Opinion
No. 59938-1-I.
April 7, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-2-35787-8, Richard D. Eadie, J., entered March 30, 2007.
Affirmed by unpublished opinion per Agid, J., concurred in by Dwyer A.C.J., and Leach, JJ.
John Tharp (Tharp) appeals the trial court's decisions in an action he filed against his former employer, The University of Washington (University), for retaliation and employment discrimination based on both disability and age. The trial court denied Tharp's motion to compel discovery and granted the University's motion for summary judgment. We affirm the ruling on Tharp's motion to compel. The trial court limited discovery to nonprivileged, nonduplicative information in general. It limited the scope of discovery about third party terminations and lawsuits against the University to suits filed by employees from the Department in which Tharp was employed as for the five years before he filed his lawsuit. Neither ruling is an abuse of discretion. And, because Tharp failed to raise any genuine issues of material fact about whether the University discriminated against him because of his age, retaliated against him because of his safety complaints, or failed to provide reasonable accommodations for his disability, we affirm the summary judgment decision.
FACTS
Tharp began working for the University in November 1991 as a Mason/Plasterer. During his employment, Tharp suffered several back injuries related to degenerative disc disease in his lower back. In 1997, his physician, Dr. Daniel Brzusek, permanently restricted the amount of time Tharp could spend working on his hands and knees because it aggravated his lower back condition. In 1999, Tharp sustained an upper back injury when he was struck in the chest by a core drilling machine. After this injury, Tharp's doctor restricted him to lifting no more than 25 pounds over his head and no more than 40 pounds on a regular basis. Despite these restrictions, Tharp continued to work as a mason with certain accommodations.
During the summer of 2002, Tharp found out about asbestos violations while taking part in safety meetings. He complained about these violations to the safety coordinator, the head of asbestos removal, and his manager, Brad Songhurst. He claims that Jim Lukehart, the head of asbestos removal, responded to his safety complaints in a threatening manner.
In early July 2002, Tharp re-injured his back when he tripped while carrying a box of floor tile. On July 29, his physician, Dr. Thomas Williamson-Kirkland, released him for work with restrictions that he not lift more than 50 pounds and not work more than two hours per day on his hands and knees. In October 2002, the University told Tharp that it could no longer accommodate his work restrictions because his disability prevented him from performing essential functions of his job. The University sent him a letter explaining that it would conduct an alternative job search but, if no alternative job could be found or if he was unwilling to accept the alternative job, he would be terminated. During the job search, the University said it would continue to employ Tharp with accommodations. The University conducted the alternative job search between January 6 and February 3, 2003. In accordance with University policy, the alternative job search did not include a search for any positions that paid a higher salary than his mason position. The University offered Tharp two positions that paid less than his job as a mason, and he refused to accept them.
On February 4, 2003, Tharp informed Songhurst that he was suffering from depression and asked that he be accommodated by being allowed to arrive to work late. Songhurst told Tharp that he would need to provide a statement from his doctor recommending the requested accommodation. Dr. Russell Goldberg had diagnosed Tharp with depression related to his anxiety about losing his job in November 2002. Dr. Goldberg filled out a form stating that, although Tharp was physically capable of performing all his work related duties, due to his depression he was "unable to work on a regular basis" and checked a box that appeared to recommend a medical leave of absence lasting between 10 days and 12 weeks. Both Tharp and Dr. Goldberg believed that the form did not indicate a mandatory medical leave but rather allowed Tharp to request leave if he felt he needed it. But the University was confused by the form and wrote Dr. Goldberg a letter requesting clarification:
Based on his new diagnosis, you have recommended a leave of absence for Mr. Tharp of 10 days to 12 weeks . . . As Mr. Tharp has not requested a leave of absence, please clarify whether you recommend a leave of absence or whether he is currently able to work . . . .
Additionally, you have indicated that Mr. Tharp is not able to maintain regular attendance and punctuality. As regular attendance and punctuality are essential functions of Mr. Tharp's position and, likely, all the positions at the University, it is important that we understand this information. . . .
