Opinion
No. 29243-2-II.
Filed: March 2, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of Thurston County. Docket No: 99-2-00124-6. Judgment or order under review. Date filed: 07/26/2002. Judge signing: Hon. Richard a Strophy.
Counsel for Appellant(s), Shelley L. Brandt, Cordes Brandt PLLC, 2625 Parkmont Ln SW Ste B, Olympia, WA 98502-1038.
Counsel for Respondent(s), Carrie L. Bashaw, Attorney at Law, Asst Atty Gnl Tort Clms, PO Box 40126, Olympia, WA 98504-0126.
Mary Elizabeth McKnew, Attorney at Law, 7840 Warbler Ct SE, Olympia, WA 98513-5553.
Bobby Raiford appeals the summary judgment dismissing his claims against the Office of the Administrator for the Courts (OAC) for disability discrimination under RCW 49.60.180(2) and for retaliatory discharge under RCW 49.60.210. Because Raiford has failed to raise an issue of material fact, we affirm.
Now known as Administrative Office of the Courts (AOC).
FACTS
In 1987, Raiford began full time employment with AOC as an information analyst/computer operator in its Production Services unit. The position involved weekend and evening hours and heavy lifting. But following back surgery in August 1990, he took medical leave until November 1, 1990, when he returned to work part time.
After Raiford returned to full time employment, he was injured in a fall on March 4, 1993, and went on medical leave. After two months he was still having problems with his back, but he returned to part time employment. AOC allowed him to do occasional work at home and he was in the office approximately two days a week. In July 1994, Raiford's doctor allowed him to work full time, but he did not remove restrictions on lifting and weekend work.
In May 1994, the State offered Raiford an entry level programming job that provided telecommuting options, but paid a lower salary. Raiford rejected the offer. That same month, he filed a race discrimination claim against AOC. Raiford settled this claim the next month.
See Clerk's Papers (CP) at 34 (Declaration of Mary McQueen, Administrator for AOC) ('Mr. Raiford and the [AOC] resolved his concerns about race discrimination to our mutual satisfaction. I agreed to take him out from under the supervision of the person who he believed was discriminating against him. I also agreed to reinstate some of his leave.'); CP at 143-45 (Deposition of Raiford) (Raiford affirms McQueen's statements and that he chose to withdraw his race discrimination complaint).
In August 1994, AOC transferred Raiford to a Help Desk employee position. This new position was a lateral transfer with the same salary and did not require any heavy lifting or weekend hours. Sharon Fasnacht, Raiford's supervisor, allowed Raiford to occasionally work at home on non-security tasks.
In April 1995, Raiford was in a car accident, had back surgery, and went on medical leave until October. Meanwhile, in August 1995, AOC separated the Help Desk from the Client Services Section and created a separate Help Center unit. Raiford then became a Help Center Specialist (HCS), and worked under a new supervisor. This position helps manage the statewide Judicial Information System (JIS). Because a HCS has access to confidential court files via a security password, these employees must have high level security clearance and be able to respond quickly to requests from JIS users, primarily the Washington courts.
In December 1995, Dr. Robinson, Raiford's doctor, released Raiford to work part time. This continued until April 1997, but Raiford experienced unpredictable flare ups of extreme pain in his back, and, from March 1996 to November 1996, he missed over one-quarter of his scheduled hours.
In January 1997, Raiford initiated discussions with AOC regarding full time work, asserting that his flare ups were rare and could be accommodated by normal sick leave. In April 1997, Dr. Robinson agreed to allow Raiford to work full time, subject to certain worksite accommodations. The State agreed to provide three accommodations: (1) a special ball for Raiford's back; (2) a special reclining chair; and (3) shower facilities.
The State asserts that Raiford could not decide on a ball until August 1997, that he chose not to use the chair, and that he was not interested in a shower until April 16, 1998. But he contends that a scheduled meeting with AOC to evaluate the accommodations never occurred.
Raiford was out of the office one-third of the time between June 1997 and February 1998. In April 1998, AOC terminated Raiford's employment by disability separation.
In January 1999, Raiford brought this action, asserting disability discrimination under RCW 49.60.180(2), retaliatory discharge under RCW 49.60.210, and common law claims of emotional distress and violations of public policy. AOC moved for summary judgment in December 2000. On March 12, 2001, the trial court granted partial summary judgment, dismissing Raiford's common law claims.
