Nos. 23760-5-III; 23761-3-III; 24113-1-III.
December 14, 2006.
Appeals from judgments of the Superior Court for Spokane County, Nos. 01-2-01971-1, 01-2-02013-1, and 01-2-05241-6, Jerome J. Leveque, J., entered January 4 and April 15, 2005.
Counsel for Appellant(s), J. Scott Miller Miller, Devlin McLean PS, WA, Robert Allan Dunn, Dunn Black PS, WA.
Counsel for Respondent(s) Paul Edgar Smith, Perkins Coie LLP, WA, Thomas M Affolter, Perkins Coie LLP, WA.
Affirmed by unpublished opinion per Sweeney, C.J., concurred in by Brown and Kato, JJ.
An employee must first show that he or she can perform the essential functions of a job to prevail on most employment-discrimination-related causes of action. Here, the employees failed to show that they could perform the essential functions of their job. We then affirm the trial court's summary dismissal of their various claims for unlawful discharge.
We have consolidated these cases for this appeal. See RAP 3.3(b). The following facts are common to all three claims.
The Boeing Corporation implemented a "cellular" production system in 1996. It divided the workforce into units called cells. The cells perform the same sorts of tasks. But some are more difficult than others because of the weight, size, and shape of the parts manufactured by that cell. The cells are denominated A through I. Cell H involves the largest parts and the most physically demanding labor.
All manufacturing employees, including Dennis L. Langan, Arlene H. Lumper, and Robin K. Nolan, had the same generic job classification called Non-Metallic Sub-Assembly Technician B. Boeing's approach facilitated a flexible production scheme. The technicians rotated regularly within cells and also between cells, according to production demands. Accordingly, the technicians' job description encompassed all of the various manufacturing tasks. Boeing expected that every technician would perform every task.
Robin K. Nolan: Ms. Nolan started at Boeing in 1991 and became a Non-Metallic Sub-Assembly Technician B following the adoption of the new manufacturing scheme in 1996. Ms. Nolan thought the cell system violated state safety and disability accommodation laws. She expressed her concerns to management. She wrote to Boeing's chief executive officer and recommended that regular rotation be incorporated into the cell system to avoid ergonomic repetitive motion injuries. In response, a Boeing attorney and an equal employment opportunity officer visited the Spokane plant. Boeing thereafter incorporated rotation into the cellular system.
At Ms. Nolan's request, Boeing assigned her to the most strenuous cell, Cell H. The work proved too strenuous. Ms. Nolan asked to be reassigned because she was afraid of hurting herself. Ms. Nolan says that Boeing moved two coworkers who requested reassignment at the same time and for the same reasons, but Boeing told her to get a medical restriction. Ms. Nolan was also told she could not move because of her "reputation." She complained to the union that Boeing was retaliating against her and trying to force her to quit.
Ms. Nolan injured her ribs at work in June 1999. The emergency room doctors imposed temporary restrictions. Her own doctor added more restrictions: she could do no lifting or repetitive use of her right arm. Ms. Nolan's doctor added more temporary restrictions over the next few months.
Boeing assigned Ms. Nolan to general office work as a temporary accommodation. She was not happy about this. She thought she should either be assessed for immediate return to a production cell or allowed to stay home and receive worker's compensation.
Then, an MRI scan showed a congenital bone condition, fibrous dysplasia, which predisposes the sufferer to fractures. Boeing asked Ms. Nolan's doctor to evaluate the tasks in Cells A and H. The doctor said she could not work in either cell without exacerbating her condition. She would likely be hurt if she continued in manufacturing. A scheduled physical capacities evaluation was then cancelled.
On October 26, 1999, again at her own request, Ms. Nolan did some light duty cutting and trimming in Cell H. But eight hours of this was enough to aggravate her symptoms. Her doctor made her physical restrictions permanent.
Boeing informed Ms. Nolan that her six-months eligibility for light duty was running out, so she asked to return to work. Boeing conducted a return-to-work intake interview. Ms. Nolan said she could not do some trim tasks, or use certain tools, especially the hand router. She could not suggest any accommodation that would allow her to perform any of the requirements of the job. So Boeing placed Ms. Nolan on medical leave in December 1999 and terminated her in January 2000.