Because Tharp specifically checked a box on his medical form that prohibited the University from speaking directly with his doctor, Human Resources Assistant Director Amanda Paye gave this letter to Tharp to give to his doctor. She also told him that she could begin another alternative job search only after finding out from his doctor the extent to which he was able to work, given his depression. Neither Tharp nor Dr. Goldberg responded to the letter seeking clarification.
On February 17, 2003, Tharp hired an attorney to assist him with his employment issues with the University. His attorney requested his personnel file but claims not to have received it. He does, however, admit to having received a letter from the University referencing an attached personnel file and to sending a letter to the University referencing the personnel file it sent him. In July 2003, Tharp's attorney withdrew.
At a meeting on February 26, 2003, the University informed Tharp that he would be placed on a leave of absence. Tharp claims that, on February 28, 2003, Songhurst told him he was terminated. Songhurst maintains that Tharp was merely placed on leave and that he did ask Tharp to return his keys and tools. A letter from Songhurst, dated April 1, 2003, confirmed that Tharp was placed on Family Medical Leave Act (FMLA) leave until May 23, 2003.
29 U.S.C. §§ 2601 et seq.
Tharp's unpaid FMLA leave was extended several times and lasted more than one year. During that time, Paye repeatedly contacted Tharp seeking updated medical information in order to conduct another alternative job search. But Tharp never provided that information. The University finally sent Tharp a termination letter on August 11, 2004. Eventually, the University hired a person who was probably under 35 years old to fill Tharp's former position.
There is no evidence of this person's actual age. But one person testified that he was likely under 35.
On October 31, 2005, Tharp sued the University for retaliation and employment discrimination based on both disability and age. He filed discovery requests seeking, among other things, (1) information about any employment discrimination or retaliation claims brought against the University in the 10 years before his lawsuit, (2) the names, title, and contact information for every person who was medically separated from the University between 2000 and 2006, (3) all emails to and from Judith Mims, an Assistant Attorney General assigned to the University, identified in the University's privilege log, and (4) the personnel file of Glenn Stewart, a former University employee who had brought similar claims in the past. The University provided information only about discrimination and retaliation claims involving the Department in which Tharp worked, filed in the five years before his lawsuit, and refused to produce the other information, citing confidentiality concerns, overbreadth, and privilege. Tharp moved to compel discovery. The University moved for summary judgment. The trial court denied Tharp's Page 6 motion to compel and granted the University's motion for summary judgment.
DISCUSSION
RAP 10.3
As a threshold matter, we must decide whether to accept Tharp's corrections to his opening brief and whether his brief sufficiently complies with the Rules of Appellate Procedure (RAP) to justify review. His original opening brief does not contain a separate section for assignments of error as required by RAP 10.3(a)(4) and RAP 10.3(g). Tharp attempted to correct his brief solely by changing the name of one section from "Summary of Argument" to "Assignments of Error."
The University argues that we should not accept this correction and claims that Tharp's failure to formally assign error to the lower court's rulings provides a sufficient basis for this court to affirm the trial court without further consideration of Tharp's appeal. But a mere technical violation of the rules is generally not sufficient to bar appellate review. We will normally review the merits of an appeal when the appellate brief states the challenged ruling and the nature of that challenge is clear.
Goehle v. Fred Hutchinson Cancer Research Ctr., 100 Wn. App. 609, 613, 1 P.3d 579 (citing Green River Comty. College, Dist. No. 10 v. Higher Educ. Pers. Bd., 107 Wn.2d 427, 431, 730 P.2d 653 (1986)), review denied, 142 Wn.2d 1010 (2000).
Id. at 615.
Here, Tharp's changing "Summary of Argument" to "Assignments of Error" makes no substantive difference in the content of his brief. But he clearly challenges the trial court's decision to grant summary judgment and its ruling denying his motion to compel discovery. His issue statements clarify the nature of these challenges. Thus, we decline to refuse review under RAP 10.3.