On March 15, 2002, AOC moved for reconsideration of the ruling denying summary judgment on the discrimination claims. It argued that there was newly discovered evidence and new case law, specifically Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 23 P.3d 440 (2001), and Davis v. Microsoft Corp., 109 Wn. App. 884, 37 P.3d 333 (2002), aff'd, 149 Wn.2d 521 (2003). After oral argument in April 2002, and based on the new evidentiary standards set forth in Hill and Davis, the trial court granted reconsideration and dismissed Raiford's statutory discrimination claims on May 3, 2002. The court subsequently denied Raiford's motion for reconsideration.
The Washington Supreme Court remanded one issue not relevant here. Davis v. Microsoft Corp., 149 Wn.2d 521, 526, 70 P.3d 126 (2003).
Raiford appeals the trial court's summary judgment ruling that dismissed his disability discrimination and retaliatory discharge claims under RCW 49.60.180(2) and RCW 49.60.210.
ANALYSIS I. Inadequacy of Appellant's Brief
Preliminarily, AOC argues that we should decline to consider Raiford's appellate arguments because he fails to cite to the record. This court's discretion in such circumstances is well established, but rarely practiced. See e.g. State v. Dennison, 115 Wn.2d 609, 629, 801 P.2d 193 (1990); Iverson v. Snohomish County, 117 Wn. App. 618, 623-24, 72 P.3d 772 (2003).
We agree with AOC's assertions that Raiford consistently failed to accurately cite to the record in his appellate brief, thereby making the State's and this court's job exceptionally difficult. We are reluctant, however, to deny Raiford his opportunity to obtain appellate review. Thus, we consider those arguments for which we can find support in the record or in the law.
II. Reconsideration of Partial Summary Judgment
Raiford first contends that the trial court erred in granting AOC's motion for reconsideration of the court's initial denial of the summary judgment motion, arguing that the motion was untimely under CR 59 and that AOC did not present new evidence or case law.
The denial of a summary judgment motion does not result in a judgment as to that claim; thus, the court's ruling is not final and is not subject to statutory time restrictions. CR 54; Shepherd v. Continental Bank, 28 Wn. App. 346, 350, 622 P.2d 1310 (1981). Consequently, upon the presentation of newly discovered evidence or case law, the trial court may exercise its discretion to reconsider issues previously raised in a summary judgment motion. State v. Scott, 92 Wn.2d 209, 212, 595 P.2d 549 (1979). We will not disturb the trial court's ruling absent a manifest abuse of discretion. State v. Henderson, 26 Wn. App. 187, 190, 611 P.2d 1365 (1980).
Here, AOC supported its reconsideration motion with newly discovered medical evidence that Raiford could work only part time in an office and with two pertinent cases, Hill and Davis, issued after the original summary judgment proceedings. The trial court considered the new evidence and case law in granting reconsideration. It did not abuse its discretion in doing so.
III. Disability Claim
Raiford contended that his medical condition required that he perform a portion of his work telecommuting from his home. But in granting summary judgment, the trial court determined that an essential function of the HCS position was the ability to work full time in the office. The court also ruled that the evidence showed that AOC made reasonable efforts to accommodate Raiford's back problems, but it could not find a way to do so without jeopardizing essential requirements of the job. Thus, the trial court concluded that Raiford failed to establish a prima facie case of disability discrimination.
The court relied on a range of declarations and depositions made by Raiford, numerous AOC employees, and Dr. Robinson, Raiford's doctor.
The court stated:
I find and conclude Mr. Raiford's position is a full-time position. . . . [G]iven the factors that I have alluded to discussed in the Hill case, I conclude that from the evidence in the record, reasonable minds could reach but one conclusion: That the job must be performed in the offices of [AOC].
The security, the access to the computer system, the PBX telephone systems . . . the need to collaborate with other help service representatives on-site, in addition to the significant cost, all satisfy me, based on what has been presented, as a matter of law, that the job must be performed on-site and cannot be performed elsewhere.
Thus, I conclude that, on reconsideration, as a matter of law, Mr. Raiford cannot show that he was qualified to perform an essential function of the job, with or without reasonable accommodation. Is that regardless of what Dr. Robinson actually said or not? It is beyond genuine dispute that Mr. Raiford could not perform the function of this or any other job without telecommuting . . . either all or a significant portion of the time. Report of Proceedings (RP) (April 19, 2002) at 64-65.