Magnetic resonance imaging.
Arlene H. Lumper: Boeing hired Ms. Lumper in September 1990. Six months after being hired, she was diagnosed with job-related carpal tunnel syndrome. Over the next three years she had multiple carpal tunnel surgeries on both hands. But she continued to perform without accommodation, in spite of hand pain. Her doctor imposed work restrictions, but Ms. Lumper did not tell Boeing about the restrictions at that time. Then she tore a muscle in 1994, and was off work until the spring of 1995.
Boeing assigned Ms. Lumper to Cell F. She worked there without accommodation. She was then assigned to Cell H delivering materials. She then produced the doctor's restriction order and asked to return to Cell F. The restrictions applied equally to Cell F, so Boeing denied her request for transfer.
Five months into her Cell H assignment, Ms. Lumper had non-work-related surgery. In November 1997, and again in March 1998, Ms. Lumper's doctor okayed her for all tasks in Cells C, E, and G, with a preference for C. Instead, in May 1998, Ms. Lumper was assigned to do only lay-up and bagging in Cell F. The repetitive motion caused her wrists to flare up. She asked either to rotate in Cell F or to move to Cells C, E, or G to relieve the repetitive motion. Boeing denied this request. Ms. Lumper was unable to work at all until March 22, 1999. Ms. Lumper's doctor then made her 1991 "temporary" restrictions permanent.
Again, Boeing conducted a return-to-work intake interview. On March 31, 1999, Ms. Lumper reported that she "cannot do any part" of the job of non-metallic sub-assembly technician because she could not use her hands, even to open the slider door at her home. The only accommodation she could think of was to do only lay-up and bagging. But this was the very job she had asked to be relieved from when the repetitive motions caused her wrists to flare up.
Boeing terminated Ms. Lumper under "Code 16" — medically unable to perform work assignment — in April 1999.
Dennis L. Langan: Boeing hired Mr. Langan in 1991. Five months later, he injured his shoulder in a slip and fall at work. Over the next four years, his doctor imposed intermittent temporary restrictions. Boeing would then assign Mr. Langan to light duty. After he became a union representative in 1992, his relationship with Boeing became adversarial. Mr. Langan suggested numerous ergonomic and safety improvements that were not well received.
Mr. Langan's medical condition continued to deteriorate. In 1998, Mr. Langan's doctor arranged a physical capacity evaluation. The results showed that Mr. Langan could not return to his former employment. His doctor agreed and made Mr. Langan's medical restrictions permanent. Boeing assigned him to light duty.
Mr. Langan had shoulder surgery for degenerative joint disease in August 1998. He had excellent range of motion under anesthesia, and the surgeons released him for work. He returned to work in October 1998. And Boeing placed him in a six-month alternative work program. He complained that his doctor had not approved this work. So Boeing assigned him to making labels and, later, to a training center for six months.
An ultrasound showed more shoulder problems on January 29, 1999. A physical capacities evaluation on April 9, 1999, showed he could do eight hours per day of light work with no reaching above the shoulder.
In April 1999, with 30 days alternative assignment eligibility remaining, Boeing told Mr. Langan either to address his restrictions or face Code 16 medical termination. A return-to-work intake interview took place in May 1999. Mr. Langan said there was no part of his job he could do and he could think of no accommodation that would help him do his job. Boeing placed him on medical leave and medically terminated him in December 1999.
All three employees sued for disability discrimination. Boeing moved for summary judgment. The employees also moved for summary judgment. The trial court concluded that none of the material facts were disputed and granted Boeing's motions.
