Edman v. Kindred Nursing Centers West Llc

MOTION for Summary Judgment

W.D. Wash.September 1, 2016

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 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT Case No. (2:14-cv-01280-BJR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 The Honorable Barbara J. Rothstein UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE DAVID EDMAN, Plaintiff, v. KINDRED NURSING CENTERS WEST LLC, Defendant. Case No. 2:14-cv-01280-BJR DEFENDANT’S MOTION FOR SUMMARY JUDGMENT NOTE ON MOTION CALENDAR: September 23, 2016 Case 2:14-cv-01280-BJR Document 57 Filed 09/01/16 Page 1 of 26 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 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 1 Case No. (2:14-cv-01280-BJR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 I. INTRODUCTION This is an employment disability discrimination and failure to accommodate case under the Washington Law Against Discrimination (WLAD). The WLAD protects disabled employees from discrimination and mandates that employers provide employees reasonable accommodations that enable employees to perform the essential functions of their job. As set forth below, Defendant Kindred Nursing Centers West LLC, d/b/a Kindred Nursing and Rehabilitation - Arden (“Arden” or “Kindred”) reasonably accommodated Plaintiff David Edman and exemplified how an employer, when adhering to the WLAD, can facilitate a disabled employee’s success in the workplace by providing reasonable accommodation. Mr. Edman is the General Manager of Culinary and Hospitality (formerly known as the “Food Services Manager”) for Arden. He is HIV positive. It is undisputed that Mr. Edman requested (and Arden provided) reasonable accommodations in the workplace, which allowed Mr. Edman to successfully perform his job for more than a year before he sustained a work- related injury that removed him from the workplace. Yet, Mr. Edman claims that Arden should have instantaneously provided him all requested accommodations, even those that are indisputably unsupported by medical evidence (he admits he came up with them on his own and he was later able to do the job without them) and would have nullified essential functions of his job if approved by Arden. The WLAD does not impose such an obligation on employers and the Court should not permit Mr. Edman to manipulate the WLAD to obtain such an absurd result. Accordingly, there are no material issues of fact and Arden is entitled to summary judgment in its favor. II. STATEMENT OF FACTS Arden provides a full range of nursing care and social services from intensive short term rehabilitation therapy to longer-term restorative care. Typically, its patients have medical conditions that require the expertise of an interdisciplinary team of healthcare professionals. That team includes culinary staff who plan and prepare individualized meals. Declaration of Case 2:14-cv-01280-BJR Document 57 Filed 09/01/16 Page 2 of 26 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 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 2 Case No. (2:14-cv-01280-BJR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 Ryan Hammond (“Hammond Decl.”), Ex. G. Like the WLAD, Arden’s policies and procedures prohibit disability discrimination and require reasonable accommodations for employees with disabilities.1 Deposition of David L. Edman2 (“Edman Dep.”), Ex. 4. A. Arden Hires Mr. Edman as its Food Services Manager. Mr. Edman began working as its Food Services Manager (sometimes called the “Director of Dining Services” or “Dining Services Manager” and now known as the “General Manager of Culinary and Hospitality”) in July 2011. Edman Dep. 62:10-13, 63:18-21. As a Food Services Manager, Mr. Edman manages the dining services department, orders inventory, and is responsible for staff development. Because Arden is not a large nursing home and has a smaller budget, he is expected to cook. He is also responsible for writing menus, meeting with residents, and maintaining resident documentation regarding food service preferences. Edman Dep. Ex. 7, 35:12-36:7. Proper management of dining services is critical to the experience and health of residents, and attention to detail is critical to ensure meals comply with diets ordered by the residents’ healthcare providers. Edman Dep. 105:9-15, 224:22-225:2. Mr. Edman reports to Arden’s Executive Director. Edman Dep. 35:9-11. B. Mr. Edman is Open with Arden About His HIV Positive Status. Mr. Edman disclosed his HIV positive status to multiple supervisors and coworkers at Arden. In the spring of 2012, when Mr. Edman reported to Executive Director Ann Zell, he disclosed his HIV positive status to her.3 Similarly, Mr. Edman disclosed his HIV positive status 1 Arden’s policies and procedures specifically provide that individuals with disabilities should notify Human Resources and their Executive Director if they require accommodation. Edman Dep. Ex. 4. Employees should also report allegations of discrimination or retaliation to a supervisor, manager, or a Human Resources representative, or call its 24-hour compliance hotline, which allows individuals to report concerns anonymously. Id. Mr. Edman admits he received the Employee Handbook and Code of Conduct during his employment, both in hardcopy and electronically, and that he always had ready access to the current version. Edman Dep. 63:22-64:5, 68:7-69:18. 2 The Deposition of David Edman and exhibits are attached to the Hammond Declaration as Exhibits A and B, respectively. 3 Mr. Edman informed Ms. Zell that he could not take a whooping cough vaccination because of his HIV positive status. Edman Dep. 90:8-91:6. Ms. Zell excused him from being required to take the vaccine and told Mr. Edman to “let me know if you need anything.” Edman Dep. 91:7-12. Other than being excused from taking the whooping cough vaccine, Mr. Edman did not need any other accommodations at that time. Edman Dep. 96:24-97:4. Case 2:14-cv-01280-BJR Document 57 Filed 09/01/16 Page 3 of 26 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 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 3 Case No. (2:14-cv-01280-BJR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 to at least six other employees. Edman Dep. 94:15-95:4. None of these employees ever spoke negatively to Mr. Edman about his condition. Edman Dep. 96:6-9. In April 2013, after Sandra Hurd became Executive Director, Mr. Edman disclosed his HIV positive status to Ms. Hurd. Edman Dep. 123:17-22. He disclosed this information to Ms. Hurd under unusual circumstances -she drove him home in the early hours of the morning after his car broke down and he fell walking to get help.4 Edman Dep. 92:6-17. Ms. Hurd did not express any issues with his HIV positive status and later approved several days off from work while Mr. Edman recovered from the accident. Edman Dep. 89:11-15, 92:18-20. C. Mr. Edman Has Problems Maintaining Appropriate Tone and Conduct. Throughout the first few years of his employment, Mr. Edman repeatedly received coaching and discipline regarding his unacceptable communication with coworkers and residents.5 On September 12, 2012, when Mr. Edman reported to Ms. Zell, she gave him a performance evaluation that marked him as “Needs Improvement” in the area of communications and working relationships in all departments. Edman Dep. Ex. 8. She further informed him that he needed to be mindful of his “approach and tone” while addressing other people and that he could come across as “aggressive or argumentative.” Id. Mr. Edman agreed with everything in the performance review, which gave him an overall rating of “Meets Expectations.” Edman Dep. 83:1-5 (“Q. Did you agree with this evaluation? A. I made no comment, and I did not write 4 Specifically, at 1:00 a.m. in the morning, Mr. Edman was driving southbound on Interstate 5 near Everett, Washington when his car engine blew. Edman Dep. 92:10-25. He maneuvered the car to the shoulder but had no cell phone, so he could not call for help. Edman Dep. 92:25-93:2. He waited one hour hoping that the State Patrol would arrive, and then finally decided to get out of his vehicle and walk to the next exit to call for help. Edman Dep. 93:2-10. While walking towards the exit, he fell down an embankment and injured himself. Edman Dep. 88:15-21. When Mr. Edman finally reached a convenience store, he called Ms. Hurd at home to ask for assistance. Edman Dep. 93:11-16. At that early hour, Ms. Hurd picked Mr. Edman up from Everett and drove him to his home in Northgate. Edman Dep. 92:6-17. In seeing Mr. Edman’s injuries, Ms. Hurd wanted to put Band-Aids on him. Mr. Edman stopped her, however, and told her not to do so unless she had gloves because of his HIV positive status. Edman Dep. 92:6-17. 