The trial court should grant summary judgment if it determines, after viewing the entire record and drawing all reasonable inferences in favor of the nonmoving party, that there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). The initial burden of demonstrating the absence of material facts rests with the moving party; the burden then shifts to the nonmoving party. Young v. Key Pharm., Inc., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). The nonmoving party's rebuttal must involve specific facts, not speculative or conclusory statements. CR 56(e); Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986). When reviewing a summary judgment we engage in the same analysis as the trial court. Wilson, 98 Wn.2d at 437.
A disability discrimination claim under RCW 49.60.180(2) involves a three part evidentiary burden. Hill, 144 Wn.2d at 180-82. A successful disability discrimination claim requires the satisfaction of all three parts. Hill, 144 Wn.2d at 186.
First, the plaintiff must establish a prima facie case that the employer failed to accommodate a reasonable accommodation request. Hill, 144 Wn.2d at 192-93; see also Davis 149 Wn.2d at 582 (relying on Hill). In other words, the plaintiff must demonstrate that `upon notice, the employer failed to affirmatively adopt measures that were available to the employer and medically necessary to accommodate the abnormality.' Hill, 144 Wn.2d at 193. An employer does not fail to reasonably accommodate, however, merely because it does not `create a new position, . . . alter the fundamental nature of the job, or eliminate or reassign essential job functions.' Pulcino v. Fed. Express Corp., 141 Wn.2d 629, 644, 9 P.3d 787 (2000). The employer must give its employee the opportunity to apply for other available jobs that may reasonably satisfy the accommodation request; the employee may not reject other jobs merely because they pay less. Pulcino, 141 Wn.2d at 644; see also Davis, 109 Wn. App. at 892 ('Reasonable accommodation is an interactive process between the employee and the employer.').
A plaintiff must also prove that (1) the employee had a sensory, mental, or physical abnormality that substantially limited his or her ability to perform the job; (2) the employee was qualified to perform the essential functions of the job in question; [and] (3) the employee gave the employer notice of the abnormality and its accompanying substantial limitations. Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 193, 23 P.3d 440 (2001).
If the plaintiff demonstrates a prima facie case by producing sufficient evidence of the employer's failure to accommodate, the employer then must provide a nondiscriminatory explanation terminating the plaintiff's employment. The third step requires the plaintiff to disprove the employer's explanation by showing that it is a pretext for discrimination. Hill, 144 Wn.2d at 181-82.
Raiford contends that he presented a prima facie case of AOC's failure to accommodate his request to work part time from home by presenting evidence (a) that his part time work at home would not pose a security risk to AOC; (b) that AOC was unreasonable when it failed to provide advanced training opportunities; (c) that Hill and Davis do not apply; and (d) that AOC misunderstood his accommodation request. AOC responds that Raiford failed to provide adequate evidence of his inability to work absent an accommodation, and he failed to identify any reasonable accommodation. AOC argues further that allowing Raiford to work from home would not be reasonable because an `essential job function' of a HCS is on site work. Thus, AOC contends that the law did not require it to allow Raiford to work from home.
A. AOC Security
Pointing to the declarations of Kelly McGrew and Fasnacht, Raiford argues that working at home would be consistent with maintaining AOC security. He contends that Fasnacht, his superior, indicated that other Help Center employees worked at home with the same security clearance and that, according to McGrew, AOC could implement an `auditing' system to address its security concerns. But McGrew, a consultant, lacked personal knowledge about AOC operations, and Fasnacht did not say that other Help Center employees performed the same functions at home.
Raiford also cited a deposition by Mr. Norwicki, however it is not included in the Clerk's Papers.
Brian Backus, a former AOC systems administrator, and one of Fasnacht's supervisors, stated that `Help Center staff do not and have never been allowed to work from home.' Clerk's Papers (CP) at 344. Backus explained that because McGrew was not an AOC employee and was not familiar with the AOC security system, his opinions on tracking security issues were impractical.
