Opinion
No. 51281-1-I.
Filed: February 17, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Snohomish County. Docket No: 01-2-05192-8. Judgment or order under review. Date filed: 10/04/2002. Judge signing: Hon. Joseph Thibodeau.
Counsel for Appellant(s), William F. Tri, Jelsing Tri West Andrus PLLC, 2926 Colby Ave, Everett, WA 98201-4011.
Counsel for Respondent(s), J. Robert Leach, Attorney at Law, PO Box 5397, Everett, WA 98206-5397.
Vickie Kay Norris, Attorney at Law, PO Box 5397, Everett, WA 98206-5397.
Joseph Filetto became disabled as the result of a stroke. He returned to work as a sales manager for his employer, State Roofing, Inc., but was only able to do so with the assistance of his wife, a non-employee. Eventually, State Roofing terminated Filetto's employment on grounds of inability to perform the essential functions of his job and misconduct. Filetto sued State Roofing for employment discrimination. The trial court granted summary judgment in favor of State Roofing. We affirm.
FACTS
State Roofing, Inc. is a Washington corporation that sells and installs residential roofing. Its major shareholders and officers are Lance and Nancy Smith, and Brad and Brenda Smith. Lance and Nancy Smith, president and chief financial officer of State Roofing, respectively, have managed and overseen State Roofing since its incorporation in 1978. In March 1996, State Roofing hired Joseph FiIletto to develop a sales force and marketing program operating out of its new Everett division. Filetto's responsibilities and duties included hiring and firing sales staff at the Everett office, conducting sales meetings with salesmen, responding to customers' questions, collecting on problem accounts, advertising, marketing, and distribution of leads to the sales representatives. Initially, Filetto received 2 percent of net good business, against which he received a $2,000 per week draw. His benefits also included the use of a leased company car. About eight months after he was employed, State Roofing increased Filetto's commission to 2 percent up to $250,000 and 3 percent of net good business exceeding $250,000 each month, and increased his weekly draw to $2,500.
Following a massive stroke in October 1999, Filetto spent several weeks in the hospital. He was physically disabled from the stroke, unable to drive a car for several months, unable to speak at all for seven months, and thereafter able to speak only with difficulty. He was not cognitively impaired. State Roofing kept Filetto on its payroll during his recuperation.
Filetto's driver's license was restored on May 31, 2000.
Filetto gradually resumed his duties at State Roofing in January 2000, but was only able to do so with the assistance of his wife, Patricia Salvaggio. Lance and Nancy Smith allowed Salvaggio to assist Filetto.
State Roofing alleges that following Filetto's stroke, several employees lodged complaints against Filetto, alleging sexual harassment, subversive activities, and claiming that his volatile personality led him to engage in retaliatory and hostile behavior towards others in the work environment. State Roofing employees complained that Filetto had sexually harassed them and created a hostile work environment prior to his stroke, and that he continued to do so after his stroke. Filetto disputes the veracity of these allegations and alleges that State Roofing improperly relied upon them in deciding to terminate his employment.
In May 2000, Filetto was transferred to State Roofing's main office in Monroe. The parties dispute the reason Filetto was transferred. State Roofing states that Filetto was transferred because of his misconduct. Filetto alleges that he was transferred as retaliation after an argument between himself and Misty Rogers, the telemarketing manager in the Everett office. He also alleges that it was in response to his argument with Rogers, that Rogers and Cami Vernal, State Roofing's finance manager, both submitted written statements to State Roofing alleging that before his stroke, he had sexually harassed them, had consumed alcohol during the work day, and had violated State Roofing's proprietary interests. Also in May 2000, Lance and Nancy Smith asked Filetto to sign a disciplinary notice. The notice stated that Filetto agreed to abide by its terms and conditions, which included the following:
5. Filetto agrees that he will refrain from any behaviors which could be interpreted as sexually harassing or unprofessional in further conduct with employees. Filetto further agrees that he will refrain from any behaviors which could be interpreted as retaliatory towards employees who have registered complaints regarding his conduct.