5 Interestingly, prior to working for Arden, Mr. Edman left a job working as a dining manager for another residential care facility, because he was “over [his] head” and “did not have the background or training to be able to meet . . . expectations.” Edman Dep. 59:12-15, 59:19-60:1, 61:8-10. Mr. Edman did not disclose that employer on his job application to Arden. Edman Dep. 60:18-61:7. Instead, he told Kindred he was self-employed, even though he did not have any clients at the time. Edman Dep. 61:11-18. Case 2:14-cv-01280-BJR Document 57 Filed 09/01/16 Page 4 of 26 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 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 4 Case No. (2:14-cv-01280-BJR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 on there that I reserve the right to comment. . . So I would say that I would have agreed with this.”). Indeed, Mr. Edman attributes no discriminatory animus to Ms. Zell. Edman Dep. 97:13- 25. Despite receiving the September counseling notice, less than two months later, on or about November 2, 2012, two employees, a nurse and a certified nursing assistant, submitted written complaints about Mr. Edman. The employees alleged Mr. Edman yelled at the nurse about whether a resident should have been eating in the dining room. Edman Dep. Ex. 10, 108:4-109:25. As a result of the written complaints, the Interim Executive Director at the time, Jane Whitaker, met with Mr. Edman twice to discuss the incident. Ultimately, Ms. Whitaker and Mr. Edman determined that, in the future, Mr. Edman should go to the Director of Nursing about non-urgent performance issues, rather than directly talking to nurses. See id. Mr. Edman does not allege that Ms. Whitaker subjected him to any discriminatory or retaliatory conduct while she supervised his employment. Edman Dep. 98:1-12. In November 2012, Ms. Hurd became Mr. Edman’s Executive Director. Edman Dep. 109:2-5. Ms. Hurd gave Mr. Edman a performance evaluation in June 2013 that also noted his continued loud and inappropriate “yelling.” Edman Dep. Ex. 12, 111:18-112:16. Ms. Hurd rated Mr. Edman “Below Standard” for Communication Skills and for External Management and Teamwork with the Managers. Edman Dep. Ex.12. Ms. Hurd noted: [Communication Skills:] This is an area of focus for David. David can be quite loud and express himself at inopportune times. A prime example of this is pointing out loud that residents cannot have something because of their diet. This is very demeaning to residents and this kind of discussion should be had in low tones to respect the resident’s privacy. . . . David needs to understand that we need to put the resident’s needs and satisfaction first and figure out a way to meet the resident’s desires and needs. [External Management and Teamwork with the Managers:] David needs to continue to focus on this area and help the ED building a cohesive management team. David is one of the stronger managers on the team and consistently reliable for good work. However, he needs to focus on the team work with the other managers and cohesiveness versus coming off at times as only focused on what is Case 2:14-cv-01280-BJR Document 57 Filed 09/01/16 Page 5 of 26 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 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 5 Case No. (2:14-cv-01280-BJR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 going on in his department. Many managers have expressed frustration with his commentary, how he communicates with them as well as feeling often chastised. Id. Overall, Ms. Hurd rated Mr. Edman as “Exceeds Standards” notwithstanding his ongoing issues communicating with others and putting resident needs first. Id. Mr. Edman agreed with the performance review and does not allege it was discriminatory or retaliatory in any way. Edman Dep. 114:6-8 (“Q. Is there anything in this performance evaluation that you do not agree with? A. No.”); Edman Dep. 114:9-16 (testifying “I don’t believe that [the performance review] is discriminatory” and confirming it was not retaliatory). D. In July 2013, Mr. Edman Receives a Written Warning Due to His Ongoing Inappropriate Conduct Towards Coworkers and Others. Despite numerous prior counselings, Mr. Edman’s performance issues continued. On July 11, 2013, Ms. Hurd issued Mr. Edman a written warning for two incidents which occurred earlier in the month: (1) on July 5, 2013, Mr. Edman was overheard arguing with a nurse in a resident area where families overheard the argument, and a manager was compelled to intervene; and (2) on July 10, 2013, a vendor from Fire Chief Equipment complained that they were offended when Mr. Edman yelled at him when he entered the kitchen and demanded to know what he was doing in his kitchen. Edman Dep. Ex. 13, 117:2-10. The written warning listed a 30-day timeframe for improvement and again emphasized that Mr. Edman should cease raising his voice with staff and managers in public areas. See id. The written warning expressly stated: It is essential that immediate steps are taken to improve and maintain performance to the required level. If demonstrated material improvement is not made during this time frame, or if performance deteriorates during or after this time, further action, up to and including discharge, may be taken before the end of this time period or after this time period. Edman Dep. Ex. 13 (emphasis added). Ms. Hurd met with Mr. Edman about the warning, and Mr. Edman explained that he was ill at the time of the incident but admitted that he had engaged in an argument and raised his voice. Edman Dep. 117:11-18. Mr. Edman testified that, although he disagreed with the written warning, he did not believe it was discriminatory or retaliatory. Case 2:14-cv-01280-BJR Document 57 Filed 09/01/16 Page 6 of 26 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 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 6 Case No. (2:14-cv-01280-BJR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 Edman Dep. 118:25-119:6. E. Mr. Edman Engages in Continued Inappropriate Conduct. Unfortunately, within the same month of his written warning, Mr. Edman engaged in additional inappropriate conduct. The State Department of Health and Human Services (“DHHS”) conducts unannounced annual (every 12 to 15 months) surveys of nursing facilities in Washington. See Edman Dep. Ex. 14, 87:3-18; Deposition of Sandra Hurd (“Hurd Dep.”), 52:24-25.6 From July 29 to August 6, 2013, DHHS conducted a survey of the Arden facility.7 Edman Dep. Ex. 14. During the state survey, one of the surveyors specifically complained to Ms. Hurd about Mr. Edman and informed Ms. Hurd that Mr. Edman “focused only on the timing of the meals and not the accuracy or quality,” and that Mr. Edman was “yelling” at the staff, saying, “one more minute!” or “hurry up.”8 Edman Dep. Ex. 20; Hurd Dep. 109:15-111:1. One of the surveyors also noted that Mr. Edman attempted to stand behind her and hold his fingers in the air to count down when the meal cart should be finished. Edman Dep. Ex. 20. Further, the surveyors noted multiple issues and mistakes in the tray lines. Id. After the survey concluded, Ms. Hurd drafted a final written warning and performance improvement action plan (“PIP”) for Mr. Edman based on the complaints about his behavior during the survey. Hurd Dep. 106:22-108:5; Edman Dep. Ex. 20. Ms. Hurd also spoke with District Director of Human Resources Elaine Revelle about Mr. Edman’s performance issues and 6 The Deposition of Sandra Hurd is attached to the Hammond Declaration as Exhibit C. 7 There is an immaterial conflict in testimony about why Mr. Edman worked during the survey. Mr. Edman alleges he received a call from Ms. Hurd notifying him of the state survey and asking him to report to work immediately, even though he let Ms. Hurd know that he was not feeling well and had been planning to go to a doctor’s appointment. Edman Dep. 124:2-125:14. In contrast, Ms. Hurd testified that she did not call Mr. Edman and she was surprised when he showed up at work because he was scheduled to be off and management was not required to report to the building because the state wants to survey the facility under normal work conditions. Hurd Dep. 37:21- 24. This conflicting testimony, however, does not create a material issue of fact because, during the survey, it is undisputed that Mr. Edman never told Ms. Hurd he was unable to work or in need of accommodation. Edman Dep. 145:4-25. 