Standard of Review
Here, we review a trial court's summary dismissal of these claims. We stand, then, in the shoes of the trial court and review the pleadings, depositions, and affidavits in the light most favorable to the nonmoving party. Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 144, 94 P.3d 930 (2004). Summary judgment is, of course, appropriate only if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); McClarty v. Totem Elec., 157 Wn.2d 214, 220, 137 P.3d 844 (2006). The claims here are employment discrimination cases. So we apply the burden-shifting scheme originally set forth in McDonnell Douglas Corp. v. Green. Dean v. Mun. of Metro. Seattle, 104 Wn.2d 627, 637, 708 P.2d 393 (1985).
Washington Law Against Discrimination
Washington's law against discrimination (WLAD) prohibits employers from discharging people based on a sensory, mental, or physical disability, or discriminating against disabled people in conditions of employment. RCW 49.60.010, .180; Riehl, 152 Wn.2d at 144-45. WLAD disability discrimination claims are of two types — failure to accommodate a disability and disparate treatment because of a disability. Roeber v. Dowty Aerospace Yakima, 116 Wn. App. 127, 135, 64 P.3d 691 (2003).
A prima facie case of failure to accommodate has four elements. The employee must show that (1) he or she had a sensory, mental, or physical abnormality that substantially limited his or her ability to perform the job; (2) he or she was, nonetheless, qualified to do the essential functions of the job; (3) he or she gave the employer notice of the abnormality; and (4) the employer failed to affirmatively adopt available measures to accommodate the abnormality. Id. at 138-39. The disputed elements here are whether the employees showed that they could perform the essential functions and whether Boeing provided reasonable accommodation.
We liberally construe the WLAD to achieve its purpose to eliminate and prevent discrimination. RCW 49.60.020; Griffith v. Boise Cascade, Inc., 111 Wn. App. 436, 442, 45 P.3d 589 (2002). We apply the burden-shifting scheme set out in McDonnell Douglas Corp. v. Green, when adjudicating accommodation claims. Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 180, 23 P.3d 440 (2001). First, the employee must make out a prima facie case. Then the burden shifts to the employer to show a legitimate, non-discriminatory reason for the challenged act. The burden then shifts back to the worker to refute the employer's claimed reasons. Dean, 104 Wn.2d at 637. But both accommodation and discharge claims require a prima facie showing that the worker can perform the essential functions of the job. Hill, 144 Wn.2d at 181; Roeber, 116 Wn. App. at 134-35.
Our state Supreme Court recently changed the definition of "disability" for WLAD claims and adopted the definition of disability set forth in the federal Americans with Disabilities Act of 1990, 42 U.S.C. § 12101. McClarty, 157 Wn.2d at 228. But the new definition does not affect our analysis here.
Washington Law Applies
The workers first argue that the prima facie case required by Washington law does not apply to federal contractors such as Boeing. They contend they made out a prima facie case under federal law by showing that Boeing (1) did not follow its own federally mandated policy manual and (2) did not follow a four-step interactive process used by federal courts applying federal law; that is identify (a) the employee's limitations, (b) the essential job functions, (c) any barriers to performing any essential function, and (d) reasonable accommodations. They rely on Morton v. United Parcel Serv., Inc., 272 F.3d 1249 (9th Cir. 2001), and Barnett v. U.S. Air, Inc., 228 F.3d 1105 (9th Cir. 2000). The workers also rely on Morton and Barnett for the proposition that they did not have the burden at summary judgment to show that they proposed a reasonable and available accommodation. Rather, they contend, upon notice of a disability, it was up to Boeing to find an accommodation or to show that none is available, again citing Morton and Barnett.
They argue that Boeing must either show that it offered a reasonable accommodation or assert an affirmative defense such as hardship. The employees say Boeing refused even to consider modifying the cellular rotation system to provide permanent accommodation. Boeing provided only temporary light duty and involuntary leave. They argue that they were discharged because their medical conditions persisted. And, they contend, this is not reasonable accommodation. They assert that accommodation in the form of reassignment to nonproduction cells was available.