6. Filetto will refrain from consuming alcoholic beverages during his work day. This is including, but not limited to, the lunch hour.
. . . .
8. Should Filetto violate any of the above conditions of continued employment, further discipline may occur, including termination.
The parties dispute what Nancy Smith told Salvaggio about the disciplinary notice. Filetto claims he was told that he would be terminated if he did not sign the notice and that by signing the notice he was not agreeing to being demoted. Nancy Smith denies that she told Filetto he would be terminated if he did not sign the notice; rather, she claims that she told him he would be terminated if he did not `go along with the terms that we were allowing him to remain [as] an employee.'
Upon Filetto's return to work following his stroke, Salvaggio requested that all communications to Filetto be routed through her in order not to upset Filetto.
In October 2000, State Roofing eliminated Filetto's 3 percent commission rate on sales exceeding $250,000. The parties dispute the reason for the change in commission rate. Salvaggio claims that Nancy Smith informed her that the 3 percent rate would be restored when Filetto's speech returned. Nancy Smith claims that the reduction was because sales were slowing and because Filetto no longer performed all of his duties. She also claims that Filetto had agreed to the commission reduction shortly before he suffered his stroke. Filetto denies ever having agreed to the commission reduction prior to his stroke.
State Roofing terminated Filetto's employment in early March 2001. The parties dispute State Roofing's motivation for terminating his employment. In his declaration in reply to defendant's motion for summary judgment, Filetto claimed that State Roofing terminated his employment because of his disability and based on erroneous information that Mike Farina, the company's leading salesman, had provided to the Smiths. Filetto maintains that Farina fabricated his allegations of Filetto's poor job performance, retaliatory behavior, and subversion largely because Farina wanted Filetto's job. State Roofing alleges that Filetto was suspended based on information from Farina and terminated for acts of disloyalty, insubordination, and violation of company policy.
State Roofing alleges Filetto was suspended on March 8, 2001 and that his employment was terminated about a week later. Filetto alleges he was not suspended, but terminated on March 8, 2001.
In his declaration, Farina stated that he contemplated leaving the company because of his unhappiness with what he perceived as Filetto's retaliatory behavior towards him.
Filetto and Salvaggio timely filed suit alleging employment discrimination under the Washington Law Against Discrimination (WLAD). The trial court granted State Roofing's motion for summary judgment and denied Filetto's counter-motion for preliminary relief. Filetto filed a motion for reconsideration, which the court denied. Filetto appeals.
The court stated in its findings that it was `satisfied that the plaintiff was handicapped and the employer gave reasonable accommodations, however the court is also satisfied that there was a valid basis to terminate this employee at will. . . .'
State Roofing initially filed a cross-appeal, but moved for dismissal in its respondent's brief.
ANALYSIS I. Standard of Review
We review a grant of summary judgment de novo, engaging in the same inquiry as the trial court. Youngblood v. Schireman, 53 Wn. App. 95, 99, 765 P.2d 1312 (1988). Summary judgment is appropriate `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving part is entitled to a judgment as a matter of law.' CR 56(c). `The facts and all reasonable inferences therefrom must be considered in the light most favorable to the nonmoving party.' Nivens v. 7-11 Hoagy's Corner, 133 Wn.2d 192, 197-98, 943 P.2d 286 (1997). `Summary judgment should rarely be granted in employment discrimination cases.' Sangster v. Albertson's, Inc., 99 Wn. App. 156, 160, 991 P.2d 674 (2000). However, if a plaintiff employee fails to establish a prima facie case of discrimination, the defendant employer is entitled to prompt judgment as a matter of law. Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 181, 23 P.3d 440 (2000).
A motion for reconsideration is `addressed to the sound discretion of the trial court, whose judgment will not be reversed absent a showing of manifest abuse.' Perry v. Hamilton, 51 Wn. App. 936, 938, 756 P.2d 150 (1988). `A trial court abuses its discretion when it exercises it in a manifestly unreasonable manner or bases it upon untenable grounds or reasons.' Wagner Dev., Inc. v. Fidelity and Deposit Co. of Maryland, 95 Wn. App. 896, 906, 977 P.2d 639 (1999).
