Anderson et al v. The Boeing Company

MOTION for Partial Summary Judgment

W.D. Wash.September 8, 2016

PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT (2:15-cv-01860-TSZ) - i 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE JOHN ANDERSON and ANITA ANDERSON, Plaintiffs, v. THE BOEING COMPANY, a Delaware corporation Defendant. NO. 2:15-cv-01860 TSZ PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT ORAL ARGUMENT REQUESTED Noting Date: September 30, 2016 Case 2:15-cv-01860-TSZ Document 54 Filed 09/08/16 Page 1 of 30 PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT (2:15-cv-01860-TSZ) - ii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 TABLE OF CONTENTS TABLE OF AUTHORITIES …………………………………………………………………....iii I. INTRODUCTION ………………………………………………………………………….1 II. RELIEF REQUESTED …………………………………………………………….............1 III. FACTUAL SUMMARY …………………………………………………………...............2 A. In 2011, Boeing observed Mr. Anderson’s mental health disorder, yet did nothing to explore the nature of his disability or need for accommodation ..................3 B. In 2012, Boeing knew even more, and possessed specific information, about Mr. Anderson’s bipolar diagnosis, yet similarly neglected to take meaningful action to explore the need for accommodations ………………………………………………...5 IV. EVIDENCE RELIED UPON ………………………………………………......................11 V. AUTHORITY AND ARGUMENT .……………………………………………................11 A. Summary Judgment Standard ...……………………………………………...............12 B. As a matter of law, Mr. Anderson is entitled to partial summary judgment based on Boeing’s failure to accommodate in 2011 ………….……………...............12 1. Mr. Anderson’s bipolar disorder impacted his ability to perform the job ..………………………………………………………...........14 2. Mr. Anderson was qualified to perform the Quality Engineer 5 position during the period of 2010-2012 …………………………………………………15 3. Mr. Anderson’s workplace behaviors and need for medical leave notified Boeing of his disability status ………………………………………….16 4. Boeing failed to explore and adopt reasonable methods of accommodation for Mr. Anderson’s bipolar disorder …………………………..17 C. As a matter of law, Mr. Anderson is similarly entitled to partial summary judgment based on Boeing’s failure to accommodate in 2012 ………………............................19 D. As a matter of law, Boeing is liable for its lack of good faith and failure to engage in the interactive process …………………………………………………….19 E. As a matter of law, Value Options (now known as Beacon Health Options) was Boeing’s agent for purposes of Mr. Anderson’s Fitness-For-Duty examination and resulting medical leave of absence in 2012 ………………………..21 F. As a matter of law, Value Options’ knowledge of Mr. Anderson’s medical condition gained in the assessment of Mr. Anderson’s Fitness For Duty through his return to work in 2012 is imputable to Boeing ………………………….22 VI. CONCLUSION ……………………………………………………………………...........23 Case 2:15-cv-01860-TSZ Document 54 Filed 09/08/16 Page 2 of 30 PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT (2:15-cv-01860-TSZ) - iii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 TABLE OF AUTHORITIES Cases American Seamount Corp. v. Science & Eng’g Assoc., Inc. 61 Wn. App. 793, 812 P.2d 505 (Wash. 1991) ......................................................................... 23 Anderson v. Liberty Lobby 477 U.S. 242, 106 S.Ct. 2505 (1986) ........................................................................................ 14 Barnett v. U.S. Air, Inc. 228 F.3d 1105 (9th Cir. 2000) ................................................................................................... 22 Beck v. University of Wis. Bd. of Regents 75 F.3d 1130 (7th Cir. 1996) .................................................................................................... 22 Brady v. Wal-Mart Stores, Inc. 531 F.3d 127 (2nd Cir. 2008) .............................................................................................. 18, 22 Bultemeyer v. Fort Wayne Comm. Sch. 100 F.3d 1281 (7th Cir. 1996) .................................................................................................. 22 Celotex Corp. v. Catrett 477 U.S. 317, 106 S.Ct. 2548 (1986) ........................................................................................ 14 CKP, Inc. v. GRS Constr. Co 63 Wash. App. 601, 685 P.2d 1062 (Wash. Ct. App. 1991) .................................................... 23 Davis v. Microsoft Corp. 149 Wn.2d 521, 70 P.3d 126 (Wash. 2003) .............................................................................. 16 Dean v. Mun. of Metro. Seattle 104 Wn.2d 627, 708 P.2d 393 (Wash. 1985) ...................................................................... 14, 19 Downey v. Crowley Marine Servs. Inc. 236 F.3d 1019 (9th Cir. 2001) ............................................................................................. 15, 18 EEOC v. Sears, Roebuck & Co. 417 F.3d 789 (7th Cir. 2005) .............................................................................................. passim Freeman v. Navarre 47 Wn.2d 760, 289 P.2d 1015 (Wash. 1955) ............................................................................ 23 Frisino v. Seattle Sch. Dist. No. 1 160 Wash. App. 765, 249 P.3d 1044 (Wash. Ct. App. 2011) review denied, 172 Wn.2d 1013, 259 P.3d 1109 (Wash. 2011) ......................................... passim Goodman v. Boeing Co. 127 Wn.2d 401, 899 P.2d 1265 (Wash. 1995) ........................................................ 15, 19, 21, 24 Hewson Constr., Inc. v. Reintree Corp. 101 Wn.2d 819, 685 P.2d 1062 (Wash. 1984) .......................................................................... 23 Hill v. BCTI Income Fund I 144 Wn.2d 172, 23 P.3d 440 (Wash. 2001) .............................................................................. 16 Case 2:15-cv-01860-TSZ Document 54 Filed 09/08/16 Page 3 of 30 PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT (2:15-cv-01860-TSZ) - iv 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 Holland v. Boeing Co. 90 Wn.2d 384, 583 P.2d 621 (Wash. 1978) .................................................................. 13, 15, 18 Humphrey v. Mem. Hosp. Ass’n. 239 F.3d 1128 (9th Cir. 2001) ............................................................................................. 20, 23 Kimbro v. Atlantic Richfield Co. 889 F.2d 869 (9th Cir. 1989) ..................................................................................................... 19 Kumar v. Gate Gourmet, Inc. 108 Wn.2d 481, 325 P.3d 193 (Wash. 2013) ............................................................................ 19 Mauch v. Kissling 56 Wn. App. 312, 56 P.2d 601 (Wash. 1989); .......................................................................... 23 Pilling v. Eastern & Pac. Enters. Trust 41 Wn. App. 158, 702 P.2d 1232 (Wash. Ct. App. 1985) ........................................................ 24 Pulcino v. Federal Express Corp, 141 Wn.2d 629, 9 P.3d 787 (Wash. 2000) ................................................................................ 15 Riehl v. Foodmaker, Inc. 152 Wn.2d 138, 94 P.3d 930 (Wash. 2004) .............................................................................. 15 Roderick Timber Co. v. Willapa Harbor Cedar Prods., Inc. 29 Wn. App. 311, 627 P.2d 1352 (Wash. Ct. App. 1981) ........................................................ 24 Schmidt v. Safeway, Inc. 864 F.Supp. 991 (D.Or. 1994)................................................................................................... 13 Sommer v. Dept. Social & Health Servs 104 Wn. App. 160, 15 P.3d 664 (Wash. Ct. App. 2001) .............................................. 18, 19, 22 U.S. Airways, Inc., v. Barnett 535 U.S. 391, 122 S.Ct. 1516 (2002) .......................................................................................... 1 Wash. Mut. Inc. v. United States 636 F.3d 1207 (9th Cir. 2011) ................................................................................................... 14 Wysinger v. Auto. Club of So. Cal. 157 Cal.App.4th 413 (Cal.Ct.App.2007) .................................................................................. 22 Zivkovic v. S. Cal. Edison Co. 302 F.3d 1080 (9th Cir. 2002) ................................................................................................... 22 Statutes 29 C.F.R. § 1630.2 .................................................................................................................. 17, 20 42 U.S.C.S. §§ 12101-12213 ........................................................................................................ 17 RCW 49.60.040 ....................................................................................................................... 16, 17 WAC 162-22-025 .......................................................................................................................... 15 WAC 162-22-065 .......................................................................................................................... 20 WAC 162-22-075 .......................................................................................................................... 19 Case 2:15-cv-01860-TSZ Document 54 Filed 09/08/16 Page 4 of 30 PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT (2:15-cv-01860-TSZ) - v 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 Other Authorities 6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 50.18 (6th ed.) .............................................. 23 6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 330.33 (6th ed.) ............................................ 16 American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders, pp. 345-97, 4th ed. 2000 ................ 3 Treatises Rest.