Boeing responds that Washington law not federal law applies. We agree. Roeber, 116 Wn. App. at 135. And in Washington, the employee must start the interactive accommodation process by notifying the employer of the physical limitations and suggesting an available reasonable accommodation. Pulcino v. Fed. Express Corp., 141 Wn.2d 629, 643, 9 P.3d 787 (2000) (citing MacSuga v. County of Spokane, 97 Wn. App. 435, 442, 983 P.2d 1167 (1999) (citing Barnett v. U.S. Air, Inc., 157 F.3d 744, 749 (9th Cir. 1998))).
The workers also contend that state courts must comply with federal interpretations of the Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12101- 12209, unless their own state statute provides equal or greater protection. But they cite to no authority for this. And we find none. Federal employment law is one source of guidance in adjudicating WLAD cases, but it is not binding on Washington courts. Hill, 144 Wn.2d at 180. We may adopt or reject federal theories to accomplish the goals of our own statutes. Id. (quoting Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 361-62, 753 P.2d 517 (1988)). Our own Supreme Court is the ultimate authority on Washington discrimination statutes. McClarty, 157 Wn.2d at 228.
Moreover, the cases cited by the workers for their "interactive process" arguments do not conflict with Washington law. MacSuga, 97 Wn. App. at 444. Workers suing in federal court, like plaintiffs suing here in Washington, must show that a specific, reasonable accommodation was available to the employer at the time the employee reported the physical limitation. Pulcino, 141 Wn.2d at 643 (citing MacSuga, 97 Wn. App. at 442 (citing Barnett, 157 F.3d at 749)). A WLAD plaintiff must make an initial showing that he or she requested a specific accommodation that was both reasonable and available. Pulcino, 141 Wn.2d at 643; MacSuga, 97 Wn. App. at 442. And this must happen at the summary judgment stage. Dean, 104 Wn.2d at 637. Discussions between employer and employee are highly recommended, but are not an absolute requirement. MacSuga, 97 Wn. App. at 443 (quoting White v. York Int'l Corp., 45 F.3d 357, 363 (10th Cir. 1995)).
Boeing contends that these workers failed to show that they could do the essential job functions. What the term "essential functions" means is a question of law. Davis v. Microsoft Corp., 149 Wn.2d 521, 533, 70 P.3d 126 (2003). What the essential functions of a particular job are is a question of fact. Microsoft, 149 Wn.2d at 533.
Boeing contends the bottom line here is that these workers did not show they could perform the essential functions of their job, and for good reason: they could not perform the essential functions of their job. Boeing argues that the essence of the job here is manual labor. And lifting, reaching, grasping, pushing, pulling, twisting, and using vibrating tools are essential functions. The only available accommodation, Boeing suggests, is temporary reassignment to light duty until the workers recover from their injuries. And this, Boeing says, it provided. But, when as here, the physical capacities restrictions become permanent, the restrictions simply cannot be accommodated in a cellular production facility. The employees were, then, unable to perform the essential functions and permanent accommodation was not possible. The bottom line of Boeing's argument is that these workers failed to make out a case that they could perform the essential functions of a cellular production job, with or without accommodation.
The workers contend that Boeing failed to define the essential functions of a technician. The record suggests otherwise. Attached to Ms. Nolan's declaration as Exhibit 2 are lists of the essential functions of every job in the production cells at issue here. For example, the essential functions of the job of lay-up/bagging are: place item on table, apply two coatings of some sort, trim the excess, smooth by hand, apply two or three wrappings, and bag. The physical capacities involved and their required frequencies are also listed. Rotation between jobs within the cell occurs approximately weekly. Nolan Clerk's Papers (Court of Appeals No. 24113-1-III) at 494-549.
The workers now say they could perform enough of the essential job functions to do many of the technician jobs that were available. Again, the record suggests otherwise. Both Mr. Langan and Ms. Lumper told Boeing shortly before their termination that they could not perform any aspect of the job. Ms. Nolan had a chronic congenital bone condition that made her highly susceptible to bone fractures. Her physician said she could not do any of the work without risk of serious injury. The workers could perform none of the production tasks, by their own evidence. And neither they nor Boeing were able to suggest any way to modify the job to enable them to continue in these production cells.
There is, then, no prima facie showing on this record that these workers could perform the essential functions of their job. And the workers do not dispute that the cellular production system itself is essential.