We review questions of law de novo. Mains Farm Homeowners Ass'n v. Worthington, 121 Wn.2d 810, 813, 854 P.2d 1072 (1993).
II. Employment Discrimination
Under WLAD, an employer may not `discharge or bar any person from employment because of . . . any sensory, mental, or physical disability.' RCW 49.60.180(2). Generally, Washington courts analyze employment discrimination cases under the evidentiary burden-shifting protocol set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), as amended by Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 180, 185, 23 P.3d 440 (2000), as amended on denial of reconsideration. Under the McDonnell Douglas test, Filetto must first prove a prima facie case of discrimination. Hill, 144 Wn.2d at 181.
Under the remainder of the McDonnell Douglas test, if the employee proves a prima facie case of discrimination, a "legally mandatory, rebuttable presumption' of discrimination temporarily takes hold,' and the burden shifts to the employer to present evidence suggesting a nondiscriminatory reason for its failure to accommodate. Hill, 144 Wn.2d at 181 (quoting Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 n. 7, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)); Swinford v. Russ Dunmire Oldsmobile, Inc., 82 Wn. App. 401, 413-14, 918 P.2d 186 (1996). `This is merely a burden of production, not of persuasion.' Hill, 144 Wn.2d at 181. "If the [employer] fails to meet this production, the plaintiff is entitled to an order establishing liability as a matter of law." Hill, 144 Wn.2d at 181-82 (quoting Kastanis v. Educ. Employees Credit Union, 122 Wn.2d 483, 490, 859 P.2d 26, 865 P.2d 507 (1993)). However, if the employer sustains its burden, the employee must then demonstrate that the reasons given by the employer are pretext for discrimination. Swinford, 82 Wn. App. at 414. In Hill, Washington adopted the `[h]ybrid-pretext' standard articulated in Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147-48, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000), explaining that `while a McDonnell Douglas prima facie case, plus evidence sufficient to disbelieve the employer's explanation, will ordinarily suffice to require determination of the true reason for the adverse employment action by a fact finder in the context of a full trial, that will not always be the case.' Hill, 144 Wn.2d at 185. We do not reach these issues here because Filetto fails to establish a prima facie case of discrimination.
An employer who discharges an employee for a discriminatory reason faces a disparate treatment claim, while an employer who fails to accommodate an employee's disability faces an accommodation claim. Pulcino v. Federal Express Corp., 141 Wn.2d 629, 640, 9 P.3d 787 (2000). Filetto presents a hybrid claim alleging both disparate treatment and accommodation violations.
A. Disparate Treatment
To make out a prima facie case of disparate treatment, Filetto must show that he: `(1) was within the protected group; (2) was discharged; (3) was replaced by a person outside the protected group; and (4) was qualified to do the job.' Kastanis, 122 Wn.2d at 490; McDonnell Douglas, 411 U.S. at 802.
The parties do not contest that Filetto was disabled as a result of his stroke. Nor do they dispute the first three prongs of the McDonnell Douglas test. Rather, Filetto asserts that he also fulfilled the fourth prong because he was `adequately performing the essential functions of his job as sales manager for State Roofing with the assistance of his wife . . .' We therefore first inquire whether Filetto meets the fourth prong of the McDonnell Douglas test; that is, whether he was qualified to do his job.
A disabled individual is qualified for an employment position if, with or without reasonable accommodation, he `can perform the essential functions of the employment position' at issue. Davis v. Microsoft Corp., 149 Wn.2d at 521, 533, 70 P.3d 126 (2003) (quoting 42 U.S.C. § 12111(8)). `The term `essential functions' is derived from the WLAD's federal counterpart, the Americans with Disabilities Act (ADA), and it has been defined in the regulations of the federal Equal Employment Opportunity Commission (EEOC) as follows: `The term essential functions means the fundamental job duties of the employment position of the individual with a disability holds or desires. The term `essential functions' does not include the marginal functions of the position.'' Davis, 149 Wn.2d at 533 (emphasis omitted) (citing 29 C.F.R. § 1630.2(n)(1) (2002)). `[A]n `essential function' is a job duty that is fundamental, basic, necessary, and indispensable to filling a particular position, as opposed to a marginal duty divorced from the essence or substance of the job.' Davis, 149 Wn.2d at 533. Filetto was hired by State Roofing to develop a sales force and marketing program. His job responsibilities included conducting sales meetings, interacting with clients and sales and marketing staff, and other duties demanding a high level of verbal communication. These duties were central to his position at State Roofing and, therefore, essential functions of his job.
The record shows that Filetto was unable to independently perform the essential functions of his job following his stroke. Filetto does not contest that he required his wife, Salvaggio's, continual assistance in order to fulfill the essential functions of his job. Salvaggio `[took] over confirming leads generated by telemarketing' and `assign[ed] them to various sales representatives.' Filetto acknowledged that while `he had difficulty communicating on his own, he was able to do so with the assistance of his wife.' Salvaggio stated in her declaration, `I was able to communicate with [my husband] and [he] would communicate to me what he wanted to be said or done and I would in turn convey that communication to whomever I was dealing with at the time on [his] behalf.' At least one other individual at State Roofing performed another of the duties central to Filetto's position. Nancy Smith stated that her husband, Lance Smith, now ran sales meetings formerly run by Filetto. Based on the record, we conclude that Filetto was unable to perform the essential functions of his job. He therefore does not meet the fourth prong of the McDonnell Douglas test. Accordingly, he fails to establish a prima facie case of discrimination.
Filetto asserts that the trial court erred in applying the McDonnell Douglas burden-shifting test because that analysis is applicable only when circumstantial evidence alone is available. He maintains that the direct evidence test discussed in Kastanis should apply here because he has provided direct evidence of State Roofing's discriminatory intent. In Kastanis, the Washington Supreme Court followed the federal courts in recognizing that as an alternative to the McDonnell Douglas test, an employee may establish a prima facie case of discrimination `by showing direct evidence of discriminatory intent.' Kastanis, 122 Wn.2d at 491; Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985).
Washington courts generally use the McDonnell Douglas burden-shifting protocol for evaluating motions for summary dismissal and judgment as a matter of law in employment discrimination cases where the plaintiff lacks direct evidence of discriminatory intent. McDonnell Douglas Corp., 411 U.S. 792. `The McDonnell Douglas elements `depart from the usual rules on burden of production in that they require a response from the defendant before the plaintiff has made a case sufficient to go to the jury. Even though they have been referred to as [a] plaintiff's `prima facie case,' . . . they do not make a case sufficient for submission to the jury.' Carle v. McChord Credit Union, 65 Wn. App. 93, 99, 827 P.2d 1070 (1992).
Filetto asserts that four statements allegedly made by Nancy Smith regarding his employment and disability constitute direct evidence of discrimination: (1) a statement to Salvaggio that State Roofing would not provide Filetto with a company car until his speech improved; (2) a statement to Salvaggio that State Roofing was eliminating Filetto's 3 percent commission of sales exceeding $250,000 each month because he `did not yet have his speech back;' (3) a statement to a State Roofing employee to the effect of, `well how long could we go on with [Salvaggio] as sales manager;' and (4) a statement to a State Roofing employee that Filetto was fired because she and Lance Smith `did not believe that Filetto was able to communicate adequately with the sales representative.'
We do not apply the direct evidence test, however, because regardless of the test used, the WLAD's prohibition against discrimination does not apply if a disability prevents proper performance of the job. Clarke v. Shoreline Sch. Dist. No. 412, 106 Wn.2d 102, 720 P.2d 793 (1986). The record demonstrates that Filetto was unable to perform the essential functions of his job. He is thus unable to establish a prima facie case under either the McDonnell Douglas test or the Kastanis test.
B. Accommodation Violation
Filetto also contends that State Roofing failed to reasonably accommodate his disability.
To establish a prima facie case of disability discrimination because State Roofing failed to reasonably accommodate his disability, Filetto must show that he: `(1) has a disability; (2) can perform the essential functions of the job; and (3) was not reasonably accommodated.' Dedman v. Washington Pers. Appeals Bd., 98 Wn. App. 471, 478, 989 P.2d 1214 (1999). `The employee has the burden of showing that a specific reasonable accommodation was available to the employer at the time the employee's physical limitation became known and that accommodation was medically necessary.' Pulcino, 141 Wn.2d at 643. `To accommodate, the employer must affirmatively take steps to help the disabled employee continue working at the existing position or through attempts to find a position compatible with her limitations.' Griffith v. Boise Cascade, Inc., 111 Wn. App. 436, 442, 45 P.3d 589 (2002). However, an employer is not required to reassign an employee to a position that is already occupied, to create a new position, or to eliminate or reassign essential job functions. Pulcino, 141 Wn.2d at 644 (citing MacSaga v. County of Spokane, 97 Wn. App. 435, 442, 983 P.2d 1167 (1999)). Although generally, whether an employer made reasonable accommodation is a question of fact for the jury; `certain types of requests have been found unreasonable as a matter of law.' Pulcino, 141 Wn.2d at 644.
The parties do not dispute that Filetto had a disability. Nor does Filetto assert that following his stroke he was able to communicate personally at the level necessary to continue to fulfill the `essential functions' of his job. Rather, he argues that he was able to perform those essential functions with Salvaggio's assistance. Filetto also contends that compliance with the reasonable accommodations standard requires that State Roofing continue to permit another, Salvaggio, to assist him with the essential functions of his job.
This theory was rejected in Griffith, where the other person was an employee, because it amounted to a requirement that the company eliminate essential functions of the plaintiff employee's job by transferring them to be performed by another. Griffith, 111 Wn. App. at 444. An employer need not remove or modify the essential functions of a position to accommodate an employee. Griffith, 111 Wn. App. at 444 (citing Dedman, 98 Wn. App. at 485). We see no reason to distinguish between transferring essential functions to Salvaggio, who was never employed by State Roofing, and transferring essential functions to a fellow employee. It was not incumbent upon State Roofing to allow a non-employee to continue to assist Filetto by performing the essential functions of his job. As in Griffith, the accommodation proposed by Filetto was unreasonable as a matter of law. The record before the court does not show that Filetto requested an accommodation other than Salvaggio's assistance in fulfilling the essential functions of his job. Filetto is unable to independently perform the essential functions of his job. He therefore fails to meet the second prong of the reasonable accommodation test, and fails to make a prima facie case for reasonable accommodation. Dedman, 98 Wn. App. at 478.
In Griffith, an employee who became disabled argued that reasonable accommodation should be interpreted to mean that the employer should allow her to remain in her position even if assistance from other employees was required for her to fulfill the essential functions of her job. The court disagreed, and held that the employee's proposed accommodation was unreasonable as a matter of law because it amounted to requesting the employer to eliminate essential functions of the job. Griffith, 111 Wn. App. at 444.
Because Filetto's proposed accommodation is unreasonable as a matter of law, we need not reach the issue of whether it imposed an undue burden upon State Roofing. See, e.g., Griffith, 111 Wn. App. at 443 (quoting Sharpe v. Am. Tel. Tel. Co., 66 F.3d 1045, 1050 (9th Cir. 1995)) (The WLAD `does not require an employer to offer the employee the precise accommodation he or she requests. If, rather than defending the reasonableness of the accommodation it chose, [the employer] were required to prove that [the employee's] proposed accommodation would have imposed an undue burden, [the employee] would effectively be choosing the accommodation, not [the employer].').
CONCLUSION
Filetto fails to establish a prima facie case for either a disparate treatment claim or a reasonable accommodation claim. Accordingly, we conclude that the trial court did not abuse its discretion in granting State Roofing summary judgment and in denying Filetto's motion for reconsideration.
We affirm.
GROSSE and COLEMAN, JJ., concur.