Fasnacht's declaration confirms that AOC allowed Raiford to work from home for a limited basis from August 1994 to May 1995, but his duties during this period did not involve the high security work involved in his recent telecommute request. There is no evidence that Raiford's part time activities at home under Fasnacht's supervision entailed highly technical tasks. Backus stated that no Help Center staff has worked from home doing high security computer tasks, and Raiford did not submit any specific evidence about his job duties under Fasnacht. Further, in August 1995, when AOC created the Help Center unit and Raiford's position, Fasnacht did not supervise Raiford or Help Center employees and Raiford's HCS position required a higher security clearance than before.
AOC also explained that because it lacked control over the `physical premises of Raiford's home,' someone other than Raiford could get into the computer system at that location. Br. of Respondent at 30. Further, it is undisputed that to satisfy Raiford's telecommuting request, AOC would have to install a specialized telephone line estimated to cost $100,000. And finally, AOC points out that Help Center unit employees need to be physically present at the office because the job involves collaboration with coworkers to solve problems.
It is undisputed that Raiford sought full time employment in the HCS position. And, as discussed above, his request to work at home presented substantial security issues. Thus, he has not presented sufficient evidence disputing AOC's showing that an essential function of the HCS position is full time work at the office. AOC is not required to eliminate essential job duties of the HCS position. Davis, 149 Wn.2d at 534-35. Consequently, Raiford has not presented material facts showing a failure to reasonably accommodate his medical problems. Thus, the trial court did not err in concluding that Raiford failed to make a prima facie showing that his accommodation request to work at home part time was reasonable.
Washington courts define an essential job function as `a job duty that is fundamental, basic, necessary, and indispensable.' Davis, 149 Wn.2d at 533. Additionally, `job presence or attendance may indeed be an essential job function.' Davis, 149 Wn.2d at 534. We note that even when AOC provided certain accommodations for Raiford's onsite office, he missed work one-third of the time from June 1997 to February 1998.
B. Efforts to Accommodate
Raiford argues that AOC did not understand his accommodation request and did not make sufficient efforts. The record suggests otherwise. For almost a year, AOC provided accommodations to enable Raiford to work in the office that included a physio ball, a special reclining chair, and access to a shower. Nevertheless, Raiford remained out of the office roughly a third of the time from June 1997 to February 1998. Raiford explains his absence by emphasizing AOC's failure to hold an evaluation meeting regarding his accommodations.
But in August 1994, AOC laterally transferred Raiford to the HCS position to accommodate his back problems. For the next four years, AOC offered Raiford different job opportunities that offered more telecommuting options and Raiford turned them down. Although the offered jobs did involve a pay reduction, the law does not require an employer to match the employee's salary. Davis, 149 Wn.2d at 537. And for nine months, AOC allowed Raiford to work at home a few days a week on other tasks because of his back injuries. It did so despite concerns regarding Raiford's job performance and high absenteeism.
Raiford's contention that Hill and Davis do not apply to his case lacks reasoned support. Thus, the trial court properly ruled that Raiford failed to establish a prima facie case of disability discrimination. Raiford's failure to satisfy this first evidentiary requirement under Hill bars his claim under RCW 49.60.180(2). Thus, the trial court did not err in granting summary judgment in favor of AOC on the disability discrimination claim.
IV. Retaliation
Raiford contends that he has established a prima facie case of retaliation by AOC. He argues that in 1998, AOC terminated him in retaliation for his filing a racial discrimination claim in May 1994. To support this contention, he argues that the court failed to specify its ruling on the retaliation claim and he cites numerous cases. But his single paragraph discussing the facts of his case lacks persuasive argument.
To prove retaliation, there must be evidence of a connection between lawful opposition activity at one's place of employment and termination of employment. Allison v. Housing Auth. of City of Seattle, 118 Wn.2d 79, 95, 821 P.2d 34 (1991). The plaintiff demonstrates this link through a range of circumstantial evidence, including the proximity of losing a job and the opposition activity. Kahn v. Salerno, 90 Wn. App. 110, 129, 951 P.2d 321 (1998).
Here, Raiford worked at AOC for almost four years after he filed his racial discrimination claim, which AOC settled a month after it was filed. During these four years, Raiford actively negotiated various part time schedules and leave without pay arrangements to accommodate his back injuries. His transfer to the Help Desk position after he filed his racial discrimination claim involved the same pay and professional development as his prior job. Thus, the trial court did not err in granting summary judgment dismissing Raiford's retaliation claim.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, J., and QUINN-BRINTNALL, A.C.J., concur.