(Second) of Agency §§ 268, 272, 275 .................................................................................. 24 Case 2:15-cv-01860-TSZ Document 54 Filed 09/08/16 Page 5 of 30 PLAINTIFFS’ MOTION FORPARTIAL SUMMARY JUDGMENT (2:15-cv-01860-TSZ) - Page 1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 I. INTRODUCTION The Washington Law Against Discrimination (WLAD) is a broad remedial statutory scheme that requires, inter alia, an employer to engage with an employee in good faith for the purpose of exploring the nature of the employee’s known disability and the potential need for accommodations to assist the employee to perform the essential functions of his job. In the instant case, Defendant Boeing utterly failed to engage meaningfully or accommodate Plaintiff John Anderson in the face of his obvious disability-related symptoms, and, as a result, violated the WLAD. Without dispute, Boeing possessed firsthand knowledge of Mr. Anderson’s mental health disorder. Moreover, despite Mr. Anderson exhibiting the symptoms of his disability in the workplace in 2011 and 2012, Boeing failed to engage an interactive dialogue or take positive steps regarding accommodation for Mr. Anderson. Not only did Boeing HR fail to adhere to best practices, Boeing personnel intended to discipline Mr. Anderson instead of providing him assistance as a disabled worker. When Boeing’s Medical and Employee Assistance Program departments received additional information about Mr. Anderson’s condition and limitations, Boeing continued to neglect its obligations under the WLAD. On these undisputed facts, Plaintiffs are entitled to partial summary judgment as to Defendant’s liability for failing to accommodate Mr. Anderson from 2011-2012. II. RELIEF REQUESTED Pursuant to Civil Rule 56, Plaintiffs request this Court determine as a matter of law that: (1) By failing to engage Mr. Anderson in the interactive accommodation process1 or take other positive steps2 toward needed accommodations after Mr. Anderson 1 Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1114-15 (9th Cir. 2000), vacated and remanded on other grounds, U.S. Airways, Inc., v. Barnett, 535 U.S. 391, 122 S.Ct. 1516 (2002) (when a company knows of an employee’s disability, the employer must initiate the mandatory interactive accommodation process by engaging in a detailed good faith exploration of possible accommodations). 2 Goodman v. Boeing Co., 127 Wn.2d 401, 408, 899 P.2d 1265 (Wash. 1995) (quoting Holland v. Boeing Co., 90 Wn.2d 384, 389, 583 P.2d 621 (Wash. 1978) (employer with knowledge of an employee’s disability must take positive steps toward establishing reasonable accommodations). Case 2:15-cv-01860-TSZ Document 54 Filed 09/08/16 Page 6 of 30 PLAINTIFFS’ MOTION FORPARTIAL SUMMARY JUDGMENT (2:15-cv-01860-TSZ) - Page 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 exhibited symptoms of his mental health disorder in 2011, Defendant Boeing is liable for failing to accommodate Mr. Anderson, in violation of the WLAD, beginning on June 2, 2011; (2) By failing to engage Mr. Anderson in the interactive accommodation process or take positive steps toward needed accommodations after Mr. Anderson again exhibited symptoms of his mental health disorder in 2012, Defendant Boeing is liable for failing to accommodate Mr. Anderson, in violation of the WLAD, beginning on May 24, 2012; (3) Value Options was the agent of Defendant Boeing while performing activities assessing Mr. Anderson’s Fitness-For-Duty in 2012; and (4) Any and all information regarding Mr. Anderson’s medical condition and limitations received by Value Options as agent for Boeing is imputed to Defendant Boeing. In the alternative to findings (1) and (2) above, Plaintiffs respectfully request that this Court make the following findings as a matter of law as to the elements of John Anderson’s failure to accommodate claim: (5) As of April 12, 2011, and continuing through November 29, 2012, Mr. Anderson had a mental abnormality that substantially limited his ability to perform his job; (6) From September 24, 2010 and continuing through November 29, 2012, Mr. Anderson was qualified to perform the essential functions of his job as a Quality Engineer 5, with or without reasonable accommodation; (7) As of April 12, 2011, Boeing had sufficient notice of Mr. Anderson’s bipolar disorder disability and accompanying substantial limitations; and (8) As of February 24, 2012, Boeing had sufficient notice of Mr. Anderson’s bipolar disorder disability and accompanying substantial limitations. III. FACTUAL SUMMARY Plaintiffs bring this dispositive motion because there is no evidence to show that Boeing attempted to offer any accommodations in 2011 or 2012.3 For the sake of brevity, Plaintiffs 3 Cameron Decl. Ex. C (Binford Dep. 75:1-22, 92:24-94:9, 95:12-16, 97:4-8, 99:25-101:18, 142:5-23, 150:9-151:8, 167:2-15, 223:11-17) (Dkt. #42-8), Ex. E (Hanson Dep. 120:5-25)(Dkt. #42-17), Ex. G (Klotz Dep. 101:6-9, 134:3- 137:19, 138:6-13,161:20-163:9) (Dkt. #42-23), Ex. I at p. 2-3 (Dkt. 42-47), Ex. J at p. 4-6 (Dkt. 42-48); J. Anderson Decl. ¶11 (Dkt. #38). Nor did Boeing ever determine that Mr. Anderson’s disclosed bipolar disorder was no longer affecting his ability to perform his job functions. Cameron Decl. Ex. G (Klotz Dep. 134:13-22) (Dkt. #42-23). Case 2:15-cv-01860-TSZ Document 54 Filed 09/08/16 Page 7 of 30 PLAINTIFFS’ MOTION FORPARTIAL SUMMARY JUDGMENT (2:15-cv-01860-TSZ) - Page 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 hereby incorporate the factual recitation provided in Plaintiffs’ Response to Defendant’s Motion for Summary Judgment. (Dkt. #37, pp. 1-12). Plaintiffs highlight particular facts below that may guide this Court in its analysis. A. In 2011, Boeing observed Mr. Anderson’s mental health disorder, yet did nothing to explore the nature of his disability or need for accommodation. In April 2011, HR Generalist Deborah Binford observed Mr. Anderson exhibit pressured speech, tangential thoughts, agitation and disruptive behaviors that impacted both his work and the ability of others to work efficiently. Ms. Binford later documented her recollection in notes she prepared in February 2012 when she again encountered Mr. Anderson exhibiting the same symptoms of his mental health disorder.4 The erratic and disruptive behaviors of Mr. Anderson led to a brief hospitalization and a leave of absence from April 12 to June 1, 2011.5 On April 6, 2011, Mr. Anderson was admitted to St. Francis Hospital Mental Health Unit and diagnosed with Bipolar Affective Disorder, Hypomanic.6 Bipolar disorder is a psychiatric condition that “substantially limits brain function.”7 To this day, and every day, Mr. Anderson continues to suffer from bipolar disorder.8 Mr. Anderson’s bipolar disorder has manifested in many ways: hospitalization in 2011; impulsivity; irritability; rapid thought processes; distractibility; cognitive dysfunction; unpredictability; and difficulty completing tasks in a timely way. 9 He also has difficulty gathering himself well enough to provide feedback to his employer about what might help him perform better and to maintain comportment when he finds it difficult 4 Binford Decl. Ex 2 (Dkt. #20, p. 17-20) (“I reminded him about the behaviors that I brought to his attention at that time [in 2011] were disruptive to others in the office and distracted from work being accomplished by him and others . . . I told him that the same behaviors were being observed again . . .”). These notes were part of the supportive basis to require Mr. Anderson to undergo a Fitness-For-Duty (FFD) evaluation in 2012. 5 Although Boeing may attempt to claim this leave of absence in 2011 to qualify as an accommodation, there is a void of appreciable evidence from this time period to suggest that Boeing either documented or viewed this leave as an official disability accommodation (i.e. there is no record of accommodation). 6 J. Anderson Decl. ¶ 5 (Dkt. #38); Declaration of Anita Anderson (“A. Anderson Decl.”) ¶ 3 (Dkt. #39); Cameron Decl. Ex. EE (Dkt. #42-70). 7 29 C.F.R. § 1630.2(j)(1)(vii), (3)(iii), (4)(iv) (2011); Declaration of John Frederick (“Frederick Decl.”) ¶ 1-4, 5 (Dkt. #41). See also American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, pp. 345-97 (“Mood disorders”) 4th ed. 2000. 8 Cameron Decl. Ex. B (Deposition of Dr. John Frederick (“Frederick Dep.”) 28:2-12, 29:11-13) (Dkt. #42-7); Frederick Decl. ¶ 3 (Dkt. #41). 9 Cameron Decl. Ex. B (Frederick Dep. 42:10-44:1, 49:16-21, 52:16-53:1) (Dkt. #42-7), Ex. M (Frederick Expert Report) p. 2-3 (Dkt. #42-51). Case 2:15-cv-01860-TSZ Document 54 Filed 09/08/16 Page 8 of 30 PLAINTIFFS’ MOTION FORPARTIAL SUMMARY JUDGMENT (2:15-cv-01860-TSZ) - Page 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 to request such information.10 In addition, a characteristic of Mr. Anderson’s diagnosis is his impaired insight into his bipolar condition.11 Mr. Anderson experiences symptoms of his bipolar disorder outside of manic or hypomanic episodes.12 Mr. Anderson has been taking one or more medications for his bipolar condition, with dosages being adjusted from time to time.13 By definition, Boeing granted a leave of absence when it determined that a medical issue prevented Mr. Anderson from performing his job.14 In addition, Mr. Anderson also specifically told Mr. Coffman, one of his supervisors in 2011, that the absence was due to a bipolar disorder diagnosis.15 Ms. Binford knew that the behaviors exhibited by Mr. Anderson resulted in his extended absence from work.16 Although she denied specific knowledge of his disability, Ms. Binford knew that Mr. Anderson took leave for his own medical needs soon after he expressed disruptive behaviors in the workplace.17 Based on her HR knowledge and simple common sense, Ms. Binford acknowledged that disability issues are frequently intertwined with a medical leave of absence.18 Moreover, Ms. Binford learned of Mr. Anderson’s diagnosis from Ms. Anderson during the same time period.19 Despite her role as the HR Generalist for Mr. Anderson’s group, Ms. Binford neglected to create any documentation relative to Mr. Anderson’s disability-related behaviors in 2011. This lack of documentation explains why Ms. Binford cannot recall, yet alone rebut, the fact that Mr. Anderson’s mental health condition caused him to exhibit disruptive behaviors and seek a 10 Cameron Decl. Ex. B (Frederick Dep. 43:10-18) (Dkt. #42-7). 