001).
These facts prevent the doctrine of judicial estoppel from barring Castellano's claims. Charter relies on Hamilton to argue that Castellano's duty to disclose potential claims continued for the duration of the bankruptcy proceeding. Dkt. 33, at 5 (citing 270 F.3d at 782). However, Hamilton posits that judicial estoppel is only proper when the plaintiff had knowledge of claims prior to the bankruptcy plan's confirmation. The plaintiff in Hamilton actually threatened litigation before filing for bankruptcy. Hamilton, 270 F.3d at 781.
Not one of the cases cited by Charter involved claims that arose after the bankruptcy plan's confirmation, as they did in the case at hand. See Hamilton, 270 F.3d at 781 (plaintiff filed for bankruptcy after threatening litigation); In re Coastal Plains, Inc., 179 F.3d 197 (plaintiff filed suit one week after filing for bankruptcy, and plaintiff's claims arose out of the business dispute that caused the bankruptcy); Hay, 978 F.2d at 557 (plaintiff "learned of the facts that led to the discovery of [plaintiff's] claims sometime during the month preceding the month in which [plaintiff's] reorganization plan was confirmed."); Allers-Petrus v. Columbia Recovery Grp., LLC, 2009 WL 1160061 (W.D. Wash. Apr. 29, 2009) (plaintiff filed suit in September of 2008 and the bankruptcy plan was confirmed in November of 2008); Love v. Tyson Foods, Inc., 677 F.3d 258, 260-61 (5th Cir. 2012) (plaintiff filed suit in May of 2008 and the bankruptcy plan was confirmed in September of 2008); Balthrope v. Sacramento County HHS, 398 Fed. Appx. 285 (9th Cir. 2010) (court relied on Hamilton to apply judicial estoppel but the opinion contains insufficient information to determine when the dismissed claims arose).
Accordingly, the doctrine of judicial estoppel should not bar Castellano's claims against Charter.
C. Issues of Fact Preclude Dismissing Castellano's Hostile Work Environment Claim
Charter argues that Castellano's hostile work environment claim does not meet the required elements. Castellano must prove the following: (1) that she was disabled within the meaning of RCW 49.60.180; (2) that the harassment was unwelcome; (3) that it was because of the disability; (4) that it affected the terms or conditions of employment; and (5) that it was imputable to the employer. Robel v. Roundup Corp., 148 Wn.2d 35, 44-45 (2002). Charter does not dispute the first, second or third elements. Instead, Charter argues that the harassment was not severe enough to alter the conditions of her employment. Dkt. 25, at 20. Alternatively, Charter argues that any harassment was not imputable to Charter. Dkt. 25, at 20-21.
As for the severity of the harassment, "a satisfactory finding on this element should indicate '[t]hat the conduct or language complained of was so offensive or pervasive that it could reasonably be expected to alter the conditions of plaintiff's employment.'" Robel, 148 Wn.2d at 46 (quoting 6A WASH. PRAC., Wash. Pattern Jury Instr. Civ. WPI 330). Castellano has raised issues of fact that preclude finding against her on this element. Charter itself identified multiple instances of humiliation that, contrary to its argument, raise an issue of fact as to whether the harassment was severe enough to alter the conditions of Castellano's employment. The exchange between Rothengass and Castellano is one such instance. Castellano went home in tears afterwards and her doctors ordered her to take one month of leave due to the claimed harassment and humiliation. Castellano has met her burden in raising an issue of fact as to this element of a hostile work environment claim.
As for whether the harassment is imputable to Charter, Castellano has raised multiple issues of fact. In applying the fifth element, "the jury must find either that (1) 'an owner, manager, partner or corporate officer personally participate[d] in the harassment' or that (2) 'the employer . . . authorized, knew, or should have known of the harassment and . . . failed to take reasonably prompt and adequate corrective action.'" Robel, 148 Wn.2d at 47 (quoting Glasgow v. Georgia-Pacific Corp., 103 Wn.2d 401, 407 (1985)).