8 Consistent with the feedback from the surveyor, several employees told Ms. Hurd that Mr. Edman yelled at his staff routinely and also yelled “this is not a kindergarten class!” when employees were heard laughing in the tray line. Id. Case 2:14-cv-01280-BJR Document 57 Filed 09/01/16 Page 7 of 26 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 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 7 Case No. (2:14-cv-01280-BJR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 the issuance of the final written warning to Mr. Edman. Hurd Dep. 108:6-109:7; Deposition of Elaine Revelle (“Revelle Dep.”), 77:6-78:3.9 Ms. Hurd could not meet with Mr. Edman regarding the warning, however, because Mr. Edman had taken medical leave two days after the survey ended. Hurd Dep. 106:22-108:5; Edman Dep. Exs. 15, 20. F. Mr. Edman Takes Leave From Work Due to His Medical Condition. After the survey, on August 8, 2013, Mr. Edman visited a new primary care physician, Dr. Thomas Smith, and obtained a note from Dr. Smith placing him on leave from work until September 30, 2013. Edman Dep. Ex. 15, 129:5-15. Dr. Smith noted that, at that time, Mr. Edman had received no care for his HIV for a period of eight years. Deposition of Thomas Smith (“Smith Dep.”), 28:2-11.10 Kindred approved Mr. Edman’s request for a medical leave of absence, and Mr. Edman received short term disability benefits for this leave. Edman Dep. 131:2-12. Mr. Edman returned to work on October 1, 2013, with a request to work a reduced schedule for the first two weeks, limiting him to five hours per day, four days per week. Edman Dep. Ex. 18, 137:21-138:8. Mr. Edman communicated with Ms. Hurd about the reduction in his initial work schedule. Ms. Hurd agreed with his accommodation request and expressed that she was glad to have Mr. Edman back to work. Edman Dep. 138:9-25. Mr. Edman does not believe that Kindred retaliated or discriminated against him in any way in relation to his leave, or that Kindred denied him any pay pertaining to his leave. Edman Dep. 135:22-136:6. G. Mr. Edman Receives the Final Warning and Is Placed on a Performance Improvement Plan. After Mr. Edman returned to work, on October 4, 2013, Ms. Hurd met with Mr. Edman to give him the final written warning and place him on a Performance Improvement Plan (“PIP”). Edman Dep. Ex. 20, 139:14-140:11. During the meeting, Mr. Edman did not deny engaging in unacceptable behavior during the state survey, but in the “Employee Comments” section of the 9 The Deposition of Elaine Revelle is attached to the Hammond Declaration as Exhibit D. 10 The Deposition of Dr. Thomas Smith is attached to the Hammond Declaration as Exhibit E. Case 2:14-cv-01280-BJR Document 57 Filed 09/01/16 Page 8 of 26 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 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 8 Case No. (2:14-cv-01280-BJR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 final written warning, Mr. Edman noted: My severe medical condition (HIV) caused a breakdown in my immune system. Three days after survey I was hospitalized for a severe infection and a collapsed immune system. My disposition was directly related by the multiple infections and lack of sleep. I took FMLA leave two days after the survey to seek treatment. At this time my physical and mental health is improving.11 Edman Dep. Ex. 20, 143:6-17. Mr. Edman could not recall telling anyone before or during the survey that he felt he should have been at home resting, and admitted that he never asked for leave or any accommodation when the surveyors were at Arden. Edman Dep. 145:4-25. H. Mr. Edman Requests Accommodations for His Medical Condition. After receiving the final warning and PIP, Mr. Edman was diagnosed with Kaposi’s sarcoma, an HIV-related form of cancer. Smith Dep. 93:8-18. On or about October 29, 2013, approximately three weeks after receiving the final written warning and PIP, Mr. Edman submitted two separate letters to Ms. Hurd (both dated October 25, 2013). One letter requested approval to take intermittent FMLA leave. The other letter, signed by Dr. Smith, requested numerous accommodations. Edman Dep. Exs. 21-22, 153:9-21, 156:6-10. The letter regarding intermittent FMLA leave, signed only by Mr. Edman, stated that Mr. Edman “intent[ed] to apply for Intermittent FMLA leave to see[k] additional treatment related to [his] ongoing medical disability,” meaning the radiation treatments he would need in relation to a Kaposi’s sarcoma. Edman Dep. Ex. 22, 154:24-156:7; Smith Dep. 92:21-93:18. Kindred granted Mr. Edman’s request for intermittent leave from October 28, 2013 through April 27, 2014. Edman Dep. Ex. 25, 156:11-15, 162:5-21. Mr. Edman was able to use leave as needed during that time period and did not have any further need for intermittent leave after April 27, 2014. Edman Dep. 162:22-163:6 (“Q. Were you able to use that leave on those dates that you needed it? A. Yes. Q. Was there any time when you needed to use intermittent leave and the company did not approve that? A. No.”). In fact, there has never been a time during Mr. 11 Mr. Edman admitted that he exaggerated in this response. He was never hospitalized, but merely advised to rest in bed. Edman Dep. 143:18-23. Case 2:14-cv-01280-BJR Document 57 Filed 09/01/16 Page 9 of 26 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 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 9 Case No. (2:14-cv-01280-BJR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 Edman’s employment when Arden denied any request Mr. Edman made for time off from work related to his medical condition. See id. The letter requesting accommodations, signed by Mr. Edman and Dr. Smith, requested numerous accommodations, allegedly “upon the advice and counsel” of Dr. Smith. But Mr. Edman admitted that he drafted the letter, without any prior consultation with Dr. Smith. Edman Dep. 151:24-152:2; see also Smith Dep. 67:1-5 (“David drafted the letter”). Mr. Edman brought the letter to Dr. Smith on October 25, 2013. Smith Dep. 68:24-69:3. Mr. Edman did not have an appointment with Dr. Smith on that day. Dr. Smith gave Mr. Edman a few minutes, looked at the letter and signed it. Smith Dep. 68:16-21. Dr. Smith testified that, despite signing Mr. Edman’s accommodation requests, it is his opinion that Mr. Edman became totally disabled and unable to perform his job as of October 18, 2013. Smith Dep. 93:19-20. Dr. Smith, who previously consulted as a medical expert advisor for the Social Security Administration, stated that in his medical opinion Mr. Edman was disabled under the meaning of the Social Security Act (“SSA”) as of October 18, 2013, the date of Mr. Edman’s Kaposi’s sarcoma diagnosis. Id. In Dr. Smith’s opinion, Mr. Edman could have applied for and received disability benefits as of that date. Smith Dep. 13:18-14:7, 91:4-22. Notwithstanding his belief that Mr. Edman was disabled and unable to perform his job, Dr. Smith signed Mr. Edman’s accommodation letter. At that