11 Id. at 76:24-77:11. 12 Cameron Decl. Ex. M at p. 2-3 (Dkt. #42-51). 13 Frederick Decl. ¶ 3 (Dkt. #41). 14 See Plaintiffs’ Response (Dkt. #37, p. 4, fn. 22). 15 J. Anderson Decl. ¶ 5 (Dkt. #38). 16 Lonnquist MSJ Decl. Ex. 7 (Deposition of Deborah Binford (“Binford Dep.”)) at 47:6-19. Ms. Binford was deposed on March 7, 2016, in her individual capacity and also as a corporate-designated Fed. R. Civ. P. 30(b)(6) witness. Ex. 7 (Binford Dep. 15:16-20). (*Judith A. Lonnquist, counsel for Mr. Anderson, provides this declaration in support of Plaintiff’s Motion for Partial Summary Judgment. All other declaration citations reference pleadings previously on file with this Court and will include the following reference (Dkt. # _____)). 17 Lonnquist MSJ Decl. Ex. 7 (Binford Dep. 56:9-25); Plaintiffs’ Response (Dkt. #37, p. 4, fn. 22). 18 Lonnquist MSJ Decl. Ex. 7 (Binford Dep. 102:1-14). 19 A. Anderson Decl. ¶ 4-7 (Dkt. #39). Case 2:15-cv-01860-TSZ Document 54 Filed 09/08/16 Page 9 of 30 PLAINTIFFS’ MOTION FORPARTIAL SUMMARY JUDGMENT (2:15-cv-01860-TSZ) - Page 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 leave of absence for purposes of medical treatment.20 Ms. Binford and Boeing are also unable either to qualify or differentiate the disruptive and erratic behaviors exhibited by Mr. Anderson in 2011 and again at the beginning of 2012.21 Following his use of authorized medical leave, Mr. Anderson returned to work at Boeing on June 2, 2011.22 Ms. Binford acknowledges that it is considered a best practice for an HR representative to connect with an employee and an employee’s supervisor in order to support the employee following a medical leave of absence.23 However, Ms. Binford failed to engage with Mr. Anderson to inquire about the potential need for accommodation, and there is no there a record of any other Boeing employee taking such action.24 Even though Ms. Binford possessed the knowledge and experience to conclude that medical absences may require HR involvement for disability issues upon an employee’s return to work, she limited her contact with Mr. Anderson to a simple confirmation from the supervisor that he had, in fact, returned to work.25 Ms. Binford’s lack of professional attention continued even when it became apparent that Mr. Anderson experienced difficulty with meeting performance expectations in the year that included a lengthy medical absence.26 The primary HR contact for Mr. Anderson appeared entirely ignorant of this circumstance, as Ms. Binford neglected to engage Mr. Anderson about the ongoing impacts of his disability and she did not consider potential accommodations, such as possible reassignment.27 B. In 2012, Boeing knew even more, and possessed specific information, about Mr. Anderson’s bipolar diagnosis, yet similarly neglected to take meaningful action to explore the need for accommodations. 20 Lonnquist MSJ Decl. Ex. 7 (Binford Dep. 55:7-17; 58:7 – 59:20). 21 Lonnquist MSJ Decl. Ex. 7 (Binford Dep. 87:9 – 88:4). 22 Cameron Decl. Ex. K at p. 2 (Dkt. #42-49); J. Anderson Decl. (Dkt. #38). 23 Lonnquist MSJ Decl. Ex. 7 (Binford Dep. 75:1 – 76:19; 99:25 – 101:18). 24 Id. 25 Lonnquist MSJ Decl. Ex. 6; Cameron Decl. Ex. C (Binford Dep. 75:1-22, 92:24-94:9, 95:12-16, 97:4-8, 99:25- 101:18) (Dkt. #42-8), Ex. G (Klotz Dep. 134:5-12) (Dkt. #42-23), Ex. I at p. 2-3 (Dkt. #42-47), Ex. J at p. 4-6 (Dkt. 42-48). 26 Soleman Decl. Ex. 16 (Dkt. #19-17) (Mr. Anderson’s September 2011 Interim performance review states, “I need John to step up to the plate,” and “I need John to work as a level 5.”). 27 Lonnquist MSJ Decl. Ex. 7 (Binford Dep. 99:25 – 101:18; 110:17 – 111:4). Case 2:15-cv-01860-TSZ Document 54 Filed 09/08/16 Page 10 of 30 PLAINTIFFS’ MOTION FORPARTIAL SUMMARY JUDGMENT (2:15-cv-01860-TSZ) - Page 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 In January and February 2012, apparently in preparation for disciplinary action, Ms. Binford and Plaintiff’s supervisor, Karen Hanson, coordinated to create a record of the “distracting and erratic” behaviors and “disjointed” communication style of Mr. Anderson in the workplace.28 The observations of Mr. Anderson in early 2012 were the same or substantially similar to the observations in 2011.29 Boeing is unable to dispute the fact that Mr. Anderson’s disability-related conduct manifested in a similar manner in both years.30 On February 2, 2012, Ms. Hanson contacted Ms. Binford to state that “John’s behavior and communication is becoming increasingly distracting and erratic,” in addition to reporting her managerial efforts to keep Mr. Anderson focused on his job responsibilities.31 A week later, on February 9, 2012, Ms. Hanson again conferred with her HR contact by stating that “[t]here have been so many incidents occurring with regards to John’s behavior I cannot keep up with him. I need help with this asap.”32 Despite the reemergence of Mr. Anderson’s mental health condition and outward manifestations that were interfering with his job duties, Ms. Binford is unable to attest that Boeing explored the potential need for reasonable accommodations with either Mr. Anderson or his supervisor, Ms. Hanson.33 Instead of brainstorming plausible accommodations for an employee that exhibited erratic behavior due to a mental health disorder, Ms. Hanson and Ms. Binford contemplated whether Mr. Anderson’s failure to follow instructions warranted disciplinary action.34 Ms. Binford participated in several telephone conferences with Boeing EAP, including one where she disclosed to EAP that Mr. Anderson had confirmed his mental health diagnosis as bipolar 28 Binford Decl. Ex. 2 (Dkt. #20, p. 17-20); Cameron Decl. Ex. E (Deposition of Karen Hanson (a/k/a Karen Trotter) (“Hanson Dep.”)) at 153:16-21) (Dkt. #42-17). 29 Binford Decl. Ex. 2 (Dkt. #20, p. 17-20). 30 Lonnquist MSJ Decl. Ex. 7 (Binford Dep. 87:9 – 88:4). 31 Hanson Decl. Ex. 2 (Dkt. #21, p. 12-14). 32 Cameron MSJ Decl. Ex. T (Dkt. #42-59, p. 2). 33 Lonnquist MSJ Decl. Ex. 7 (Binford Dep. 126:18 – 127:7; 128:23 – 129:7). 34 Lonnquist MSJ Decl. Ex. 7 (Binford Dep. 121:3-19). Case 2:15-cv-01860-TSZ Document 54 Filed 09/08/16 Page 11 of 30 PLAINTIFFS’ MOTION FORPARTIAL SUMMARY JUDGMENT (2:15-cv-01860-TSZ) - Page 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 disorder.35 However, Ms. Binford also pondered whether Mr. Anderson was being insubordinate purposely, rather than suffering from a worsening of his psychiatric disability.36 With the support of Boeing EAP, Ms. Binford and Ms. Hanson directed Mr. Anderson to attend mandatory Fitness-For-Duty (“FFD”) evaluation at Boeing Medical and Boeing EAP.37 Boeing Medical evaluated Mr. Anderson. Boeing Medical nurses evaluated Mr. Anderson and documented “hypomanic behaviors” and a “possible manic/hypomanic state.”38 Boeing Medical determined that Mr. Anderson was “not medically able to work” and required him to “clear through [Boeing] medical” prior to returning to work in the future.39 Boeing Medical then referred him to Ms. Humphries at Boeing EAP for a psychological FFD evaluation.40 It is undisputed that Boeing contracted with a company named Value Options (now known as Beacon Health Options) to administer Boeing’s EAP in 2012, when Boeing required Mr. Anderson to submit to a Fitness-For-Duty examination and mandatory medical leave of absence.41 Value Options exclusively served Boeing employees, and operated with Boeing Medical on Boeing’s secure campus.42 Pursuant to the Boeing/Value Options contract, Value Options conducted Fitness-For-Duty evaluations of Boeing employees (in addition to providing other services to Boeing employees).43 The Boeing/Value Options contract explicitly states that Value Options will conduct psychological Fitness-For-Duty examinations for Boeing pursuant to 35 Cameron Decl. Ex. H-6 (Dkt. #42-42, p. 2-3). 36 Lonnquist MSJ Decl. Ex. 7 (Binford Dep. 121:3-19; 182:10-24). 37 Lonnquist MSJ Decl. Ex. 7 (Binford Dep. 185:1-21); Cameron Decl. Ex. E (Hanson Dep. 105:1-9; 106:10-107:15; 110:15-25) (Dkt. # 42-17). 38 Cameron Decl. Ex. G (Klotz Dep. 143:13-144:2) (Dkt. # 42-23), Ex. G-5 (Dkt. #42-28). 39 Cameron Decl. Ex. G-5 (Dkt. #42-28), Ex. Y (Dkt. #42-64). 40 Cameron Decl. Ex. G (Klotz Dep. 139:23-140:7, 141:13-142:15) (Dkt. # 42-23), Ex. H (Humphries Dep. 115:7- 117:13) (Dkt. #42-36). 41 Cameron Decl. Ex. G (Klotz Dep. 84:16-19) (Dkt. #42-23), Ex. G-5 p.4 (Dkt. #42-28),Ex. H (Humphries Dep. 8:12-9:8) (Dkt. #42-36). 42 Cameron Decl. Ex. H (Humphries Dep. 65:18-67:19, 25:19-21) (Dkt. #42-36). 