As an alternative to showing they could do the essential functions, the employees could have established a prima facie case by showing that they were qualified to fill vacant positions and either (a) Boeing did not affirmatively help them find openings or (b) they applied and were denied in favor of a non-disabled applicant. See Dean, 104 Wn.2d at 639.
Boeing says all its supervisors were asked to report any openings, and no suitable opening was available. The employees challenge this assertion and contend that there were jobs at Boeing that they could do. But they did not produce specific evidence of any particular vacant positions, claim that they applied for them, or claim they were denied an available position because of their disability.
Again, this raises no genuine issue of material fact because, on this record, the workers have not made a showing that they can perform the essential functions of any of these jobs.
Employers must reasonably accommodate a disabled employee who is able to perform the essential functions of the job, unless to do so would impose undue hardship on the employer. Riehl, 152 Wn.2d at 145; Becker v. Cashman, 128 Wn. App. 79, 84, 114 P.3d 1210 (2005).
What constitutes reasonable accommodation is a question of fact and is determined on a case-by-case basis. Dedman v. Pers. Appeals Bd., 98 Wn. App. 471, 482, 989 P.2d 1214 (1999); Pulcino, 141 Wn.2d at 644; Riehl, 152 Wn.2d at 146. Boeing provides injured technicians with up to six months light duty. After that, if they still cannot work, they may be discharged as medically unable to perform their work assignment.
The employees contend this is not reasonable. WLAD requires employers to accommodate both temporary and permanent disabilities. Pulcino, 141 Wn.2d at 643. And employers cannot discharge their affirmative obligation to reasonably accommodate disabled employees merely by providing an inflexible period of alternative assignment and "thereafter doing nothing." Erwin v. Roundup Corp., 110 Wn. App. 308, 316, 40 P.3d 675 (2002).
Boeing responds that the question of reasonable accommodation does not arise until the employees show that they can do the essential functions of the job.
Boeing is correct. The employer must accommodate only employees who are able to perform the essential functions of the job. Microsoft, 149 Wn.2d at 534; Hill, 144 Wn.2d at 192-93. Employers are not required to eliminate or reassign essential job functions in order to accommodate disabled workers. MacSuga, 97 Wn. App. at 442. Because the employees failed to show they could perform the essential functions, Boeing was entitled to judgment as a matter of law on that claim. See, e.g., Microsoft, 149 Wn.2d at 534.
To establish a claim of discharge based on disparate treatment under WLAD, the employee must show that she was discharged because of a disability. RCW 49.60.180(2); Roeber, 116 Wn. App. at 135. We again apply the McDonnell Douglas burden-shifting scheme. Kastanis v. Educ. Employees Credit Union, 122 Wn.2d 483, 490, 859 P.2d 26, 865 P.2d 507 (1993). The employee must show that he or she "(1) is in a protected class (disabled), (2) was discharged, (3) was doing satisfactory work, and (4) was replaced by someone not in the protected class." Roeber, 116 Wn. App. at 135.
These elements should not be confused or conflated with an accommodation claim. McClarty, 157 Wn.2d at 227-28. The mere presence of a disability must be the reason they were discharged. Id. at 222. But these workers essentially argue that they were wrongfully discharged because Boeing refused to accommodate their disabilities.
The prima facie case here thus also fails. The disabled employees were certainly in a protected class. And they were discharged. But, again, they did not show they were doing satisfactory work. To the contrary, they offered evidence in support of their accommodation claims that entirely defeats the requirements of a disparate treatment prima facie case. The workers' own evidence showed they could not do the work under any circumstances. Nor did the employees allege or show that they were replaced by able-bodied people.
The trial court correctly concluded that the discharge claims failed as a matter of law. Moreover, Boeing later rehired Mr. Langan. The trial court concluded that this was at least clear circumstantial evidence that the disability was not the reason for the earlier discharge. We agree. Proof of the prima facie case creates an inference of discrimination. But Boeing's rehiring of Mr. Langan refutes any inference of discrimination and defeats the disparate treatment claim as a matter of law. See Riehl, 152 Wn.2d at 149. Mr. Langan would, then, have had to show the rehire was pretextual. But an argument or assertion can be pretextual. Actually rehiring someone is real.