Standard of Review
We review a summary judgment order de novo and engage in the same inquiry as the trial court. We will affirm a summary judgment ruling if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. In determining whether there are factual issues, we must construe the facts and all reasonable inferences from those facts in the light most favorable to the nonmoving party. A material fact is one upon which the outcome of the litigation depends. Although a party moving for summary judgment has the initial burden of showing there is no dispute about any issue of material fact, once that burden is met, the burden shifts to the nonmoving party. The nonmoving party cannot rely on speculation but must assert specific facts to defeat summary judgment. Summary judgment is appropriate if reasonable minds could reach only one conclusion after considering all of the evidence presented.
Sheikh v. Choe, 156 Wn.2d 441, 447, 128 P.3d 574 (2006).
CR 56(c); Huff v. Budbill, 141 Wn.2d 1, 7, 1 P.3d 1138 (2000).
Hertog v. City of Seattle, 138 Wn.2d 265, 275, 979 P.2d 400 (1999).
Balise v. Underwood, 62 Wn.2d 195, 381 P.2d 966 (1963).
Hiatt v. Walker Chevrolet Co., 120 Wn.2d 57, 66, 837 P.2d 618 (1992).
Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986).
Hiatt, 120 Wn.2d at 65-66 (citing LaMon v. Butler, 112 Wn.2d 193, 199, 770 P.2d 1027, cert. denied, 493 U.S. 814 (1989)).
In evaluating summary judgment motions in an employment discrimination case where the plaintiff lacks direct evidence of discriminatory animus, Washington courts have adopted the federal McDonnell Douglas burden-shifting protocol. The plaintiff bears the initial burden of demonstrating a prima facie case of unlawful discrimination. The employer must then produce evidence of a legitimate, nondiscriminatory reason for the adverse employment action. If the employer meets this burden, the presumption of discrimination is rebutted, and the plaintiff must present evidence sufficient to question the veracity of the employer's explanation. Ordinarily, such a showing suffices to require a jury trial.
Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 180-81, 23 P.3d 440 (2001) (adopting protocol from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)).
Id.
Id. at 181.
Id. at 185.
Id.
Reasonable Accommodation
Washington's Law Against Discrimination (WLAD), chapter 49.60 RCW, protects employees from discrimination based on a disability. Under WLAD it is unlawful for an employer to discharge any employee because of the presence of any sensory, mental, or physical disability. Employers must reasonably accommodate a disabled employee who is able to perform the essential functions of the job, unless to do so would impose undue hardship on the employer. To establish a prima facie case of failure to accommodate a disability, an aggrieved employee must show that he (1) had a sensory, mental, or physical abnormality that substantially limited his ability to perform the job; (2) was qualified to perform the essential functions of the job with or without reasonable accommodation, or was qualified to fill vacant positions; (3) gave the employer notice of the disability and its accompanying substantial limitations; and (4) upon notice, the employer failed to reasonably accommodate him.
Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 145, 94 P.3d 930 (2004) (citing Pulcino v. Fed. Express, Corp., 141 Wn.2d 629, 639, 9 P.3d 787 (2000)).
Davis v. Microsoft Corp., 149 Wn.2d 521, 532, 70 P.3d 126 (2003) (citing Hill, 144 Wn.2d at 192-93).
Tharp claims that he raised material issues of fact about whether the University discriminated against him by failing to reasonably accommodate his disability. The University concedes that Tharp's degenerative disc disease and depression are disabilities and that he provided notice of those disabilities, but argues that his disabilities prevented him from performing essential job functions and could not reasonably be accommodated.
Although the University explicitly concedes only that Tharp's degenerative disc disease is a disability under the 2007 amendments to RCW 49.60.040(25), its arguments related to his depression suggest an implied concession that depression is also a disability.
The Washington Supreme Court has held that an employer may discharge an employee with a disability who is unable to perform an essential job function without attempting to modify his position to accommodate the disability. The WLAD does not require an employer to accommodate an employee's disability by eliminating or reassigning an essential job function. An essential job 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." Regular and timely attendance is often an essential job function.
Clarke v. Shoreline Sch. Dist. No. 412, 106 Wn.2d 102, 119, 720 P.2d 793 (1986) (teacher's vision and hearing limitations made him incapable of performing essential job function of maintaining safety of his students).