43 Cameron Decl. Ex. H (Humphries Dep. 23:14-29:14, 45:14-25, 58:15-24) (Dkt. #42-36). In the instant motion for partial summary judgment, Plaintiffs argue only that Value Options was Boeing’s agent for the purpose of evaluating Mr. Anderson’s Fitness-For-Duty and ability to return to work, from February through May of 2012. Plaintiffs do not ask the Court at this time to determine whether Value Options was Boeing’s agent in performing other services, i.e. counseling sessions with EAP counselors, pursuant to the same contract. Case 2:15-cv-01860-TSZ Document 54 Filed 09/08/16 Page 12 of 30 PLAINTIFFS’ MOTION FORPARTIAL SUMMARY JUDGMENT (2:15-cv-01860-TSZ) - Page 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 Boeing’s Occupational Health Exam Procedure.44 Boeing policy requires Value Options EAP Counselors to follow a specific procedure in these examinations, including reviewing the FFD Request Form submitted by Boeing management, interviewing the employee and his own health care providers, and referring the employee to medical specialists, at Boeing’s expense, for further evaluation of the employee’s medical condition in relation to his job duties.45 Further, pursuant to the contract, Value Options committed to providing two full-time Boeing-dedicated (doing Boeing work only) staff who will be “fully conversant with Boeing protocols” including psychological FFD process and “maintain close relationships with HR and Security at sites without onsite EAP counselors.”46 Boeing EAP Counselor Jodi Humphries (a Value Options employee) was one such Boeing-dedicated staff working hand-in-glove with Boeing Medical and HR to implement this Boeing FFD procedure.47 In fact, Ms. Humphries and her colleagues at Value Options advised Ms. Binford as to Boeing’s Fitness-For-Duty process and standards, as they applied to Mr. Anderson’s case.48 As a result of his medical condition and impact upon his functionality at work, Boeing placed Mr. Anderson on leave between February 24 and May 23, 2012.49 Pursuant to the Boeing company protocol, Ms. Humphries interviewed Mr. Anderson, spoke with his treating psychiatrist, and referred Mr. Anderson for evaluation by a forensic examination.50 Ms. Humphries received the forensic evaluation, which she passed along to Boeing, who paid for and owned the evaluation.51 Ms. Humphries worked with Mr. Anderson, his treating psychiatrist, Boeing’s forensic evaluator, Boeing Medical and Boeing HR to coordinate Mr. Anderson’s 44 Lonnquist MSJ Decl. Ex. 1, p. 11; Ex. 2; Ex. 3; Ex. 5. 45 Lonnquist MSJ Decl. Ex. 3 (Klotz Dep. Ex. 7, p. 2/Wix Dep. Ex.6.); Ex. 4 (Deposition of Gretchen Wix at 113:20-116:23); Ex. 5. 46 Lonnquist MSJ Decl. Ex. 1, p. 14. 47 Cameron Decl. Ex. H (Humphries Dep. 25:21-:27:1, 28:15-29:14, 88:13-89:3) (Dkt. #42-36). 48 Cameron Decl. Ex. H (Humphries Dep. 128:14-129:8, 153:8-154:16, 156:21-162:18(Dkt. #42-36), Ex. H-5 (Dkt. #42-41), Ex. H-6 (Dkt. #42-42). 49 Lonnquist MSJ Decl. Ex. 7 (Binford Dep. 128:23 – 129:7; 144:18 – 146:19). 50Cameron Decl. Ex. H (Humphries Dep.119:14-121:21) (Dkt. #42-36), H-1 (Dkt. #42-37). 51 Cameron Decl. Ex. H (Humphries Dep. 171:15-172:3, 172:18-174:9) (Dkt. #42-36). Case 2:15-cv-01860-TSZ Document 54 Filed 09/08/16 Page 13 of 30 PLAINTIFFS’ MOTION FORPARTIAL SUMMARY JUDGMENT (2:15-cv-01860-TSZ) - Page 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 return to work in May 2012, when he was no longer unfit for duty.52 Mr. Anderson’s ability to return and resume work was contingent on the acceptance by Boeing of a medical authorization form known as a Return to Work/Functional Capacities form. On May 15, 2012, Mr. Anderson’s psychiatrist, Dr. Frederick, authorized his return to work by noting Mr. Anderson’s bipolar diagnosis, some “cognitive side effects” and no restrictions to his physical capabilities.53 Significantly, a Return to Work authorization does not fulfill an employer’s duty to engage in an interactive discussion regarding reasonable accommodations.54 An evaluation by Boeing Medical only screens for physical limitations, as it does not require input for psychiatric or mental limitations or request information regarding plausible accommodations.55 The day before Mr. Anderson returned to work, Boeing EAP cleared him from an “EAP perspective” and without comment on the need to accommodate his mental health disorder in the workplace.56 Upon Mr. Anderson’s return to work in May 2012 (his second return from a medical leave of absence while Ms. Binford served as the assigned HR Generalist), Ms. Binford claimed to have met with Mr. Anderson; she did not, however, initiate any discussion as to the potential need for accommodations following an employer-forced leave due to medical issues.57 Ms. Binford specifically renounced any responsibility of Boeing to engage Mr. Anderson in the interactive accommodation process following his return from medical leave in 2012.58 It appears that Ms. Binford’s lack of any appreciable experience in guiding an employee with a mental health disability through the interactive process led her to deny her employer’s obligation to explore accommodation alternatives with Mr. Anderson.59 52 Cameron Decl. Ex. H (Humphries Dep.126:25-137:23, 167:8-172:3, 174:13-177:6, 177:17-178:22) (Dkt. #42-36), Ex. H-7 (Dkt. #42-43), Ex. H-8 (Dkt. #42-44). 53 Cameron Decl. Ex. G-8 (Dkt.# 42-31); Soleman Decl. Ex. 20 (Dkt.# 19-21); Frederick Decl. Ex. A (Dkt.# 41, p. 6) (The Return to Work/Functional Capacities form noticeably does not include a field or column to indicate limitations/restrictions relating to mental health impairments, it covers only physical restrictions such as standing, lifting, walking, etc.). 54 Cameron Decl. Ex. G (Klotz Dep. 87:6-16) (Dkt. #42-23). 55 Cameron Decl. Ex. G (Klotz Dep. 77:18-78:14, 81:16-82:8, 84:10-85:9, 157:8-158:21) (Dkt. #42-23). 56 Cameron Decl. Ex. H-7 (Dkt.# 42-43). 57 Lonnquist MSJ Decl. Ex. 7 (Binford Dep. 144:18 – 146:19). 58 Lonnquist MSJ Decl. Ex. 7 (Binford Dep. 150:20 – 151:8; 160:25 – 162:23). 59 Lonnquist MSJ Decl. Ex. 7 (Binford Dep. 167:16-25). Case 2:15-cv-01860-TSZ Document 54 Filed 09/08/16 Page 14 of 30 PLAINTIFFS’ MOTION FORPARTIAL SUMMARY JUDGMENT (2:15-cv-01860-TSZ) - Page 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 The failure by Boeing to engage with Mr. Anderson regarding disability accommodations continued even in the face of performance difficulties following his return from medical leave. On July 19, 2012, Supervisor Hanson reported to Ms. Binford that she had observed Mr. Anderson losing focus, appearing to lack direction, and needing clarification when engaging in conversation, in addition to being directed explicitly not to perform certain tasks.60 Similarly, on August 15, 2012, Ms. Binford created a record that again detailed the need to direct Mr. Anderson to stay on task and avoid dedicating effort toward inconsequential or prohibited projects.61 Despite these indications that Mr. Anderson’s mental health disability continued to influence his efficacy at work,62 Ms. Binford simply ignored her responsibility as an HR professional to engage Mr. Anderson about the need for accommodations that may provide assistance or empower him with tools to become a better performing employee.63 Because Ms. Binford opined that Mr. Anderson was an obstinate and underperforming employee, rather than truly disabled, her personal bias obviously interfered with executing her legal duties on behalf of Boeing.64 Unrelated to any performance issues, Mr. Anderson received notification in the summer of 2012 that his position as Quality Engineer 5 was selected for a staffing elimination from the workgroup. Mr. Anderson sought replacement positions within Boeing and successfully obtained, through his own efforts, a position as a Lean Practitioner 4 in Auburn.65 It remains undisputed that Mr. Anderson competed for the Lean Practitioner 4 position and Boeing hired him because it deemed him capable of performing the essential job functions, and without any discussion about the need to implement reasonable accommodations. 60 Cameron Decl. Ex. C-6 (Dkt.# 42-14), Ex. E-3 (Dkt.# 42-20). 61 Cameron Decl. Ex. C-7 (Dkt.# 42-15, p. 2). 62 J. Frederick Decl. (Dkt. #41). 63 Lonnquist MSJ Decl. Ex. 7 (Binford Dep. 214:19 – 216:3). 64 Lonnquist MSJ Decl. Ex. 7 (Binford Dep. 121:3-19; 182:10-24). 65 Boeing does not contend that it provided Mr. Anderson this position as a form of accommodation. Cameron Decl. Ex. G (Klotz Dep. 137:25-138:5) (Dkt. #42-23). Case 2:15-cv-01860-TSZ Document 54 Filed 09/08/16 Page 15 of 30 PLAINTIFFS’ MOTION FORPARTIAL SUMMARY JUDGMENT (2:15-cv-01860-TSZ) - Page 11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 IV. EVIDENCE RELIED UPON Plaintiffs rely on the pleadings on file with the Court, including those filed in response to Defendant Boeing’s Motion for Summary Judgment, in addition to the following separately filed pleadings: 1. Declaration of Judith A. Lonnquist, with attached exhibits. V. AUTHORITY AND ARGUMENT During the period of Plaintiff John Anderson’s employment in 2011 through 2012, Boeing received notification of his bipolar diagnosis, observed him to exhibit disruptive and erratic behaviors, required Mr. Anderson to take medical leave and undergo a Fitness-For-Duty examination, and obtained knowledge that his mental health disability impacted his job performance. Instead of recognizing these obvious disability indicators, Boeing chose to ignore its responsibilities because Mr. Anderson had apparently failed to utter the correct “magic words.”66 Not only were the observations by Boeing personnel enough to trigger the employer’s duty to engage in the interactive accommodation process, but Boeing exacerbated its liability by way of deliberate indifference to Mr. Anderson when he returned to work following each medical leave of absence.67 Boeing simply cannot put forth any credible evidence to demonstrate that it engaged timely with Mr. Anderson during the period of 2011-2012 for the purpose of discussing his disability and potential need for accommodations. Upon becoming aware of Mr. Anderson’s disruptive behaviors and mental health disability, Boeing had a mandatory duty to take positive steps toward accommodating its employee. Holland v. Boeing Co., 90 Wn.2d 384, 388-89, 583 P.2d 621 (Wash. 1978). This is 66 A disabled worker need not speak any magic words or even utter the term “accommodation” before he is afforded a right to engage in the interactive accommodation process. Barnett, 228 F.3d at 112; Schmidt v. Safeway, Inc., 864 F.Supp. 991, 997 (D.Or. 1994). 