Ms. Lumper contends that Boeing fired her simply for requesting accommodation. But she also says she did not need accommodation because she could perform the essential functions of her job without accommodation. She contends she was fired because of her previous history of needing accommodation. These arguments are contradictory, and we reject them. Retaliation To prove retaliation, the workers must show they engaged in a protected activity, suffered an adverse employment action, and that the protected activity was a substantial factor in their discharge. Schonauer v. DCR Entm't, Inc., 79 Wn. App. 808, 827, 905 P.2d 392 (1995). If the employer can overcome the prima facie case by showing a reasonable basis for the disparate treatment, then the burden shifts back to the plaintiff to demonstrate that the presumptively valid reasons were nonetheless a pretextual and discriminatory action. Curtis v. Clark, 29 Wn. App. 967, 969, 632 P.2d 58 (1981).
Ms. Nolan contends Boeing retaliated against her for her complaints about working conditions. But Boeing investigated her letter requesting rotation and then adopted her suggestions. And, given Ms. Nolan's physical incapacity and the medical restrictions that limited her from performing any aspect of the work, no reasonable jury could find that she was fired for complaining.
Mr. Langan also implies he was really fired for his union activism. But Boeing rehired Mr. Langan after the termination at issue here. As with the disparate treatment claim, this defeats a prima facie case of retaliation. Boeing provided the appropriate remedy — reinstatement. See Wheeler v. Catholic Archdiocese of Seattle, 65 Wn. App. 552, 572, 829 P.2d 196 (1992), rev'd on other grounds, 124 Wn.2d 634, 880 P.2d 29 (1994). The court was correct. The employees failed to show that factors other than their inability to work played any substantial part in the decision to terminate them. Harassment Ms. Lumper next argues that Boeing supervisors instituted a campaign of harassment against her because she asked for accommodation after surgery on her hands. The quality of her work was criticized in front of others. And she was told her peers would inspect her work. She complains she was singled out to keep a log of her work. She believes the sole purpose for all this was to humiliate her.
To establish a claim of hostile work environment disparate treatment, a plaintiff must prove she was subjected to unwelcome harassment because she was a member of a protected class, that the harassment affected the terms and conditions of her employment, and it was imputable to her employer. Domingo v. Boeing Employees' Credit Union, 124 Wn. App. 71, 84, 98 P.3d 1222 (2004). The harassment must be sufficiently pervasive so as to alter her employment conditions. Washington v. Boeing Co., 105 Wn. App. 1, 10, 19 P.3d 1041 (2000). "It is not sufficient that the conduct is merely offensive." Adams v. Able Bldg. Supply, Inc., 114 Wn. App. 291, 296, 57 P.3d 280 (2002). Casual, isolated, or trivial incidents do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law. Payne v. Children's Home Soc'y of Wash., Inc, 77 Wn. App. 507, 515, 892 P.2d 1102 (1995) (quoting Glasgow v. Georgia-Pac., 103 Wn.2d 401, 406, 693 P.2d 708 (1985)).
We agree with Boeing that, even accepting Ms. Lumper's allegations as true, she failed to show that the incidents were severe and pervasive or that they had anything to do with her disability. Ms. Lumper concedes that the work of other injured workers was not subject to heightened scrutiny and that those workers were not deliberately humiliated.
Here, given our disposition on the employment discrimination claims, it is impossible to conclude that triable issues of fact remain on either the degree of harassment or its connection to the workers' employment conditions. Ultimately, these workers lost their jobs because physicians documented that they could not perform the essential tasks required by those jobs, not because they were harassed out of them. We affirm the summary dismissal of these claims.
A majority of the panel has determined that this opinion will not be printed in the Washington Appellate Reports but it will be filed for public record pursuant to RCW 2.06.040.
WE CONCUR: Brown, J., Kato, J.