Davis, 149 Wn.2d at 534 (citing Pulcino, 141 Wn.2d at 644).
Id. at 533.
Id. at 534.
Clearly, Tharp's position as a mason and the other University positions he was offered, Traffic Guide and Parking Enforcement Officer, required his physical presence. Tharp asks this court to focus on whether he has raised a genuine issue of fact about whether hands-and-knees work was an essential job function of his mason position. But his physician's statement, which Tharp refused to clarify, that his depression rendered him "unable to work on a regular basis," provided sufficient grounds for the trial court to summarily determine that Tharp's disability rendered him incapable of performing the essential job function of regularly showing up to work. Thus, we hold that, given Tharp's inability to perform essential job functions, the University was not required to modify his position to accommodate his disability.
See Allen v. Pac. Bell, 348 F.3d 1113, 1115 (9th Cir. 2003) (employee's failure to provide employer requested medical documentation contradicting his physician's statements limiting him to a desk job justified employer's reliance on the physician's statement in conducting an alternative job search).
Although the University was not required to change the essential job functions of Tharp's position to accommodate him, it still had an obligation to determine whether it had any open positions for which he was qualified and take affirmative steps to help him to fill one of those positions. But, as an employee, Tharp had a corresponding duty to cooperate with his employer by making it aware of his qualifications, applying for all jobs that fit his abilities, and accepting reasonable offers of employment. In Molloy v. City of Bellevue, we held that summary judgment was proper when the evidence showed that the City had offered a disabled police officer a dispatcher position that paid only half his salary as a police officer and he refused, stating his intention to move to California and obtain teaching credentials.
Clarke, 106 Wn.2d at 121 (citing Dean v. Mun. of Metro. Seattle, 104 Wn.2d 627, 639, 708 P.2d 393 (1985)).
Molloy v. City of Bellevue, 71 Wn. App. 382, 391, 859 P.2d 613 (1993) (citing Dean, 104 Wn.2d at 637-38), review denied, 123 Wn.2d 1024 (1994).
71 Wn. App. 382, 391, 859 P.2d 613 (1993), review denied, 123 Wn.2d 1024 (1994).
Here the University made similar attempts to accommodate Tharp's disability by offering him two alternative positions that paid less. And, similarly, Tharp refused the alternative jobs offered and expressed no interest in continuing the alternative job search process after being placed on FMLA leave for his depression. Consequently, summary judgment was proper. Tharp contends that Davis v. Microsoft requires that a jury decide whether an employer's efforts were reasonably calculated to assist a disabled employee in finding an alternative position within the company. Thus, he argues, Davis precludes summary judgment. But Davis is distinguishable. There, the employee participated in the alternative job search but actively disagreed with the way in which his employer was conducting it. Here Tharp refused to respond to the University's requests for the medical information necessary to conduct an additional alternative job search. His refusal to participate in the process or respond to letters is far more similar to the situation in Molloy, where the employee wanted to give up on the alternative job search and seek other opportunities. Tharp's response to the University's efforts is not analogous to the situation in Davis, where the employee simply disagreed with the way the employer conducted the search. To hold otherwise would require employers to force repeated alternative job searches on unresponsive employees or face a jury trial for failure to accommodate a disability they repeatedly tried to accommodate.
Davis v. Microsoft Corp., 149 Wn.2d 521, 538, 70 P.3d 126 (2003).
Id. at 529.
Tharp also appears to argue that, under Martini v. Boeing Co., he was excused from his duty to cooperate with his employer in the alternative job search because his depression was job-related. But this is not the holding in Martini. In fact, the reasonableness of an alternative job search was not at issue in Martini. There the employer made no efforts to accommodate the employee's disability and ignored his requests to be transferred to another position entirely, resulting in the employee's resignation. Martini is not on point and does not support Tharp's contentions.
137 Wn.2d 357, 971 P.2d 45 (1999).
Id. at 360-61.