67 EEOC v. Sears, Roebuck & Co., 417 F.3d 789, 806-07 (7th Cir. 2005) (an employer flunks its obligation to engage in the interactive process when it sits behind a closed door and fails to offer accommodation alternatives); Lonnquist MSJ Decl. Ex. 7 (Binford Dep. 75:1 – 76:19; 99:25 – 101:3; 150:20 – 151:8; 160:25 – 162:23). Case 2:15-cv-01860-TSZ Document 54 Filed 09/08/16 Page 16 of 30 PLAINTIFFS’ MOTION FORPARTIAL SUMMARY JUDGMENT (2:15-cv-01860-TSZ) - Page 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 typically accomplished through interactive accommodation process.68 The evidence of outright inaction by Boeing establishes legal liability regarding Mr. Anderson’s failure to accommodate claim. An employer may proffer minimal efforts as a smoke screen for a truly good faith interactive process, but it will incur statutory liability when it cannot prove undue burden or any meaningful attempts to accommodate Mr. Anderson in 2011-2012. Frisino v. Seattle Sch. Dist. No. 1, 160 Wash. App. 765, 782, 249 P.3d 1044 (Wash. Ct. App. 2011), review denied, 172 Wn.2d 1013, 259 P.3d 1109 (Wash. 2011). A. Summary Judgment Standard This Court is empowered to grant summary judgment relief when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Wash. Mut. Inc. v. United States, 636 F.3d 1207, 1216 (9th Cir. 2011) (quoting Fed. R. Civ. P. 56(a)). A party may move for summary judgment by identifying a specific claim, or part of a claim, upon which relief is sought. Fed. R. Civ. P. 56(a). The moving party is initially responsible to put forth pleadings, admissions or omissions to demonstrate an absence of genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317. 323, 106 S.Ct. 2548 (1986). A material fact is probative and disputed if a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S.Ct. 2505 (1986). If the evidence submitted fails to demonstrate a legitimate dispute or is not otherwise significantly probative, summary judgment may be granted. Anderson, 477 U.S. at 249, 255. B. As a Matter of Law, Mr. Anderson is Entitled to Partial Summary Judgment Based on Boeing’s Failure to Accommodate in 2011. Washington law requires employers like Boeing to take timely affirmative measures to establish reasonable accommodations for a disabled employee. Dean v. Mun. of Metro. Seattle, 104 Wn.2d 627, 639, 708 P.2d 393 (Wash. 1985); Pulcino v. Federal Express Corp., 141 Wn.2d 68 RCW 49.60.040(7)(d). Case 2:15-cv-01860-TSZ Document 54 Filed 09/08/16 Page 17 of 30 PLAINTIFFS’ MOTION FORPARTIAL SUMMARY JUDGMENT (2:15-cv-01860-TSZ) - Page 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 629, 639, 9 P.3d 787 (Wash. 2000), superseded by statute, Frisino, 160 Wash. App. at 778. When a disability is known and capable of being accommodated, an employer is under an obligation to take positive steps toward accommodating the employee. Goodman v. Boeing Co., 127 Wn.2d 401, 408, 899 P.2d 1265 (Wash. 1995) (quoting Holland v. Boeing Co., 90 Wn.2d 384, 389, 583 P.2d 621 (Wash. 1978)). Courts repeatedly have ruled on the affirmative obligation of an employer reasonably and timely to accommodate a worker with a disability. Downey v. Crowley Marine Servs. Inc., 236 F.3d 1019, 1022 (9th Cir. 2001).69 As the undisputed record demonstrates, Boeing paid attention to Mr. Anderson only when it regarded him to be disruptive, as no Boeing personnel otherwise exercised any appreciable effort to interact with Mr. Anderson or establish reasonable accommodations.70 An employee may maintain a stand-alone claim for failure to accommodate, separate from a disparate treatment claim, when an employer disregards the interactive process and fails to establish reasonable accommodations. Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 145, 94 P.3d 930 (Wash. 2004) (citing Doe v. Boeing Co., 121 Wn.2d 8, 17, 846 P.2d 531 (Wash. 1993)), superseded by statute, Frisino, 160 Wash. App. at 778; see also WAC 162-22-025(2). A flexible, good faith exchange of information is required in order to determine the need to accommodate, or to evaluate various accommodation alternatives. Frisino, 160 Wash. App. at 779-80. Boeing admits that the EEOC provides authoritative guidance for accommodating persons with mental health disorders and there are numerous methods of accommodating and employee with a mental health disability.71 In order to establish his claim for failure to accommodate, Mr. Anderson must prove several elements: 1) That his bipolar disorder had a substantially limiting effect on his ability to perform his job; 69 The Downey decision includes Judge Rothstein’s analysis of an employer’s duty to accommodate under WLAD. 70 Lonnquist MSJ Decl. Ex. 7 (Binford Dep. 75:1 – 76:19; 99:25 – 101:3; 150:20 – 151:8; 160:25 – 162:23). 71 Lonnquist MSJ Decl. Ex. 7 (Binford Dep. 117:1-9; 164:1-6). Case 2:15-cv-01860-TSZ Document 54 Filed 09/08/16 Page 18 of 30 PLAINTIFFS’ MOTION FORPARTIAL SUMMARY JUDGMENT (2:15-cv-01860-TSZ) - Page 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 2) That he was qualified to perform the essential functions of his position; 3) That the employer received notice of the bipolar disorder or was shown to the employer to exist in fact;72 and 4) That Boeing failed in 2011-2012 to reasonably accommodate Mr. Anderson’s psychiatric disability. Davis v. Microsoft Corp., 149 Wn.2d 521, 532, 70 P.3d 126 (Wash. 2003) (citing Hill v. BCTI Income Fund I, 144 Wn.2d 172, 192-93, 23 P.3d 440 (Wash. 2001)), superseded by statute, Frisino, 160 Wash. App. at 778; see also WPI 330.33. Because no reasonable jury could find in favor of Boeing on any of these elements, much less find that it acted in good faith, Mr. Anderson is entitled to summary judgment on his reasonable accommodation claim. 1. Mr. Anderson’s Bipolar Disorder Impacted His Ability to Perform the Job. Due to a medical-related absence from the workplace in 2011 and his subsequent difficulties with staying focused on work tasks, Mr. Anderson’s psychiatric disability of bipolar disorder meets the very definition of having a substantial limitation on job performance. Boeing knew that his erratic behaviors led to an extended absence from the workplace, and that he experienced performance difficulties in the same year.73 Even if Boeing attempts to claim ignorance about Mr. Anderson’s actual bipolar diagnosis, it clearly had sufficient information about his mental health condition to indicate the existence of a disability and potential need for accommodation.74 It is also undisputed that Boeing made a record of Mr. Anderson’s bipolar health condition in 2011 and 2012. Bipolar disorder is a “mental… or psychological disorder,” RCW 49.60.040(7)(c), which the Equal Employment Opportunity Commission (“EEOC”) has 72 See also RCW 49.60.040(7)(d). 73 Lonnquist MSJ Decl. Ex. 7 (Binford Dep. 47:6-19); Soleman Decl. Ex. 16 (Dkt. #19-17). 74 See Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 313-14 (3rd Cir. 1999) (employer knowledge of psychiatric symptoms at work and subsequent medical leave is more than sufficient notice to trigger the interactive process); see also O’Donnell v. Gonzolez, 2007 U.S. Dist. LEXIS 27149, *29 (D.Mass. 2007). Case 2:15-cv-01860-TSZ Document 54 Filed 09/08/16 Page 19 of 30 PLAINTIFFS’ MOTION FORPARTIAL SUMMARY JUDGMENT (2:15-cv-01860-TSZ) - Page 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 determined “substantially limits brain function.” 29 C.F.R. § 1630.2(j)(1)(vii), (3)(iii), (4)(iv) (2011).75 As the EEOC has recognized, a disorder that substantially limits brain function “by [its] inherent nature should easily be found” to constitute a disability. Id. § 1630.2(j)(4)(iv). This is true even where the impairment is episodic and where a mitigating measure, such as medication, is in place. Id. § 1630.2(j)(1)(vi)-(vii).76 Even when a mental health disorder manifests with disruptive behaviors, such as the case here, Mr. Anderson is deserving of protection and genuine efforts to provide reasonable accommodation.77 2. Mr. Anderson Was Qualified to Perform the Quality Engineer 5 Position During the Period of 2010-2012. Boeing concedes that Mr. Anderson was qualified to perform the essential functions of the Quality Engineer position during the relevant time period.78 3. Mr. Anderson’s Workplace Behaviors and Need for Medical Leave Notified Boeing of His Disability Status. While Boeing will certainly construct the false notion that it lacked notice of Mr. Anderson’s bipolar disorder in 2011, any alleged lack of knowledge is based upon the inaction of Boeing personnel and its own willful ignorance. The HR Generalist for Mr. Anderson knew about his disruptive behaviors and medical leave, yet did nothing to engage Mr. Anderson in the interactive process or to discuss plausible accommodations.79 This failure properly to engage Mr. Anderson by HR personnel cannot be excused, nor can Boeing capitalize on the mishandling of this disabled employee as evidentiary support for its asserted lack of knowledge. If Boeing had engaged in a meaningful interactive process, it would be impossible to claim ignorance.80 75 EEOC regulations implementing the Americans with Disabilities Act, 42 U.S.C.S. §§ 12101-12213, are given “controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Chevron USA Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44, 104 S.Ct. 2778 (1984). 76 See also RCW 49.60.040(7)(b) (“A disability exists whether it is temporary or permanent,… mitigated or unmitigated, or whether or not it limits the ability to work generally or work at a particular job….). 77 Cf. Gambini v. Total Renal Care, Inc., 486 F.3d 1087, 1094-95 (9th Cir. 2007) (WLAD prohibits employer discipline of an employee for behavior that is a manifestation of bipolar disorder). 