An issue of fact exists as to whether Rothengass was a manager. As the Director of Human Resources, a rational trier of fact could find that Rothengass had the authority to affect Castellano's wages, hours, and working conditions, which would be sufficient to establish Rothengass as a manager. See Robel, 148 Wn.2d at 48 n.5. After all, Castellano reported to Human Resources whenever she had issues regarding her wages, hours, or working conditions.
There are also issues of fact as to the adequacy and promptness of Charter's corrective actions. Charter asserts that its termination of Rothengass in itself defeats Castellano's claim of harassment. However, Castellano has raised an issue of fact as to whether Rothengass was terminated "promptly" and whether his termination was even a corrective action. Rothengass remained employed when and after Castellano returned to work, which was more than a month after the incident. In addition, Charter's investigation into the incident did not suggest Rothengass be terminated, and Charter itself denied to Castellano that the termination was solely a result of Castellano's complaint. See Dkt. 26-1, at 74.
These issues of fact preclude granting summary judgment in Charter's favor.
D. Issues of Fact Preclude Summary Judgment on Castellano's Disparate Treatment Disability Claim
Charter also argues for summary judgment on Castellano's disparate treatment disability claim. Dkt. 25, at 15-18. To survive summary judgment, Castellano must set forth a prima facie case of discrimination. Id. A prima facie case requires Castellano to prove that (1) she has a disability, (2) she suffered an adverse employment action because of her disability, (3) she did satisfactory work prior to the adverse employment action, and that (4) she was replaced by a non-disabled person. Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 150 (2004); Cluff v. CMX Corp. Inc., 84 Wn. App. 634, 638, 929 P.2d 1136 (1997). If the employee meets the burden of establishing a prima facie case, the burden of proof shifts to the employer to produce a legitimate, nondiscriminatory explanation for the adverse employment action. Riehl, 152 Wn.2d at 150. The ultimate burden then shifts back to the employer to prove that the employee's stated reasons are in fact pretext for discriminatory intent. Id. (citing Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 182 (2001)).
Issues of fact prevent finding against Castellano on her prima facie case. First, Charter does not dispute that Castellano has a disability. As to the second element, Castellano testified that she was harassed to the point of resigning from Charter, and she provided evidence that Charter's Human Resources director asked her to resign because of her disability. Moreover, a hostile work environment can amount to an adverse employment action, and thus the issues of fact regarding Castellano's hostile work environment claim also preclude summary judgment on Castellano's disparate treatment claim. See Robel, 148 Wn.2d at 74 n.24.
Third, Castellano received all positive performance reviews up until 2010, the year in which she alleges the harassment and disparate treatment began. This indicates satisfactory job performance up until that point. It remains an issue of fact as to whether Castellano performed her job adequately enough from May 2010 through 2012 to satisfy the third element. There is sufficient evidence for a rational trier of fact to conclude that any unsatisfactory performance was only a result of Charter's discrimination, hostile work environment, and/or lack of accommodation.
Fourth, the evidence is inconclusive as to whether Castellano was replaced by a non-disabled person. However, relevant federal cases may be looked to for guidance in construing and applying Washington's antidiscrimination laws. See Dean v. Municipality of Metro. Seattle-Metro, 104 Wn.2d 627, 636 (1985) (citing Glasgow v. Georgia Pac. Corp., 103 Wn.2d 401 (1985)). In Title VII cases, the fourth element of a prima facie case of discrimination may be satisfied by evidence that similarly situation non-protected employees were treated more favorably. See Tuttle v. Metro. Gov't of Nashville, 474 F.3d 307, 317 (6th Cir. 2007). Indeed, in its motion for summary judgment Charter states that the fourth element of a prima facie case requires the following: "[Plaintiff] was treated less favorably than an individual without a disability." Dkt. 25, at 15. Castellano's evidence points to multiple instances where she was treated less favorably as a disabled employee, such as being required to fill out the "Understanding of Providing Appropriate and Timely Documentation" form. Moreover, evidence suggests that Rothengass demonstrated hostility towards Castellano because of her disability, and asked her to resign because of her disability. These instances raise an issue of fact as to the fourth and final element of a prima facie case.
Accordingly, Castellano has provided evidence raising issues of fact regarding her prima facie case. Furthermore, assuming Charter can prove its adverse employment actions were nondiscriminatory, Castellano's evidence provides sufficient grounds for a rational trier of fact to find pretext. Rothengass' actions were directly related to Castellano's disability and seemed to be fueled by his frustration with her disability. In addition, all of Castellano's claims of discrimination arose after she was diagnosed with MS and relate to her requests for medical leave and disability accommodations. When viewed in the light most favorable to Castellano, the evidence is sufficient to show pretext for the purposes of precluding summary judgment. Therefore, Charter's motion for summary judgment on Castellano's disparate treatment claim should be denied.
E. Issues of Fact Preclude Summary Judgment on Castellano's Failure to Accommodate Claim
Charter argues that Castellano's failure to accommodate claim fails as a matter of law because Castellano was not a qualified to perform the essential functions of her position, Charter met its duty to provide reasonable accommodation, and because Castellano did not cooperate in the interactive process. Dkt. 25, at 18-20.
To survive summary judgment, Castellano must prove (1) that she had a disability; (2) that she was qualified to perform the essential functions of her job; (3) that she gave notice to Charter of her disability; and (4) that the employer failed to affirmatively adopt measures that were available to the employer and medically necessary to accommodate the disability. Riehl v. Foodmaker, Inc., 152 Wash.2d 138, 145 (2004) (quoting Hill, 144 Wn.2d at 192-93). "Generally, the best way for the employer and employee to determine a reasonable accommodation is through a flexible, interactive process." Frisino v. Seattle Sch. Dist. No. 1, 160 Wn. App. 765, 779, 249 P.3d 1044 (2011) (citing RCW 49.60.040(7)(d)).
Charter only disputes elements two and four. Dkt. 25, at 19-20. As to the second element, Castellano was qualified to perform the essential functions of her job prior to diagnosis, proven by her positive performance reviews up until that point. In addition, a rational trier of fact could conclude that any unsatisfactory performance even after diagnosis was a result of Charter's discrimination, hostile work environment, and lack of accommodation.
In regards to the fourth element, Castellano's doctors recommended and Castellano requested handicap accessible doorways and an ergonomically appropriate chair. Charter failed to accommodate both requests. Castellano also requested a parking spot near the entryway, which Charter denied despite Castellano's medical reports documenting her impaired mobility. Dkt. 32, at 10. Castellano also testified that Charter ignored her doctor's recommendations that Charter space out their meetings. Dkt. 32, at 10.
Castellano has also raised an issue of fact as to Charter's commitment to the interactive process. Castellano and her doctors repeatedly submitted medical certifications noting the unpredictability of Castellano's condition. Nonetheless, Charter repeatedly required more documentation and clarification regarding her disability and her requested accommodations.
Summary judgment on Castellano's accommodation claim should not be granted.
F. Castellano's Retaliation Claim Survives Summary Judgment.
Charter argues that Castellano is unable to meet the essential elements of a retaliation claim, and that it is entitled to summary judgment because Castellano did not specifically address retaliation in her response. Dkt. 25, at 23; Dkt. 33, at 13. To establish a retaliatory discharge claim, Castellano must prove that: (1) she engaged in statutorily protected activity; (2) an adverse employment action was taken; and (3) the there is a causal link between the activity and the adverse action. Milligan v. Thompson, 110 Wn. App. 628, 638, 42 P.3d 418 (2002) (citing Francom v. Costco Wholesale Corp., 98 Wn. App. 845, 861-62, 991 P.2d 1182 (2000)). The burden shifting scheme is the same as with discrimination claims. Id. Satisfying these elements sets forth a prima facie case of discrimination, and the burden then shifts to the employer to show that it acted on a legitimate, nondiscriminatory basis for its actions. Id. If satisfied, the ultimate burden shifts back to the employee to establish pretext. Id.
First, RCW 49.60.210 provides that it is unfair practice for an employer to discharge or discriminate against any person because she has opposed discrimination. Thus, by filing a complaint against Rothengass for a "hostile work environment," Castellano engaged in a statutorily protected activity sufficient to satisfy the first element of a prima facie case. See. Dkt. 32, at 73.
Second, it has already been established that an issue of fact remains as to whether there was an adverse employment action. Finally, in light of the relation between the potential adverse employment action and Castellano's disability, issues of fact remain as to the link between the statutorily protected activity, Castellano's disability, and her termination from employment.
The above pretextual analysis applies again, precluding summary judgment even if Charter is able to establish a nondiscriminatory reason for the adverse employment action. The alleged discrimination occurred after Castellano's diagnosis and related directly to her disability. Castellano also no longer works at Charter and provides evidence of harassment and discrimination that may have contributed to the termination of her employment. For these reasons, Castellano has provided sufficient evidence to survive summary judgment on her retaliation claim.
Charter argued in its reply that summary judgment should be granted on Castellano's retaliation claim because she did not provide "any response." Castellano's evidence and arguments are sufficient to preclude summary judgment, as the above analysis indicates.
G. Summary Judgment Should be Granted on Castellano's FMLA Interference Claim
Charter argues that there is no evidence that it violated Castellano's FMLA rights. Dkt. 25, at 25. The FMLA provides job security to employees who must be absent from work because of their own illnesses, to care for family members who are ill, or to care for new babies. Bailey v. Southwest Gas Co, 275 F.3d 1181, 1185 (9th Cir. 2002). It is unlawful for an employer to interfere with, restrain, or deny an employee's exercise of FMLA rights. Id.; 29 USC § 2615(a)(1). The necessary elements of a FMLA interference claim are: 1) an entitlement to FMLA leave; 2) an adverse action by plaintiff's employer, which interfered with plaintiff's right to take FMLA leave; and 3) a showing that the employer's adverse action was related to the exercise, or attempt to exercise, FMLA rights. Bachelder v. Am. W. Airlines, Inc., 259 F3d 1112, 1124-26 (9th Cir 2001). Courts have been reluctant to read the FMLA as allowing unscheduled and unpredictable, but cumulatively substantial, absences. See Collins v. NTN-Bower Corp., 272 F.3d 1006, 1007 (7th Cir. 2001); Mauder v. Metropolitan Transit Authority, 446 F.3d 574 (5th Cir. 2006).
Here, Charter does not dispute the first element.. Instead, Charter argues that it did not interfere with Castellano's FMLA leave. Castellano argues that Charter interfered by creating "insurmountable paperwork deadlines," "losing her paperwork, requiring clarifications that were not needed, and repeating unnecessary paperwork after her diagnosis was permanent." Dkt. 28, at 16. However, Castellano has not provided evidence showing that Charter's paperwork deadlines were actually insurmountable or that Charter lost Castellano's paperwork. Even assuming Castellano had proved these claims, Castellano has not shown sufficient interference with her FMLA rights. Charter is allowed to seek clarification and authentication of medical certification. See 29 C.F.R. § 825.307. And, most notably, Charter never denied Castellano leave while they were seeking this clarification and authentication. Castellano has not produced sufficient evidence to proceed on the second element of her FMLA interference claim. For that reason, summary judgment should be granted on Castellano's FMLA interference claim.
H. Conclusion
Castellano's claims should not be barred by judicial estoppel. Summary judgment as to Castellano's hostile work environment claim, disparate treatment claim, failure to accommodate claim, and retaliation claim should be denied. Summary judgment as to Castellano's FMLA interference claim should be granted.
VI. ORDER
Therefore, it is hereby
ORDERED that Defendant's Motion for Summary Judgment (Dkt. 25) is GRANTED IN PART and DENIED IN PART: Defendant's motion for summary judgment on Plaintiff's hostile work environment claim, disparate treatment claim, reasonable accommodation claim, and retaliation claim is DENIED. Defendant's motion for summary judgment on Plaintiff's FMLA interference claim is GRANTED.
Plaintiff's Motion to Strike (Dkt. 28) is DENIED. Defendant's Motion to Strike (Dkt. 33) is GRANTED IN PART and DENIED IN PART: Defendant's motion to strike the declarations of Stanley Horak and Angela Castellano is DENIED. Defendant's motion to strike the declaration of Kristin Dillenburg (Dkt. 29) is stricken to the extent stated above.
The Clerk is directed to send uncertified copies of this Order to all counsel of record and to any party appearing pro se at said party's last known address.
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ROBERT J. BRYAN
United States District Judge