Finally, Tharp relies on the Washington Supreme Court's refusal to hold in Pulcino v. Federal Express Corp. that unpaid leave is a reasonable accommodation as a matter of law. But that holding does not mean that placing an employee on unpaid medical leave is never a reasonable accommodation. And here the University placed Tharp on unpaid medical leave only as an accommodation of last resort. When the University first became aware of Tharp's permanent disability restricting his hands-and-knees work, it accommodated him for five months while it conducted an alternative job search. It only placed Tharp on unpaid leave after he provided a statement from his doctor that appeared to recommend leave because of his depression and he refused to provide any clarification about whether or not his doctor was recommending leave.
141 Wn.2d 629, 645, 9 P.3d 787 (2000).
The University provided ample evidence of its efforts to assist Tharp in finding an alternative position even after it placed him on unpaid leave. The record shows that the University held his position open for 17 months and repeatedly sent him letters requesting that he provide clarification of his medical status so that human resources could conduct another alternative job search. Tharp's only response to this evidence of the University's attempts to accommodate him is to claim that he did not cooperate in these efforts because he believed he was already terminated. This self-serving testimony, contrary to all the documentary evidence in the record, is insufficient to raise a genuine issue of material fact about whether the University failed to take reasonable steps to accommodate him in conducting the alternative job search. Summary judgment on this issue was proper.
See Gingrich v. Unigard Sec. Ins. Co., 57 Wn. App. 424, 430, 788 P.2d 1096 (1990) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S. Ct. 1348, 89 L. Ed. 2d 538 (1986)) (party opposing summary judgment "`must do more than simply show that there is some metaphysical doubt as to the material facts.'").
Retaliation
RCW 49.60.210 prohibits retaliation against an employee for engaging in a statutorily-protected activity. To establish a prima facie case of retaliation for a protected activity, an employee must show that (1) he engaged in a statutorily-protected activity; (2) the employer took adverse employment action; and (3) there was a causal link between the employee's activity and the employer's adverse action.
Estevez v. Faculty Club of the Univ. of Wash., 129 Wn. App. 774, 797, 120 P.3d 579 (2005) (citing Delahunty v. Cahoon, 66 Wn. App. 829, 839, 832 P.2d 1378 (1992)).
The parties do not dispute that complaining about the safety of asbestos abatement is a protected activity or that discharge is an adverse employment action. The only element at issue here is whether there was a causal link between the safety complaints Tharp made in the summer of 2002 and the University's decision to terminate him in August 2004.
To show a causal connection, the employee must provide evidence that the employer's motivation for the discharge was the employee's exercise of his protected rights. The employee need not establish that retaliation was the sole reason for the adverse employment actions, but he must show that it was a substantial motivating factor. In recognition of the difficulty of proving motive, Washington courts have allowed an employee to establish the causation element of the prima facie case merely by showing that the employee participated in a protected activity, the employer had knowledge of the activity, and the employee suffered an adverse employment action. If the employee establishes a prima facie case, the employer may rebut it by presenting evidence of a legitimate nondiscriminatory reason for the employment decision. The burden then shifts back to the employee, who must produce evidence that the employer's reason is pretextual.
Wilmot v. Kaiser Aluminum Chem. Corp., 118 Wn.2d 46, 68, 821 P.2d 18 (1991).
Allison v. Housing Auth. of City of Seattle, 118 Wn.2d 79, 95-96, 821 P.2d 34 (1991).
Wilmot, 118 Wn.2d at 70.
Hill, 144 Wn.2d at 180-81.
The parties do not dispute that Tharp was discharged following his asbestos complaints to his employer. And the University has provided the sufficient nondiscriminatory reasons for his dismissal discussed above. Therefore, we need only determine whether Tharp has presented sufficient evidence to raise a genuine issue of material fact about whether the University's stated reasons for his discharge were pretextual.