78 Cameron Decl. Ex. J p. 16-17 (RFA 50) (Dkt. # 42-48). 79 Lonnquist MSJ Decl. Ex. 7 (Binford Dep. 75:1 – 76:19; 99:25 – 101:3; 150:20 – 151:8; 160:25 – 162:23). 80 Permitting an employer to bury its head in the sand would constitute a reward for behavior that contradicts the goals of providing reasonable accommodations under non-discrimination statutes like WLAD. See Sommer v. Dept. Social & Health Servs., 104 Wn. App. 160, 174, 15 P.3d 664 (Wash. Ct. App. 2001) (employer engaged in a pattern Case 2:15-cv-01860-TSZ Document 54 Filed 09/08/16 Page 20 of 30 PLAINTIFFS’ MOTION FORPARTIAL SUMMARY JUDGMENT (2:15-cv-01860-TSZ) - Page 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 Such an assertion by Boeing also fails to account for its knowledge via Boeing Medical and Boeing EAP’s information about Mr. Anderson’s disability. Mr. Anderson needed only to provide “simple notice” to Boeing, by his words or actions, of his disability status and the potential need for accommodation. See Holland v. Am. West Airlines, 416 F. Supp. 2d 1028, 1034 (W.D. Wash. 2006); Sommer v. Dept. Social & Health Servs., 104 Wn. App. 160, 173, 175, 15 P.3d 664 (Wash. Ct. App. 2001). Washington courts do not require a disabled worker to request an accommodation in order to trigger Boeing’s duty to accommodate. Downey, 236 F.3d at 1022-23.81 This notice requirement “is rooted in common sense” and can be established “if the disability is obvious – which is to say, if the employer knew or reasonably should have known that the employee was disabled,” and regardless of whether the employee requested a specific accommodation or even acknowledges his disability status. Brady v. Wal-Mart Stores, Inc., 531 F.3d 127, 135 (2nd Cir. 2008). In Brady, the Second Circuit held that the employer’s duty to accommodate the employee, Mr. Brady, who had cerebral palsy, was triggered by the employee’s obvious disability and employer’s complaints about his performance. Id. As Judge Calabresi wrote: Indeed, a situation in which an employer perceives an employee to be disabled but the employee does not so perceive himself presents an even stronger case for mitigating the requirement that the employee seek accommodation. In such situations, the disability is obviously known to the employer, while the employee, because he does not consider himself to be disabled, is in no position to ask for an accommodation. A requirement that such an employee ask for accommodation would be tantamount to nullifying the statutory mandate of accommodation for one entire class of disabled [ ] employees.” Id. at 135 (emphasis added).82 of inaction and administrative avoidance); see also EEOC v. Sears, Roebuck & Co., 417 F.3d at 806-07 (employer cannot willfully ignore its disabled employee by sitting behind a closed door). 81 Citing Curtis v. Security Bank of Wash., 69 Wn. App. 12, 1819, 847 P.2d 507 (Wash. Ct. App. 1993), review denied, 121 Wn.2d 1031, 856 P.3d 383 (Wash. 1993). 82 Like Mr. Brady, Mr. Anderson was in denial about his illness and its effect on his performance. Cameron Decl. Ex. B (Frederick Dep. 76:24-77:11) (Dkt. #42-7), Ex. G-3 (Dkt. #42-26). Case 2:15-cv-01860-TSZ Document 54 Filed 09/08/16 Page 21 of 30 PLAINTIFFS’ MOTION FORPARTIAL SUMMARY JUDGMENT (2:15-cv-01860-TSZ) - Page 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 Simply put, Boeing observed the manifestations of Mr. Anderson’s psychiatric disability and provided him medical leave for this condition, which is more than sufficient notice of a disability that triggered the statutory need for an interactive accommodation process.83 4. Boeing Failed to Explore and Adopt Reasonable Methods of Accommodation for Mr. Anderson’s Bipolar Disorder. Upon recognition of Mr. Anderson’s disability, Boeing had a duty to take positive steps toward establishing reasonable accommodations. Sommer, 104 Wash. App. at 172, 174-75 (employer may not leave the initiative up to the employee, but, rather, must engage in an interactive process, assist the employee, and work to determine whether and what accommodation may be necessary); Goodman v. Boeing Co., 127 Wn.2d 401, 408, 899 P.2d 1265 (1995); Dean, 104 Wn.2d at 638-39 (employer liable when it failed to determine the extent of the employee’s disability, neglected the employee’s need for special attention and did not take affirmative steps). Boeing can only defend this failure to accommodate claim by demonstrating that it actually offered Mr. Anderson a reasonable accommodation in 2011-2012, or by proving that the only available accommodations caused an undue hardship. See e.g. Kumar v. Gate Gourmet, Inc., 108 Wn.2d 481, 502, 325 P.3d 193 (Wash. 2013) (religious accommodation); see also WAC 162-22-075. Boeing’s inattention and choice of limited accommodation efforts were at its own peril, as it now faces statutory liability without evidence of a genuine issue of undue burden or any good faith attempts to accommodate Mr. Anderson in 2011-2012. Frisino, 160 Wash. App. at 782. Boeing is also liable as a matter of law because the company failed to accommodate Mr. Anderson under circumstances where reasonable accommodations were available and plausibly could have assisted Mr. Anderson in the performance of his duties. See Kimbro v. Atlantic Richfield Co., 889 F.2d 869, 879 (9th Cir. 1989); see also Humphrey v. Mem. Hosp. Ass’n, 239 83 Banks v. Yoke’s Foods, Inc., 2014 U.S. Dist. LEXIS 173623, *11 (E.D. Wash. 2014) (employer knowledge of psychiatric condition and employee’s use of medical leave constituted sufficient notice); Taylor 184 F.3d at 313-14 (employer observation of psychiatric behavior at work and subsequent medical leave is more than sufficient notice to trigger the interactive process). Case 2:15-cv-01860-TSZ Document 54 Filed 09/08/16 Page 22 of 30 PLAINTIFFS’ MOTION FORPARTIAL SUMMARY JUDGMENT (2:15-cv-01860-TSZ) - Page 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 F.3d 1128, 1136 (9th Cir. 2001) (holding that an ADA plaintiff is not required to show that a requested accommodation is certain or even likely to be successful in order to prove that it is a reasonable accommodation). Not only was Mr. Anderson’s bipolar disorder entirely capable of accommodation, but Boeing simply failed to explore meaningful accommodation alternatives. Boeing’s own HR staff admitted there are various methods of accommodating persons with mental health conditions.84 Because Boeing never bothered to implement or even consider reasonable accommodations in 2011-2012, Mr. Anderson is under no obligation to prove that reasonable accommodations were plausible. Even so, Boeing is liable for having failed to consider the following non-exclusive accommodation alternatives: 1. Daily one-on-one meetings with supervisor; 2. Detailed and updated written instructions regarding performance tasks and supervisory expectations; 3. Intermittent leave;85 4. Leave of absence;86 5. Modified work schedule/telecommuting;87 6. Confidential coworker designee for informal monitoring of behavior/mood; 7. Weekly monitoring/counseling at Boeing Health/EAP; 8. Coaching of supervisor regarding mental health disorder and preferred communication methods; and 9. Reassignment.88 The fact is that employers and HR departments are frequently better equipped to discuss these accommodation options with an employee like Mr. Anderson.89 Boeing simply mishandled Mr. Anderson when it repeatedly disregarded its duty timely to engage him in a discussion to evaluate these reasonable accommodation methods, in addition to others. It is clear that Boeing failed to meet its legal obligations in regard to this employee with a known 84 Lonnquist MSJ Decl. Ex. 7 (Binford Dep. 117:1-9; 164:1-6). 85 WAC 162-22-065(2)(a). 86 Kimbro, 889 F.2d at 878-89. 87 WAC 162-22-065(2)(b). 88 MacSuga v. Spokane County, 97 Wash. App. 435, 442, 983 P.3d 1167 (Wash. Ct. App. 1999) (citing 29 C.F.R. § 1630.2(o)(2)(ii)). 89 Barnett, 228 F.3d at 1113 (“Employees do not have at their disposal the extensive information concerning possible alternative positions or possible accommodations which employers have. Putting the entire burden on the employee to identify a reasonable accommodation risks shutting out many workers simply because they do not have the superior knowledge of the workplace that the employer has.” (emphasis supplied)). Case 2:15-cv-01860-TSZ Document 54 Filed 09/08/16 Page 23 of 30 PLAINTIFFS’ MOTION FORPARTIAL SUMMARY JUDGMENT (2:15-cv-01860-TSZ) - Page 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 psychiatric disability. No reasonable jury would think otherwise and summary judgment should be granted. C. As a Matter of Law, Mr. Anderson is Similarly Entitled to Partial Summary Judgment Based on Boeing’s Failure to Accommodate in 2012. For the same reasons stated above, Boeing is also liable to Mr. Anderson for its failure to engage in and explore accommodation alternatives in 2012. Boeing observed firsthand the same distracting behaviors in February 2012, which caused the company to place him on leave and undergo a Fitness-For-Duty evaluation.90 Boeing concedes that the manifestations of Mr. Anderson’s bipolar condition in 2011 were the same or similar to his erratic conduct in 2012.91 While Boeing personnel first contemplated disciplining Mr. Anderson, his behaviors were such that they received authorization to place Mr. Anderson on leave and require him to undergo a Fitness-For-Duty examination.92 As a result, Boeing created a record of Ms. Anderson’s bipolar disorder and received medical authorizations that endorsed his return to work at the end of May 2012.93 After Mr. Anderson returned from medical leave, it also became obvious to Boeing that Mr. Anderson experienced performance difficulties.94 Despite these circumstances that triggered Boeing’s duty to engage Mr. Anderson and provide reasonable accommodations, there is no evidence that company personnel took this required action.95 D. As a Matter of Law, Boeing is Liable for its Lack of Good Faith and Failure to Engage in the Interactive Process. An employer like Boeing is clearly obligated to engage in the interactive accommodation process and, in doing so, cooperate with the disabled employee in good faith. Goodman, 127 90 Binford Decl. Ex. 2 (Dkt. #20, p. 17-20); Lonnquist MSJ Decl. Ex. 7 (Binford Dep. 87:9 – 88:4; 121:3-19; 122:5 – 123:13). 91 Id. 92 Lonnquist MSJ Decl. Ex. 7 (Binford Dep. 121:3-19; 122:5 – 123:13). 93 Cameron Decl. Ex. G-8 (Dkt.# 42-31); Soleman Decl. Ex. 20 (Dkt.# 19-21); Frederick Decl. Ex. A (Dkt.# 41, p. 6). 94 Cameron Decl. Ex. C-6 (Dkt.# 42-14); Ex. E-3 (Dkt.# 42-20); Ex. C-7 (Dkt. #42-15, p. 2). 95 Lonnquist MSJ Decl. Ex. 7 (Binford Dep. 75:1 – 76:19; 99:25 – 101:3; 150:20 – 151:8; 160:25 – 162:23; 214:19 – 216:3). Case 2:15-cv-01860-TSZ Document 54 Filed 09/08/16 Page 24 of 30 PLAINTIFFS’ MOTION FORPARTIAL SUMMARY JUDGMENT (2:15-cv-01860-TSZ) - Page 20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 Wn.2d at 408-09; Frisino, 106 Wash. App. at 780; Humphrey, 239 F.3d at 1137-38; Beck v. University of Wis. Bd. of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996). A breakdown in the interactive accommodation process will form an independent basis of liability for the employer. Brady, 531 F.3d at 134-36; Zivkovic v. S. Cal. Edison Co., 302 F.3d 1080, 1089-90 (9th Cir. 2002); Humphrey, 239 F.3d at 1139; Barnett, 228 F.3d at 1116-17 (“Without the possibility of liability for failure to engage in the interactive process, employers would have less incentive to engage in a cooperative dialogue and to explore fully the existence and feasibility of reasonable accommodations.”); Sommer, 104 Wn. App. at 172, 174-75. See also Wysinger v. Auto. Club of So. Cal., 157 Cal.App.4th 413, 424-25 (Cal.Ct.App.2007) (interactive process determines which accommodation is required, and could reveal solutions that neither party envisioned). The employer’s solemn responsibility to host an interactive dialogue is all the more important under circumstances, such as the case at bar, where the employee is dealing with a mental health issue. When the nature of a disability does not provide an objective standard for reasonable accommodation, trial and error is necessary until the parties find success. Frisino, 160 Wash. App. at 782. Also, when a case involves “an employee with mental illness, the communication process becomes more difficult” and requires good faith efforts from the employer. Bultemeyer v. Fort Wayne Comm. Sch., 100 F.3d 1281, 1284 (7th Cir. 1996). Boeing knew about Mr. Anderson’s bipolar disorder, but did nothing to assist him in the workplace. Boeing may defend this claim by establishing evidence of its good faith engagement, which is demonstrated by cooperative actions to promote the identification and implementation of appropriate accommodations for Mr. Anderson. Barnett, 228 F.3d at 1114-15. It is unable proffer such evidence, however, in regard to the period of 2011 through 2012. More to the point, Boeing cannot establish its good faith efforts to provide accommodations when it “engaged in a long-term pattern of inaction, stalling, and administrative avoidance.” Sommer, 104 Wash. App. at 174. Case 2:15-cv-01860-TSZ Document 54 Filed 09/08/16 Page 25 of 30 PLAINTIFFS’ MOTION FORPARTIAL SUMMARY JUDGMENT (2:15-cv-01860-TSZ) - Page 21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 E. As a matter of law, Value Options (now known as Beacon Health Options) was Boeing’s agent for purposes of Mr. Anderson’s Fitness-For-Duty examination and resulting medical leave of absence in 2012. As a matter of law, Value Options was Boeing’s agent for the purposes of assessing Mr. Anderson’s Fitness-For-Duty in 2012. An express or implied agency relationship may exist when one party acts at the instance of and, in some material degree, under the direction and control of another. CKP, Inc. v. GRS Constr. Co., 63 Wash. App. 601, 607-08 (Wash. Ct. App. 1991) (citing Hewson Constr., Inc. v. Reintree Corp., 101 Wn.2d 819, 823, 685 P.2d 1062 (Wash. 1984)). An agent is distinguished from an independent contractor who is not subject to control as to the means employed to perform a job. CKP, Inc., 63 Wash. App. at 608 (citing Freeman v. Navarre, 47 Wn.2d 760, 767, 289 P.2d 1015 (Wash. 1955); Patent Scaffolding Co. v. Roosevelt Apartments, 171 Wash. 507, 510, 18 P.2d 857 (Wash. 1933), abrogated on other grounds in Crown Controls, Inc. v. Smiley, 110 Wn.2d 695, 700, 706, 756 P.2d 717 (Wash. 1988)). The agency concept is flexible: the relation may be established for a limited purpose, or it may be broad. CKP, Inc., 63 Wash. App. at 608. There is no question that Value Options was Boeing’s agent for purpose of Boeing’s assessment of Mr. Anderson’s Fitness-For-Duty beginning in February 2012. Value Options acted “at the instance” of Boeing: per contract, Value Options performed the functions of Boeing EAP during the relevant time period.96 In that role Value Options acted “in some material degree” under the direction of Boeing for the purpose of one of these functions: conducting psychological FFD examinations of Boeing employees, in accordance with Boeing’s procedure and employed staff exclusively dedicated to Boeing and fully conversant with Boeing protocols 96 A corporation such as Value Options can only act through its agents, including its officers and employees, and when its agents act within the scope of their actual or apparent authority, their actions are the actions are the actions of the corporation itself. Mauch v. Kissling, 56 Wn. App. 3212, 316, 783. P.2d 601 (Wash. 1989); American Seamount Corp. v. Science & Eng’g Assoc., Inc., 61 Wn. App. 793, 796-97, 812 P.2d 505 (Wash. 1991); 6 Wash. Prac., Wash. Pattern Jury Instr. Civ. WPI 50.18 (6th ed.) (“Corporation Acts Through its Employees – No Issue as to Scope of Agency”). It is undisputed that Jodi Humphries and her co-workers were employees of Value Options and acted within their authority regarding Mr. Anderson’s Fitness-For-Duty in 2012. Therefore, the actions of these employees are imputable to Value Options. Case 2:15-cv-01860-TSZ Document 54 Filed 09/08/16 Page 26 of 30 PLAINTIFFS’ MOTION FORPARTIAL SUMMARY JUDGMENT (2:15-cv-01860-TSZ) - Page 22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 regarding Fitness-For-Duty. There can be no question that Value Options’ assessment of Mr. Anderson’s Fitness-For-Duty beginning in February and ongoing through May 2012 was as an agent for Boeing and constitutes actual knowledge to Boeing. F. As a matter of law, Value Options’ Knowledge of Mr. Anderson’s Medical Condition Gained in the Assessment of Mr. Anderson’s Fitness for Duty through his Return to Work in 2012 is Imputable to Boeing. Black letter law imputes to Boeing the knowledge of Mr. Anderson’s disability and limitations received by Boeing’s agent Value Options and its employees while performing the functions of Boeing EAP. In Goodman v. Boeing, the court held that plaintiff-employee’s medical information received by Boeing’s worker’s compensation processing firm Axia (agent) was imputable to the employer Boeing (principal). 75 Wn. App. 60, 85-86 (Wash. Ct. App. 1994), aff’d. 127 Wn.2d 401, 406, 899 P.2d 1265 (Wash. 1995).The Washington State Court of Appeals rejected employer Boeing’s contention that it should not be bound by information received by its agent Axia if Axia was not required to relay such information to Boeing. Id. The court held that Boeing was bound by a notification directed toward its agent who “has, or appears to have, authority in connection with it, either to receive it, to take action upon it, or to inform the principal or some other agent who has duties in regard to it.” Goodman, 75 Wn. App. at 85-86 (citing Roderick Timber Co. v. Willapa Harbor Cedar Prods., Inc., 29 Wn. App. 311, 317, 627 P.2d 1352 (Wash. Ct. App. 1981) (quoting Rest.(Second) of Agency § 268 cmt. c (1958)). See also Pilling v. Eastern & Pac. Enters. Trust, 41 Wn. App. 158, 163, 702 P.2d 1232 (Wash. Ct. App. 1985) (citing Rest. (Second) of Agency §§ 272, 275 (1958)). In Goodman, the Axia supervisor on Ms. Goodman’s worker’s compensation claim had the authority to receive medical documentation and convey the information to other departments at Boeing. 75 Wn. App. at 86. This was sufficient to impute to Boeing the information Axia received regarding Ms. Goodman over the course of two years through her claims for reimbursement and her Case 2:15-cv-01860-TSZ Document 54 Filed 09/08/16 Page 27 of 30 PLAINTIFFS’ MOTION FORPARTIAL SUMMARY JUDGMENT (2:15-cv-01860-TSZ) - Page 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 physician’s letters to Axia regarding Ms. Goodman’s medical condition. Id. This includes the information which Axia was not required to, nor did it, convey to Boeing. Id. In this case, it is undisputed that Value Options had the authority to receive information regarding Mr. Anderson and to take action upon it or inform Boeing in regard to it. In this case, it undisputed that several Value Options employees, performing the role of Boeing EAP, received information regarding Mr. Anderson’s medical condition, for example, in the course of evaluating Mr. Anderson’s psychological condition and communicating with Mr. Anderson and his medical providers during Mr. Anderson’s 2012 medical leave of absence.97 Mr. Anderson signed releases to permit Boeing EAP to obtain and share his medical information with Boeing management, human resources and Boeing Medical, among other Boeing departments.98 Boeing EAP can contact Boeing Disability Services (Reasonable Accommodation), Leave Services, or Medical, regarding employees.99 Boeing EAP can provide information about an employee to Boeing with employee authorization100, and is required to do so (without employee authorization) as part of the Fitness-For-Duty process.101 Therefore, as a matter of law, the information regarding Mr. Anderson which was received by Value Options, as an agent for Boeing, is imputable to Defendant Boeing. VI. CONCLUSION Boeing cannot refute with any credibility its direct knowledge of Mr. Anderson’s psychiatric disability, nor can it establish any meaningful attempts to accommodate Mr. Anderson in 2011 and 2012. Moreover, Boeing EAP was Boeing’s agent when conducting the 97Frederick Decl. p. 2 (Dkt. #41); Cameron Decl. Ex. H (Humphries Dep. 119:14-122:1) (Dkt. #42-36), Ex. H-1 (Dkt. # 42-37, p. 4). 