time, Dr. Smith admits that he had no knowledge of Mr. Edman’s job description or the job duties of Mr. Edman’s position. Smith Dep. 69:4-15. He further admits that he had no specific reference point as to whether any of the items listed in Mr. Edman’s accommodations letter were essential functions of Mr. Edman’s position. Smith Dep. 69:16-25. Despite this lack of insight, Dr. Smith signed the letter. The letter requested the following: 1. All effort to be made to reduce stress: i. Guaranteed thirty (30) minute uninterrupted meal breaks after the service of the lunch meal. ii. Temporary moratorium on participating in functions/programs that are not Case 2:14-cv-01280-BJR Document 57 Filed 09/01/16 Page 10 of 26 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 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 10 Case No. (2:14-cv-01280-BJR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 core functions of the Dining Services Department. In particular [ABAQUIS],12 Central Supply, and Angel Rounds. This does not affect MDS completion, as it is considered a core function of the position. iii. Temporary moratorium on changing department operations, staffing or duties until treatment of current condition is resolved and released from the care of my physician (Unless mandated by law or findings during the Survey Process) iv. Upcoming events, systems changes, and other changes which require education or added services by the Dining Services Department or provided by or to DSM [Dining Services Manager, Mr. Edman] and/or Dining Services staff be announced at least fourteen (14) Calendar days prior to deadline/scheduled event, and additional time or assistance be provided to complete any such project. v. Weekly scheduled meetings between DSM and ED [Executive Director, Ms. Hurd] to discuss department operations, upcoming events, and other necessary information to allow for smooth operation of the department, and for DSM to attain Action Plan Goals. vi. Extended deadline times to resolve resident/customer grievances to five days after notification of the issue via the facility grievance form. 2. Provide adequate support from outside the department via other management team members to be able to provide planned and seamless dining experiences for our residents during the upcoming Holiday Season. 3. Provide Intermittent FMLA leave to seek oncology treatment r/t primary diagnosis on an as-needed basis. 4. Provide additional unpaid leave as necessary as provided for under the Americans with Disabilities Act to seek treatment for the covered disability or side-effects resulting from that treatment. Edman Dep. Ex. 21. In sum, the letter sought a reduction in stress, a “moratorium” on certain job functions, and an injunction prohibiting future adjustments to Mr. Edman’s job. Id. Given the scope of these requests, Mr. Edman, not surprisingly, wrote to a friend about his accommodation requests before he conveyed it to Arden, stating: After seeing the lawyer and getting the biopsy results (Meet with the oncologist tomorrow) I find I am in a stronger position as a protected class under the ADA, and the requirements to provide me with a ‘reasonable accommodation[.]’ And since Kindred [is] a large national company (and they base the ability of ‘undue hardship claims’ by the employer on the COMPANY not the facility and location, I can pretty much get what I will ask for (Letter attached Sandy [Hurd] will get tomorrow)[.] 12 ABAQUIS is a continuous improvement tool Kindred uses to assess and identify potential problem areas before a state survey discovers them, including problems in dining services. All department heads were required to complete the self-assessments on a quarterly basis. Edman Dep. 204:16-205:8. Case 2:14-cv-01280-BJR Document 57 Filed 09/01/16 Page 11 of 26 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 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 11 Case No. (2:14-cv-01280-BJR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 Edman Dep. Ex. 24 (emphasis added). I. Kindred’s Response to Mr. Edman’s Accommodation Request. In response to Mr. Edman’s accommodation letter, on October 31, 2013 and November 11, 2013, Ms. Revelle sent Mr. Edman correspondence informing him that Arden would need to review Mr. Edman’s certification form and other forms from Mr. Edman’s healthcare provider before it could decide whether to approve his requested accommodations.13 Edman Dep. Ex. 23, Ex. 26. Ms. Revelle further informed Mr. Edman that Arden would place him on an unpaid administrative leave while it evaluated his request for accommodation, but Mr. Edman could apply any available paid time off to the leave of absence. Id. By facsimile dated November 14, 2013, Dr. Smith transmitted forms to Ms. Revelle on behalf of Mr. Edman, but the forms were missing some requested information. Edman Dep. Ex. 27; Smith Dep. 81:7-15. While lacking all information requested from Dr. Smith, Ms. Revelle sent Mr. Edman a letter on November 22, 2013 regarding his accommodations, informed him Kindred could accommodate him (although it could not approve all of his requests because Arden found them unreasonable), and stated: We cannot grant all of the accommodation requests that you have made in your letter dated October 25, 2013. As explained below, however, we are able to grant many of them. After you have had a chance to consider this letter, please contact me regarding your interest in returning to work. . . . . . . After you had a chance to consider this letter, please let me know if you are willing to return to work with these accommodations or think there may be other reasonable accommodations we could make that would allow you to return to work. Please also let me know if you have any questions. Edman Dep. Ex. 29 (emphasis added). Consistent with Ms. Revelle’s letter, on December 9, 13 The process of working with Mr. Edman in order to evaluate his accommodation requests was consistent with Kindred’s policy regarding reasonable accommodations, which states, “Upon receiving a request for accommodation, Kindred will work with you to determine if a reasonable accommodation can be made. You may be asked to provide a doctor’s certification of disability as well as the need for an accommodation.” Edman Dep. Ex. 3. Case 2:14-cv-01280-BJR Document 57 Filed 09/01/16 Page 12 of 26 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 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 12 Case No. (2:14-cv-01280-BJR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 2013, Kindred’s counsel (responding to an earlier letter from Mr. Edman’s attorney) indicated that Arden could provide Mr. Edman accommodations and invited Mr. Edman to return to work immediately. Hammond Decl. Ex. F; Edman Dep. Ex. 28. J. Despite Being Invited to Return to Work, Mr. Edman Remains on Leave, Requests a Separation Agreement, and Applies for Other Employment. Instead of immediately returning to work after receiving the November 22 and December 9 letters extending that invitation, Mr. Edman began sending numerous emails to friends and family informing them that “I REALLY don’t want to go back to Kindred.” Edman Dep. Ex. 32. He sent an exploratory email to his “kitchen cabinet” of friends seeking their input on the idea of him re-launching his former independent contractor business. Edman Dep. Ex. 31, 177:10- 178:8. He also began planning his resignation from Arden, requesting what he referred to as a “bronze parachute” to correspond with his departure from the Company. Edman Dep. Ex. 30, 31. At no time had Kindred suggested that Mr. Edman should resign or that he was not wanted back at work; instead, Mr. Edman began planning his departure unilaterally. Mr. Edman also applied for other jobs. On December 18, 2013, weeks after Arden invited him to return to work, Mr. Edman asked for prayers from his family and friends because his application for employment with Southwest Airlines had been accepted, and he hoped that “they will look favorably on [his] resume and call [him] for interviews” because he did not want to return to Arden due to the “adversarial position taken by [his] employer when [he] asked for accommodations to receive [his] radiation therapy[.]” Edman Dep. Ex. 33. Despite Arden’s efforts to facilitate Mr. Edman’s return to work in November 2013, Mr. Edman remained out of work for more than a month, receiving treatment for his cancer, seeking other employment, and conveying a severance option to Kindred through his counsel. Edman Dep. Exs. 30-31, 173:12-17. It was not until December 31, that Mr. Edman notified Arden that his oncologist “declined to release” him to work and that he could not return to work until he had an appointment with Dr. Smith in early 2014. Edman Dep. Exs. 35-37. Mr. Edman then met Case 2:14-cv-01280-BJR Document 57 Filed 09/01/16 Page 13 of 26 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 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 13 Case No. (2:14-cv-01280-BJR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 with Dr. Smith and was cleared to return to work. Id. K. Mr. Edman Returns to Work and Successfully Completes His PIP. After receiving clearance from his doctor, Mr. Edman returned to work on January 6, 2014, more than one month after Kindred initially invited him to return with accommodations. Edman Dep. 179:15-17. After returning to work, Mr. Edman consistently received all the accommodations he needed, with a few alleged exceptions. Edman Dep. 199:16-21, 209:12-22. Specifically, Mr. Edman did not believe he was provided with an uninterrupted 30 minute meal period every day, but he could not recall any specific dates on which his meal may have been interrupted and he never complained about such a missed meal to the Executive Director or anyone else in management. Edman Dep. 199:22-200:5.14 Mr. Edman also believed there may have been one or more occasions when he did not receive notice to complete ABAQUIS, but he could not recall any specific instances, and he could not recall ever notifying Arden of any issues regarding lack of notice. Edman Dep. 205:12-206:5. Further, Mr. Edman alleged he did not always have weekly meetings he requested with Ms. Hurd, although he could not recall when or how often he did not have the meeting, and he believed it occurred “most weeks.”15 Edman Dep. 206:6-10. On April 4, 2014, and again in June, 2014, Mr. Edman met with Ms. Hurd to follow up on his PIP. During the June 2014 meeting, Ms. Hurd informed Mr. Edman that he was being taken off of the PIP. Edman Dep. Ex. 41, 219:23-220:16, 222:15-223:8. Ms. Hurd explained: It was as we were -- towards the end of the performance improvement, David and I had some really good conversations and there was just you see that moment where the light goes off in someone’s head, and he started to just really get it. And so that’s when we -- he started to show improvement, we decided to take him off the performance improvement, and he just kind of flew from there. And that energetic, excited, passionate person that I knew that he was really started to come out and excel. And he was “yes” with the patients. And he would come into my office and go, “Okay, I’m trying to find a way to say ‘yes’ to this but I 14 Importantly, it is undisputed that Mr. Edman could have taken sack lunches (paid for by Kindred) outside the facility during his lunch breaks, in order to avoid any interruptions, but he never did so. Edman Dep. 203:6-204:9. 15 In response to Mr. Edman’s request for the meetings, Ms. Hurd responded that he could “walk in the door anytime you want,” although Mr. Edman claims Ms. Hurd “was not always available.” Edman Dep. 207:3-11. Case 2:14-cv-01280-BJR Document 57 Filed 09/01/16 Page 14 of 26 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 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 14 Case No. (2:14-cv-01280-BJR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 need your help with it.” And it was great. And it was wonderful energy. We did so many fun things for the patients. It was tremendous. So there was literally a moment when David got it, and then there was no stopping him. And his kitchen looked good, and he had a great survey. It went really well. Hurd Dep. 172:13-173:5. Mr. Edman continued to work without further incident until April 2015 when he sustained a work-related injury that removed him from the workplace. III. ARGUMENT AND ANALYSIS In his Complaint, Mr. Edman asserts claims under the WLAD, including failure to accommodate, disability discrimination, and retaliation. Mr. Edman also asserted a claim for the wrongful withholding of wages. Each of Mr. Edman’s claims is meritless and Kindred is entitled to summary judgment in its favor. A. Summary Judgment Standard. Summary judgment should be granted when no genuine dispute exists as to any material fact and judgment is appropriate as a matter of law. Fed. R. Civ. P. 56(a). Summary judgment is an “integral part of the Federal Rules” designated for “every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986); (quoting Fed. R. Civ. P. 1). The party moving for summary judgment has the burden to show initially the absence of a genuine issue concerning any material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 159 (1970). If the moving party makes this showing, the burden shifts to the nonmoving party to establish the existence of an issue of fact regarding an element essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 327. To discharge this burden, the nonmoving party cannot rely on its pleadings, but instead must have evidence showing that there is a genuine issue for trial. Id. at 324. The plaintiff must present “significant probative evidence tending to support [the] claim . . . .” Id. at 323; Fed. R. Civ. P. 56(c); Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). B. Kindred Fully Accommodated Mr. Edman - His Accommodation Claim Fails. A claim for failure to accommodate under the WLAD requires Mr. Edman to establish Case 2:14-cv-01280-BJR Document 57 Filed 09/01/16 Page 15 of 26 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 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 15 Case No. (2:14-cv-01280-BJR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 four elements: (1) he is disabled; (2) he is qualified to perform the essential functions of the job, with or without reasonable accommodation; (3) he gave the employer notice of his disability and substantial limitation; and (4) upon notice, the employer failed to affirmatively adopt measures that were available to it to accommodate the disability. Townsend v. Walla Walla Sch. Dist., 147 Wn. App. 620, 626-27 (2008); Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996).16 1. Mr. Edman Was Not Qualified to Perform His Job. As a threshold matter, Mr. Edman must show that a reasonable accommodation existed that would have enabled him to perform the duties of his job at that time. Braunling v. Countrywide Home Loans Inc., 220 F.3d 1154, 1157 (9th Cir. 2000) (affirming summary judgment where the plaintiff’s suggested accommodation of reassignment to another position would not have enabled her to perform the job). Kindred accommodated Mr. Edman even though Dr. Smith testified that Mr. Edman was not, in fact, qualified to perform the essential functions of his job as of October 18, 2013. Dr. Smith, who was previously a medical expert advisor for the Social Security Administration, testified that Mr. Edman was disabled under the Social Security Act (“SSA”) as of that date, and that in his opinion Mr. Edman could apply for and receive disability benefits.17 Smith Dep. 13:18-14:7, 91:4-22, 92:21-94:24. Notwithstanding Mr. Edman’s lack of qualification, Kindred provided Mr. Edman reasonable accommodation. While the disability standard under the WLAD and SSA differ somewhat, Mr. Edman cannot simply ignore the apparent contradiction between his doctor’s diagnosis of a Social 16 Washington courts look to federal case law interpreting the ADA for guidance in interpreting the WLAD. McClarty v. Totem Elec., 157 Wn.2d 214, 228 (2006) (superseded by statute on other grounds). 