Tharp relies on two types of evidence to support his claim of pretext: (1) subjective statements of belief from him and his co-workers that his discharge was retaliatory and (2) the University's failure to produce his job evaluations. Clearly, his own self-serving speculations are insufficient to create a genuine issue of material fact. He claims that the statements of other employees should be considered under Herring v. Department of Social Health Services, in which this court held that co-workers statements about a plaintiff's job performance based on their personal knowledge were admissible. But here the statements on which Tharp intends to rely are not based on personal knowledge. In fact, they are not even consistent with the undisputable facts in the record. Tharp's coworkers claim the University discharged him for making safety complaints, without attempting to accommodate him. None of these co-workers was involved in the decision to terminate Tharp. They were also apparently unaware of the University's efforts to temporarily accommodate him in his mason position until an alternative position could be found, the fact that it placed him on FMLA leave because of his depression, not his back problems, and its decision to keep his job open for 17 months while it waited for him to provide a physician's statement that he was able to return to work.
See Seven Gables Corp., 106 Wn.2d at 13.
81 Wn. App. 1, 21-22, 914 P.2d 67 (1996).
See In re Estate of Black, 153 Wn.2d 152, 166, 102 P.3d 796 (2004) ("[A]ffidavits submitted during summary judgment proceedings must be based on the affiant's personal knowledge.").
And Tharp's reliance on Jones v. Kitsap County Sanitary Landfill, Inc., to support his claim that the University's failure to produce his job evaluations creates an inference of pretext is similarly misplaced. In Jones the employer's failure to produce attendance records meant that it was unable to support its claim that he was dismissed for absenteeism. Here there is ample evidence to support the University's claim that it dismissed Tharp because his disabilities prevented him from performing essential job functions, and he refused to cooperate in finding an alternative position to accommodate his disabilities. His evaluations were not relevant because he was not discharged for poor performance. Tharp has not presented evidence sufficient to raise a genuine issue of material fact about whether the University's stated reasons for his discharge were pretextual. We affirm the trial court's summary judgment order dismissing his retaliation claim.
60 Wn. App. 369, 803 P.2d 841 (1991).
Id. at 373.
Age Discrimination
To establish a prima facie case of age discrimination, an employee must show that he was (1) within the statutorily protected age group (40 to 70), (2) performing satisfactorily, (3) discharged by his employer, and (4) replaced by a significantly younger person. As in a retaliation case, if the employer provides a nondiscriminatory reason for the discharge to rebut the prima facie case, the employee must provide evidence that the employer's stated reason is pretextual. Tharp fails to argue that age discrimination was the University's true motivation for terminating him and makes no effort to argue that its stated reasons were pretextual, reasserting instead his earlier disability discrimination and retaliation arguments. Because his age discrimination argument is insufficient and is not supported by relevant authority, we decline to consider it further.
Hill, 144 Wn.2d at 188.
Kuyper v. Department of Wildlife, 79 Wn. App. 732, 736, 904 P.2d 793 (1995), review denied, 129 Wn.2d 1011 (1996).
See RAP 10.3; Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
Motion To Compel
Tharp argues the trial court erred by denying his motion to compel discovery. We review a trial court's denial of a motion to compel discovery for an abuse of discretion. "A court abuses its discretion when it bases its decision on unreasonable or untenable grounds." Generally, parties to a lawsuit may discover anything that is relevant to the action and not privileged. Discrimination and Retaliation Claims by Other Employees
Clarke v. Office of Attorney Gen., 133 Wn. App. 767, 777, 138 P.3d 144 (2006) (citing Shields v. Morgan Fin., Inc., 130 Wn. App. 750, 759, 125 P.3d 164 (2005), review denied, 157 Wn.2d 1025 (2006)), review denied, 160 Wn.2d 1006 (2007).
Id. (citing Brand v. Dep't of Labor Indus., 139 Wn.2d 659, 665, 989 P.2d 1111 (1999)).
CR 26(b)(1).
As noted above, the University limited its production of information related to discrimination and retaliation claims to those made by employees from Tharp's department within a 5 instead of a 10-year period. The trial court ruled this was a reasonable limitation. This court has affirmed similar limitations on the scope of discovery in an age discrimination action. The trial court did not abuse its discretion here either. The additional information Tharp sought was overly broad and not "reasonably calculated to lead to the discovery of admissible evidence." Medical Separations of Other Employees
deLisle v. FMC Corp., 57 Wn. App. 79, 87, 786 P.2d 839, review denied, 114 Wn.2d 1026 (1990).