97 Cameron Decl. Ex. G (Klotz Dep. 147:4-12) (Dkt. #42-23), Ex. H (Humphries Dep. 122:17-123:1) (Dkt. #42-36), Ex. H-1 (Dkt. #42-37, p.3), Ex. H-2 (Dkt. #42-38). 98 Cameron Decl. Ex. H (Humphries Dep. 146:22-149:25) (Dkt. #42-36), Ex. H-1 (Dkt. #42-37), Ex. H-2 (Dkt. #42- 38). 99 Cameron Decl. Ex. H (Humphries Dep. 30:5-32:23, 89:4-16, 123:18-125:12) (Dkt. #42-36). 100 Cameron Decl. Ex. H (Humphries Dep. 192:13-25) (Dkt. #42-36). 101 Cameron Decl. Ex. H (Humphries Dep. 25:10-26:7, 27:23-29:14, 88:12-89:3, 171:1-174:9, 177:3-6) (Dkt. #42- 36). Case 2:15-cv-01860-TSZ Document 54 Filed 09/08/16 Page 28 of 30 PLAINTIFFS’ MOTION FORPARTIAL SUMMARY JUDGMENT (2:15-cv-01860-TSZ) - Page 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 Fitness-For-Duty procedure and communicating with Boeing Medical about the same. Based on the foregoing, Plaintiff John Anderson requests that summary judgment be granted as to his failure to accommodate claim for the period of 2011-2012. In the alternative, Plaintiff respectfully requests this Court to enter findings as a matter of law that 1) Mr. Anderson experienced a mental abnormality that substantially limited his ability to perform his job between April 12, 2011, and November 29, 2012; 2) Mr. Anderson was qualified to perform the position of Quality Engineer 5 between September 24, 2010 and November 29, 2012; 3) As of April 12, 2011, Boeing received sufficient notice of Mr. Anderson’s disability and accompanying limitations; and 4) Boeing received sufficient notice of Mr. Anderson’s disability and accompanying limitations as a result of its Fitness-For-Duty process on or about February 24, 2012. Finally, Plaintiff also requests this Court issue instructions to the jury in accordance with any of its rulings on the matters raised above. DATED this 8th day of September, 2016. LAW OFFICES OF JUDITH A. LONNQUIST, P.S. Attorneys for Plaintiffs John and Anita Anderson /s/Judith A. Lonnquist Judith A. Lonnquist, WSBA #06421 Katherine E. Cameron, WSBA #41777 1218 Third Ave., Suite 1500 Seattle, WA 98101-3021 Telephone: 206.622.2086 Fax: 206.233.9163 Email: lojal@aol.com katie@lonnquistlaw.com Case 2:15-cv-01860-TSZ Document 54 Filed 09/08/16 Page 29 of 30 PLAINTIFFS’ MOTION FORPARTIAL SUMMARY JUDGMENT (2:15-cv-01860-TSZ) - Page 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 CERTIFICATE OF SERVICE I hereby certify that on this date I electronically filed the following document: Plaintiffs’ Motion for Partial Summary Judgment, with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: Sheehan H. Sullivan Weiss, WSBA #33189 sulls@dwt.com 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 Shirin M. Soleman, WSBA #47064 shirinsoleman@dwt.com 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 DATED: September 8, 2016. s/ Ann Holiday . Ann Holiday, Legal Assistant Law Offices of Judith A. Lonnquist, P.S. 1218 Third Ave, Suite 1500 Seattle, WA 98101 Telephone: (206) 622-2086 Fax: (206) 233-9165 E-mail: ann@lonnquistlaw.com Case 2:15-cv-01860-TSZ Document 54 Filed 09/08/16 Page 30 of 30 ORDER GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT [PROPOSED] - Page 1 2:15-cv-01860 TSZ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVENUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 Hon. Thomas S. Zilly UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE JOHN ANDERSON and ANITA ANDERSON, Plaintiffs, v. THE BOEING COMPANY, Defendant. NO. 2:15-cv-01860 TSZ ORDER GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT [PROPOSED] Noting Date: September 30, 2016 THIS MATTER, having come before this Court on Plaintiffs’ Motion for Partial Summary Judgment (Dkt. #54), the Court hearing oral argument of the parties and having reviewed the pleadings and files herein, including the following documents: 1. Plaintiffs’ Motion for Partial Summary Judgment; 2. Declaration of Judith A. Lonnquist, with attached exhibits; 3. Defendant’s Response to Plaintiffs’ Motion for Partial Summary Judgment; 4. Defendant’s Responsive and Supporting Declarations, with attached exhibits; 5. Plaintiffs’ Reply; and Case 2:15-cv-01860-TSZ Document 54-1 Filed 09/08/16 Page 1 of 5 ORDER GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT [PROPOSED] - Page 2 2:15-cv-01860 TSZ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVENUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 6. Any other pleadings and records submitted in support or opposition to Plaintiffs’ Motion for Partial Summary Judgment. Following a hearing with oral argument and review of the aforementioned pleadings, and being otherwise fully informed in the premises, it is hereby ORDERED that: 1. Plaintiffs’ Motion for Partial Summary Judgment is hereby GRANTED; 2. Defendant Boeing is liable on Plaintiff John Anderson’s claim of failure to accommodate during the period of 2011 through 2012, including its failure to engage timely in the interactive accommodation process; 3. The knowledge of Value, as it relates to the Fitness-For-Duty process applicable to Plaintiff John Anderson, is imputed to Defendant Boeing; and 4. As the services administrator for Boeing’s EAP, which included oversight of the Fitness-For-Duty process pursuant to Boeing policy, Value Options served as agent to Boeing. In the alternative, the Court hereby FINDS and CONCLUDES as follows: a. Disability: There is no genuine issue of material fact and, as matter of law, Mr. Anderson suffered a psychiatric condition that substantially limited his ability to perform his job as Quality Engineer 5 between April 12, 2011, and November 29, 2012; b. Qualification: There is no genuine issue of material fact and, as a matter of law, Mr. Anderson was qualified to perform the position of Quality Engineer 5 between September 24, 2010, and November 29, 2012; c. Notice to Employer: There is no genuine issue of material fact and, as a matter of law, Boeing received sufficient notice of Mr. Anderson’s psychiatric condition and accompanying limitations as of his medical leave on or about April 12, 2011; and Case 2:15-cv-01860-TSZ Document 54-1 Filed 09/08/16 Page 2 of 5 ORDER GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT [PROPOSED] - Page 3 2:15-cv-01860 TSZ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVENUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 d. Fitness-For-Duty Leave: There is no genuine issue of material fact and, as a matter of law, Boeing received sufficient notice of Mr. Anderson’s psychiatric condition and accompanying limitations as a result of the Boeing-required Fitness-For-Duty process on or about February 24, 2012. The Court further FINDS and CONCLUDES that ____________________________ __________________________________________________________________________ _______________________________________________________________________. IT IS SO ORDERED. DONE IN OPEN COURT this _____ day of October, 2016. __________________________________ Honorable Thomas S. Zilly United States District Court Judge Presented by: LAW OFFICES OF JUDITH A. LONNQUIST, P.S. s/ Judith A. Lonnquist Judith A. Lonnquist, WSBA # 06421 Katherine E. Cameron, WSBA #41777 Attorneys for Plaintiffs 1218 Third Avenue, Suite 1500 Seattle, Washington 98101 Phone: 206-622-2086 Email: lojal@aol.com katie@lonnquistlaw.com Case 2:15-cv-01860-TSZ Document 54-1 Filed 09/08/16 Page 3 of 5 ORDER GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT [PROPOSED] - Page 4 2:15-cv-01860 TSZ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVENUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 Approved as to Form and Content; Notice of Presentation Waived: DAVIS WRIGHT TREMAINE LLP __________________________________ Sheehan H. Sullivan Weiss, WSBA #33189 Shirin M. Soleman, WSBA #47064 Attorneys for Defendant Boeing 1201 Third Avenue, Suite 2200 Seattle, Washington 98101 Phone: 206-622-3150 Email: sulls@dwt.com shirinsoleman@dwt.com Case 2:15-cv-01860-TSZ Document 54-1 Filed 09/08/16 Page 4 of 5 ORDER GRANTING PLAINTIFFS’ MOTION FOR PARTIAL SUMMARY JUDGMENT [PROPOSED] - Page 5 2:15-cv-01860 TSZ 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 LAW OFFICES OF JUDITH A. LONNQUIST, P.S. 1218 THIRD AVENUE, SUITE 1500 SEATTLE, WA 98101-3021 TEL 206.622.2086 FAX 206.233.9165 CERTIFICATE OF SERVICE I hereby certify that on this date I electronically filed the foregoing Order Granting Plaintiff’s Motion for Partial Summary Judgment [PROPOSED] with the Clerk of the Court using the CM/ECF system which will send notification of such filing to the following: NAME E-MAIL Sheehan H. Sullivan Weiss, WSBA #33189 sulls@dwt.com 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 Shirin M. Soleman, WSBA #47064 shirinsoleman@dwt.com 1201 Third Avenue, Suite 2200 Seattle, WA 98101-3045 s/Ann Holiday Ann Holiday, Legal Assistant Law Offices of Judith A. Lonnquist, P.S. 1218 Third Ave, Suite 1500 Seattle, WA 98101 Telephone: (206) 622-2086 Fax: (206) 233-9165 E-mail: ann@lonnquistlaw.com Case 2:15-cv-01860-TSZ Document 54-1 Filed 09/08/16 Page 5 of 5