17 The Social Security Act defines “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(c)(1)(A). To receive disability benefits through the Social Security Administration, the individual’s impairment must be “of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. . . .” Id. at § 423(c)(2)(A). Dr. Smith understood this definition in formulating his opinion. Smith Dep. 94:4-23. Case 2:14-cv-01280-BJR Document 57 Filed 09/01/16 Page 16 of 26 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 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 16 Case No. (2:14-cv-01280-BJR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 Security disability and his request for accommodation. See, e.g., Cleveland v. Policy Mgmt. Sys. Corp., 526 U.S. 795, 806 (1999). Mr. Edman must proffer a sufficient explanation of the inconsistencies, and if he fails to do so, assertions of inability to work may negate essential elements of a disability discrimination claim, rendering summary judgment appropriate. Id. at 806; see also Atkinson v. Les Schwab Tire Centers of Wash., 180 Wn. App. 1050 (2014) (granting summary judgment to former employer where plaintiff made no attempt to resolve the disparity between plaintiff’s physician’s conclusion in his application for social security disability insurance benefits). Mr. Edman provides no explanation of the inconsistencies here. Accordingly, while Kindred accommodated Mr. Edman (believing he was qualified to do his job with or without reasonable accommodation), it had no duty to do so and Mr. Edman’s accommodation claim fails. 2. Kindred Provided Reasonable Accommodations that Permitted Mr. Edman to Do his Job. The duty to accommodate “is limited to those steps reasonably necessary to enable the employee to perform his or her job.” Doe v. The Boeing Co., 121 Wn.2d 8, 18 (1993); U.S. Airways, Inc. v. Barnett, 535 U.S. 391, 401-02 (2002) (holding that a reasonable accommodation is one that “seems reasonable on its face, i.e., ordinarily or in the run of cases”); see also Dedman v. Personnel Appeals Board, 98 Wn. App. 471, 484 (1999). This involves removing the sensory, mental, or physical impediments to the employee’s ability to perform his job. Doe, 121 Wn.2d at 21. If the employer makes an accommodation, and if that accommodation is reasonable, then the employer has satisfied its obligation under the WLAD and the inquiry is over. Griffith v. Boise Cascade, Inc., 111 Wn. App. 436, 443 (2002) (citing Sharpe v. Am. Tel. & Tel. Co., 66 F.3d 1045, 1050 (9th Cir. 1995)). Here, Kindred provided Mr. Edman reasonable accommodations that indisputably permitted him to successfully perform his job. Specifically, Kindred accommodated Mr. Edman by placing him on job-protected administrative leave while it evaluated his accommodation Case 2:14-cv-01280-BJR Document 57 Filed 09/01/16 Page 17 of 26 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 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 17 Case No. (2:14-cv-01280-BJR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 requests. See Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1247 (9th Cir. 1999) (“Unpaid medical leave may be a reasonable accommodation under the ADA.”); see also Korslund v. DynCorp Tri-Cities Servs., Inc., 156 Wn.2d 168, 180-81 (2005) (“Employers often elect or are mandated to leave jobs open, grant leaves of absence to . . . provide reasonable accommodation to help employees return to work.”). Kindred reasonably placed Mr. Edman on administrative leave because of the scope of his accommodation requests, which included the removal of stress, a moratorium on certain job functions and insistence on maintaining the status quo regardless of business demands. Edman Dep. Ex. 21. After completing the interactive process, Kindred accommodated Mr. Edman and invited Mr. Edman to return to work in November and again in December 2013. Mr. Edman maintains Kindred should have instantaneously approved all of his requests for accommodation because he should “pretty much get what [he] ask[s] for,” but the law does not support this view. He had a duty to make reasonable efforts to perform his job with the accommodations Kindred approved. See Dean v. Metro. Seattle, 104 Wn.2d 627, 637-38 (1985) (employee had duty to cooperate with employer by accepting reasonably compensatory work he could perform). Mr. Edman did not do that until January 2014, after he told his friends he no longer wanted to work for Kindred and Kindred rejected his demand for a severance package. Not surprising, when Mr. Edman did return to work in January 2014, he successfully performed his job with the accommodations Kindred provided. Washington courts have repeatedly held that an employee may not insist upon specific accommodations: [C]lear law established by Washington courts [holds] that, “[the antidiscrimination] Act does not require an employer to offer the employee the precise accommodation he or she requests.” If, rather than defending the reasonableness of the accommodation it chose, AT&T were required to prove that Sharpe’s proposed accommodation would have imposed an undue burden, Sharpe would effectively be choosing the accommodation, not AT&T. Sharpe, 66 F.3d at 1050 (citations omitted). Where there are multiple potential modes of Case 2:14-cv-01280-BJR Document 57 Filed 09/01/16 Page 18 of 26 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 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 18 Case No. (2:14-cv-01280-BJR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 accommodation, the employer, not the employee, is entitled to select the mode. Frisino v. Seattle Sch. Dist. No. 1, 160 Wn. App. 765, 779 (2011). The employer is entitled to stand on its mode of accommodation, to the exclusion of other choices, if the employer’s mode of accommodation is reasonable. Id. Here, the accommodations offered and provided by Kindred were appropriate and reasonable. Kindred provided Mr. Edman accommodations that permitted him to successfully perform all essential functions of the job. Hurd Dep. 172:13-173:5. In short, Kindred provided Mr. Edman the reasonable accommodations he needed, as required by the WLAD. As a result, Mr. Edman successfully worked for Kindred for more than a year after he returned to work in January 2014. Presumably, he would still be in the workplace today if he had not sustained his work-related injury in April 2015. For these reasons, Mr. Edman’s accommodation claim fails. C. Mr. Edman Fails to Show Any Disparate Treatment. Mr. Edman alleges that Kindred took adverse employment action against him by placing him on unpaid leave from work between October 31, 2013 and January 6, 2014; changing his job duties by requiring him to cook; and providing him with the October 2013 final written warning. Dkt. #1-2 (Compl. at ¶ 26). As set forth below, each of these assertions lack merit and Kindred is entitled to summary judgment on Mr. Edman’s disparate treatment claim. To establish a disparate treatment claim under the WLAD, Mr. Edman must prove that he: (1) was disabled; (2) was qualified to perform the job; (3) suffered an adverse employment action because of his disability; and (4) was treated less favorably than an individual without a disability. Hill v. BCTI Income Fund-I, 144 Wn.2d 173, 193 n.20 (2001); Cluff v. CMX Corp., 84 Wn. App. 634, 638 (1997). If Mr. Edman could establish a prima facie case, the burden would shift to Kindred to establish a legitimate, non-discriminatory reason for its actions toward Mr. Edman. Cluff, 84 Wn. App. at 638. If Kindred meets its burden, Mr. Edman has the ultimate burden to show that Kindred’s reasons for the alleged action against him were a pretext for discrimination. Id. Here, Mr. Edman cannot prove his prima facie case or establish pretext, Case 2:14-cv-01280-BJR Document 57 Filed 09/01/16 Page 19 of 26 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 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 19 Case No. (2:14-cv-01280-BJR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 and his disparate treatment claim should be dismissed. 1. Mr. Edman Was Not Qualified to Perform the Job. As discussed above, Dr. Smith testified that Mr. Edman was disabled under the SSA as of October 18, 2013. Smith Dep. 13:18-14:7, 91:4-22, 92:21-94:24. Mr. Edman has failed to proffer a sufficient explanation of the inconsistency between Dr. Smith’s testimony and his claim that he could have performed the essential functions of his position at that time, with an accommodation. Cleveland, 526 U.S. at 795; Atkinson, 180 Wn. App. at 1050. 2. Mr. Edman’s Leave and Cooking Requirement Are not Adverse Employment Actions. a. Administrative Leave from Work Mr. Edman asserts that he was placed on a “forced unpaid leave” from October 31, 2013 until January 6, 2014, and that the leave was an adverse employment action. Kindred made it clear in numerous letters to Mr. Edman, however, that the unpaid leave was to last only as long as necessary for the parties to agree on a set of reasonable accommodations that would allow Mr. Edman to perform the essential functions of his job. See Edman Dep. Exs. 23, 26, 29, 34-37; Hammond Decl. Ex. F. As mentioned, administrative leave is a reasonable accommodation, not an adverse employment action. Kindred legitimately placed Mr. Edman on leave while it participated in the interactive process. In lieu of being placed on administrative leave, Mr. Edman insists Kindred should have immediately granted all of his requested accommodations without engaging in the interactive process. The law, of course, does not require this. Further, Kindred could not permit Mr. Edman to return to work without verifying it was providing him all necessary accommodations that would permit him to perform the essential functions of his job. Were Kindred to have taken this course, the law would have severely penalized it for requiring an employee to work outside his limitations. The record is replete with correspondence that establishes that Kindred was engaged in Case 2:14-cv-01280-BJR Document 57 Filed 09/01/16 Page 20 of 26 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 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 20 Case No. (2:14-cv-01280-BJR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 the interactive process throughout this leave period and invited Mr. Edman to return to work as early as November 22, 2013. Mr. Edman then postponed his return to work while he received treatment for his cancer and sought alternative employment. Edman Dep. Exs. 30-32, 37, 192:2- 193:21. Indeed, Mr. Edman’s self-interest during his administrative leave is exemplified by his efforts to obtain a “bronze parachute” severance from Kindred and sending group emails to his confidants expressing his desire never to return to work at Kindred. In view of Mr. Edman’s undisputed conduct, Mr. Edman simply cannot show that Kindred’s proffered reason for placing him on leave is a pretext for discrimination. b. Change In Job Duties Mr. Edman also takes issue with the fact that, beginning in March 2014, he was required to cook during two shifts per week, when he had not been required to cook prior to that date. Compl. at ¶30; Edman Dep. 80:19-22. Mr. Edman admitted, however, that cooking was within the scope of his duties and included in his job description, which he received when he was hired by Kindred. Edman Dep. Ex. 7, 81:1-10. Further, cooking is not an uncommon responsibility for a Dietary Service Manager, and Kindred assigned Mr. Edman the work due to business- necessitated labor cuts. Hurd Dep. 150:4-151:11; Hammond Decl. Ex. F. Mr. Edman cannot show that asking him to cook, a task within the scope of his job description, is an adverse employment action. 3. Kindred Did Not Treat Mr. Edman Less Favorably Than Non- Disabled Employees. Even if Mr. Edman was qualified to perform the essential functions of his job, he must still establish that an employee outside his protected class (i.e., an employee who was not disabled) was not similarly treated. Hill, 144 Wn.2d at 193 n.20; Johnson v. DSHS, 80 Wn. App. 212, 227 (1996) (citing Hiatt v. Rockwell Int’l Corp., 26 F.3d 761, 770 (7th Cir. 1994)). No evidence exists that Kindred treated non-disabled employees more favorably than Mr. Edman in any way. Mr. Edman cannot prove this element of his prima facie case. Case 2:14-cv-01280-BJR Document 57 Filed 09/01/16 Page 21 of 26 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 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 21 Case No. (2:14-cv-01280-BJR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 4. Mr. Edman Cannot Show that Kindred’s Proffered Reasons for its Conduct Towards Him Are a Pretext for Discrimination. Kindred had a nondiscriminatory reason for its management of Mr. Edman actions, and he cannot show that Kindred’s reasons are pretextual. As set forth herein, Kindred knew of Mr. Edman’s disability throughout his employment. When he requested it, Kindred provided him reasonable accommodation. Accordingly, the evidence demonstrates Kindred held no discriminatory animus toward Mr. Edman. Mr. Edman also claims that Kindred provided him with the final warning and PIP because of his disability. Remarkably, Mr. Edman makes this assertion even though he does not dispute all of the coaching or discipline he received prior to his final warning and PIP, which related to the same type of conduct that triggered his final warning and PIP. Edman Dep. Exs. 12-13, 20, 41, 144:19-145:3. Further, he admits that all of that prior coaching and discipline, including coaching and discipline issued by Ms. Hurd, was not discriminatory or retaliatory. Edman Dep. Exs.12, 20, 98:1-12, 114:6-16, 119:1-6. Finally, Mr. Edman admits he engaged in the specific conduct he was accused of, which led to the final warning and PIP. Notwithstanding these admissions, Mr. Edman maintains Ms. Hurd issued him the final warning and PIP because of his disability. Yet, it is undisputed that Ms. Hurd knew of Mr. Edman’s HIV status well before she provided him with the performance review in July 2013, which rated him overall as “Exceeds Standards.” Edman Dep. 123:17-22. And it is further undisputed that Ms. Hurd drafted the final written warning before Mr. Edman notified her of his need for medical leave beginning in August 2013. Hurd Dep. 108:3-5. Mr. Edman, therefore, cannot show that the final warning and PIP was based on discriminatory motive. The Court should enter summary judgment in favor of Kindred on Mr. Edman’s disparate treatment claim. D. The Court Should Dismiss Mr. Edman’s Retaliation Claim. To succeed on a retaliation claim under the WLAD, Mr. Edman must establish that: (1) Case 2:14-cv-01280-BJR Document 57 Filed 09/01/16 Page 22 of 26 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 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 22 Case No. (2:14-cv-01280-BJR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 he engaged in a protected activity; (2) he was thereafter subjected to adverse employment action by Kindred; and (3) a causal link exists between the two. Donahue v. Central Wash. Univ., 140 Wn. App. 17, 26 (2007). If Mr. Edman makes a prima facie case of retaliation by establishing the above elements, the burden shifts to Kindred to articulate some legitimate, non-retaliatory reason for the adverse action. Milligan v. Thompson, 110 Wn. App. 628, 636 (2002). The burden then shifts back to Mr. Edman to show that the asserted reason is pretextual. Id. Here, once again, Mr. Edman alleges that Kindred placed him on unpaid leave, changed his job duties, and subjected him to disciplinary action in response to his request for accommodations. See Dkt. #1-2 (Compl. at ¶¶ 29-30). Mr. Edman’s retaliation claim should be dismissed for reasons similar to his discrimination claim. 1. Mr. Edman Cannot Show A Causal Connection Between an Adverse Action and Any Protected Activity. To establish a causal link for a retaliation claim under the WLAD, Mr. Edman must show that the retaliation was a substantial factor in an alleged adverse employment action by Kindred. Delahunty v. Cahoon, 66 Wn. App. 829, 841 (1992). But here, Mr. Edman cannot establish that his alleged protected activity of requesting accommodations or opposing Kindred’s response to his request for accommodations was a substantial factor in his unpaid leave, change in job duties, or his receipt of disciplinary action. To the contrary, as discussed above, Mr. Edman was granted leave in order for Kindred to have time to evaluate his accommodation requests without requiring him to continue working in the meantime in a manner that could have harmed him given his limitations; his purported change in job duties was not a “change” since Mr. Edman’s essential function as a Director of Dining Services has always included cooking as described in his job description; and his receipt of the final written warning could not have been issued in retaliation for Mr. Edman’s request for accommodations because, at a minimum, it was drafted prior to Mr. Edman’s request.18 Thus, Mr. Edman cannot prove the second and/or third elements 18 Here, because Mr. Edman had not made his request for time off and other accommodations by the time the final written warning was underway, the final written warning could not have been drafted in retaliation for his allegedly Case 2:14-cv-01280-BJR Document 57 Filed 09/01/16 Page 23 of 26 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 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 23 Case No. (2:14-cv-01280-BJR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 (adverse actions or a causal connection) of a prima facie case of retaliation. 2. No Evidence of Pretext Exists. As discussed above, there is also no evidence in this case to support a claim by Mr. Edman that Kindred acted with pretext in any of the actions it took concerning him. There is no evidence that Kindred acted with ill motive at all. Summary judgment in Kindred’s favor is warranted as to Mr. Edman’s retaliation claims. E. Summary Judgment Is Warranted On Mr. Edman’s Claim For Wrongful Withholding of Wages. Mr. Edman claims that he is entitled to double damages under the Washington Minimum Wage Act for the time period October 31, 2013 through January 6, 2014. Edman Dep. 228:5- 229:1. In support of his claim, Mr. Edman erroneously cites RCW 49.48.010, which applies to wages to be paid upon termination. See RCW 49.48.010 (“When any employee shall cease to work for an employer . . . “). RCW 49.48.010 has not been applied to non-termination cases. Champagne v. Thurston County, 163 Wn. 2d 69, 89 (2008). Mr. Edman is a current employee of Kindred, and therefore RCW 49.48.010 does not apply to his claim. Further, Mr. Edman also is not entitled to double damages under RCW 49.52.050 or.070. Double damages under RCW 49.52.070 do not apply to wages awarded for violation of anti- discrimination statutes such as the WLAD. Hemmings v. Tidyman’s Inc., 285 F.3d 1174, 1203 (9th Cir. 2002), Bedeski v. The Boeing Co., No. C14-1157RSL, 2014 WL 6452420, at *6 (W.D. Wash. Nov. 14, 2014). Because his double damages claim lies in the WLAD discrimination statutes, the Court should dismiss this claim. IV. CONCLUSION Kindred did not discriminate against Mr. Edman or hold any animus toward him. To the protected conduct. As held by the Supreme Court, an adverse action that is completed after a protected activity is immaterial if the employer was contemplating the action prior to the protected activity. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001); see also Drago v. Jenne, 453 F.3d 1301, 1308 (11th Cir. 2006) (holding that when an employer contemplates an adverse employment action before an employee engages in protected activity, temporal proximity between the protected activity and the subsequent adverse employment action does not suffice to show causation). Case 2:14-cv-01280-BJR Document 57 Filed 09/01/16 Page 24 of 26 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 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 24 Case No. (2:14-cv-01280-BJR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 contrary, Kindred, well aware of his HIV positive status, worked with him on performance issues as it would any other employee and provided him accommodations that permitted him to successfully perform his job. Any delay in Mr. Edman’s return to work after his administrative leave is attributable to his insistence upon unreasonable accommodations, his scheme to negotiate a “bronze parachute” severance, and his unilateral efforts to find alternative employment. Kindred respectfully request that the Court grant its motion for summary judgment in its entirety. September 1, 2016 s/ Ryan P. Hammond Ryan P. Hammond, WSBA #38888 Jeannie L. Bohlman, WSBA #42245 LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 Phone: 206.623.3300 Fax: 206.447.6965 E-Mail: rhammond@littler.com jbohlman@littler.com Attorneys for Defendant KINDRED NURSING CENTERS WEST LLC Case 2:14-cv-01280-BJR Document 57 Filed 09/01/16 Page 25 of 26 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 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT - 25 Case No. (2:14-cv-01280-BJR) LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 CERTIFICATE OF SERVICE I am a resident of the State of Washington, over the age of eighteen years, and not a party to the within action. My business address is One Union Square, 600 University Street, Ste. 3200, Seattle, WA 98101. I hereby certify that on September 1, 2016, I electronically filed the foregoing DEFENDANT’S MOTION FOR SUMMARY JUDGMENT with the Clerk of the Court using the CM/ECF system which will send notification of such filing to The Honorable Barbara J. Rothstein and to the following: Attorneys for Mr. Edman Carolyn Cairns, WSBA #10856 carolyn.cairns@stokeslaw.com Krista L. Nelson, WSBA #45454 krista.nelson@stokeslaw.com Stokes Lawrence 1420 5th Ave Ste 3000 Seattle, WA 98101-2393 Phone: (206) 626-6000 Fax: (206) 464-1496 and I hereby certify that I have mailed by United States Postal Service the document to the following non CM/ECF participants: N/A I declare under penalty of perjury under the laws of the State of Washington that the above is true and correct. Executed on September 1, 2016, at Seattle, Washington. /s/ Tiffany D. Holiday Tiffany D. Holiday tholiday@littler.com Firmwide:141641947.9 076984.1010 Case 2:14-cv-01280-BJR Document 57 Filed 09/01/16 Page 26 of 26 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 [PROPOSED] ORDER GRANTING DEF’S MOT. FOR SJ - 1 Case No. 2:14-cv-01280-BJR LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 The Honorable Barbara J. Rothstein UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF WASHINGTON AT SEATTLE DAVID EDMAN, Plaintiff, v. KINDRED NURSING CENTERS WEST LLC, Defendant. Case No. 2:14-cv-01280-BJR [PROPOSED] ORDER GRANTING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT ORDER This matter came before the Court on Defendant Kindred Nursing Centers West LLC’s Motion for Summary Judgment (“the Motion”). The Court having reviewed and considered all of the pleadings filed by the parties in support of and in opposition to the Motion and the remainder of the file herein, it is hereby ORDERED, ADJUDGED and DECREED that the Motion is GRANTED. Plaintiff’s claims are dismissed in their entirety, with prejudice. IT IS SO ORDERED. ENTERED this ___ day of _______, 2016. THE HONORABLE BARBARA J. ROTHSTEIN Case 2:14-cv-01280-BJR Document 57-1 Filed 09/01/16 Page 1 of 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 [PROPOSED] ORDER GRANTING DEF’S MOT. FOR SJ - 2 Case No. 2:14-cv-01280-BJR LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 206.623.3300 Presented by: s/ Ryan P. Hammond Ryan P. Hammond, WSBA #38888 Jeannie L. Bohlman, WSBA #42245 LITTLER MENDELSON, P.C. One Union Square 600 University Street, Suite 3200 Seattle, WA 98101.3122 Phone: 206.623.3300 Fax: 206.447.6965 E-Mail: rhammond@littler.com jbohlman@littler.com Attorneys for Defendant KINDRED NURSING CENTERS WEST LLC Firmwide:142501869.1 076984.1010 Case 2:14-cv-01280-BJR Document 57-1 Filed 09/01/16 Page 2 of 2