CR 26(b)(1).
Tharp cites Demelash v. Ross Stores, Inc. to support his contention that the trial court abused its discretion by refusing to compel discovery of information on other employees who were medically separated from the University because that information could have shown a pattern of discrimination. Demelash involved a racial discrimination claim, for which the plaintiff needed evidence that a store treated suspected shoplifters differently based on race or ethnicity. There the trial court denied a motion to compel discovery of other customer complaints, making it impossible for the plaintiff to show whether and how, as an Ethiopian, he was treated differently from other non-Black, non-Ethiopian customers. Here Tharp did not need to show a pattern of discrimination to survive summary judgment and could have proven pretext without any evidence of how other disabled employees were treated. And denying discovery of customer complaints is very different from denying a plaintiff access to the names and contact information of every medically separated employee for a given period of time. Customer complaints are voluntarily made and likely to be relevant to discriminatory practices. The names of former employees disclose no relevant information in and of themselves and are useful only if the plaintiff invades the privacy of those third parties to ask if they had any complaints. Because refusing to compel production of relevant and available documents is different from refusing to allow a plaintiff to engage in a fishing expedition for potentially relevant information at the expense of the privacy of third parties, we conclude that the trial court did not abuse its discretion.
105 Wn. App. 508, 20 P.3d 447, review denied, 145 Wn.2d 1004 (2001).
Id. at 525-26.
Id. at 515-16.
Id. at 525-26.
Clarke, 133 Wn. App. at 784 (affirming denial of a motion to compel information related to a pattern of discrimination that would not have produced evidence relevant to the plaintiff's disparate treatment claim).
See Howell v. Spokane Inland Empire Blood Bank, 117 Wn.2d 619, 629-30, 818 P.2d 1056 (1991) (trial court did not abuse its discretion by refusing to allow discovery of a blood donor's name to prevent a fishing expedition).
Glenn Stewart's Personnel File
On December 22, 2006, Tharp filed a discovery request for Glenn Stewart's personnel file. On February 28, 2007, Tharp's counsel deposed Stewart and received a copy of the complaint from his disability discrimination suit against the University. Tharp fails to explain what information, other than that already gained from Stewart's deposition and his discrimination complaint, he hopes to obtain from Stewart's personnel file. He argues that the trial court should have set aside a confidentiality agreement that prohibited Stewart for disclosing any of the facts underlying his claim, but Stewart testified to those facts at his deposition. Without knowing how Tharp may have been prejudiced by the decision not to compel production of the file, we will not conclude that the trial court abused its discretion.
See Beltran v. Dep't of Social Health Servs., 98 Wn. App. 245, 256, 989 P.2d 604 (1999) (The trial court did not abuse its discretion in denying a motion to compel when plaintiff had the opportunity in depositions to ask about the matters addressed by the documents sought.).
Attorney Emails
After an in camera review of the emails to and from Assistant Attorney General Judith Mims that Tharp requested, the trial court refused to compel discovery because the emails were protected either under the attorney client privilege or as attorney work product. Tharp claims, without citation to authority, that because many of these emails were copied to multiple people, any privilege was waived. But the United States Supreme Court has held that the attorney client privilege may apply to communications between an attorney and multiple lower level employees in an organization when those communications are made in order to secure legal advice from counsel. Here the communications sought were between the University's employees and its counsel and were made after Tharp hired an attorney, suggesting the possibility of impending litigation. Thus, we hold that trial court did not abuse its discretion in refusing to compel discovery of the emails.
Upjohn Co. v. United States, 449 U.S. 383, 394-95, 101 S. Ct. 677, 66 L. Ed. 2d 584 (1981).
Attorney Fees
Tharp requests attorney fees and costs under RAP 18.1 and RCW 49.60.030(2), which authorize an award of attorney fees to parties who prevail on the merits of a claim under the WLAD. Because Tharp has not prevailed, he is not entitled to attorney fees.
Adler v. Fred Lind Manor, 153 Wn.2d 331, 364, 103 P.3d 773 (2004).
We affirm.
WE CONCUR: