Opinion
No. 62252-8-I.
May 4, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-2-38797-8, Joan E. DuBuque, J., entered August 4, 2008.
Affirmed by unpublished opinion per Appelwick, J., concurred in by Ellington and Lau, JJ.
UNPUBLISHED OPINION
Robert Erickson claims he suffered unlawful disparate treatment, because of his disability when in 2007 his employer, Fisher, sought to address his perceived poor workplace attitude by offering him a performance improvement plan or transition to other employment. Fisher had no knowledge that Erickson suffered from depression and Erickson did not disclose this information before, during, or after the 2007 meeting when the PIP was proposed. Based on these facts, we hold the disability was not a substantial factor in Fisher's employment decisions. We affirm.
Facts
In 1995, Robert Erickson was diagnosed with Dysthymic Disorder. The essential feature of Dysthymic Disorder is a chronically depressed mood that occurs for most of the day, more days than not, for at least 2 years. The condition is characterized by mild to moderate depression, anxiety, irritability, and low energy. After his diagnosis, Erickson began a regime of counseling and medication in order to deal with the condition.
Erickson joined Fisher Communications, Inc. in the summer of 2001 as a senior advertising account executive. Erickson enjoyed his job and performed well. At his 2004 annual review, for example, Erickson met or exceeded expectations. Erickson concedes that he never discussed his diagnosis of Dysthymic Disorder with anyone at Fisher.
In the spring of 2007, Robert Boyd began working for Fisher as a general sales manager. He supervised Erickson. Boyd was charged with increasing sales and profits. To these ends, Boyd instituted a series of changes, including reconfiguring the sales teams and revamping the commission structure. At some point in 2007, Boyd became concerned that Erickson's unhappy attitude about the new business direction was disruptive — impacting both the morale and the overall development of the advertising team.
On November 7, 2007 Boyd met with Sherry Pelletier, the senior human resources manager, to discuss Erickson's attitude. Boyd and Pelletier decided a meeting should be held to discuss Erickson's perceived dissatisfaction with the job. They decided to provide him with two options: Erickson could continue his employment subject to a Performance Improvement Plan (PIP) or he could resign and transition out of the position.
Several hours later, Dan Stewart, another account executive, stopped by Boyd's office. The two discussed how things were going for Stewart. Stewart told Boyd that he was miserable. At some point, Boyd asked Stewart if he liked working with Erickson. Stewart admitted that "[s]ometimes it was tough. When he was up he was up; when he was down, I was down." Boyd responded by saying that "maybe someone should up his meds." Stewart considered this merely a flippant comment. At that point, Stewart disclosed to Boyd that Erickson's moods had, on occasion, caused him concern, like when he sent text messages and e-mails suggesting that he was suicidal or homicidal. Stewart hoped this disclosure would help Boyd understand Erickson better. They did not discuss whether Erickson was actually taking medication.
Later that evening, on November 7, after the discussion with Stewart, Boyd emailed Erickson asking to meet at 9 a.m. the next day. Soon after, Stewart and Erickson discussed Boyd's e-mail about the meeting. Stewart disclosed to Erickson the content of his prior conversation with Boyd, including Boyd's comment that somebody should increase his (Erickson's) "meds."
On November 8, 2007, Boyd, Erickson, and Pelletier met. Boyd expressed concerns about what he believed to be Erickson's unsupportive attitude of the workplace changes. Boyd then told Erickson that Erickson had two choices: (1) to remain at the company under a PIP or (2) gracefully transition out of the company over several months. The PIP is not included in the record. But, Boyd states in his declaration that it did not impact Erickson's compensation, benefits, or job title. Pelletier recalled that the PIP required Erickson to provide constructive comments to management and to approach management with his concerns, rather than confronting other employees.
Erickson immediately told Boyd that as a result of these options he had been placed in a hostile work environment. Erickson did not consider the PIP, "[b]ecause it was going to put me under different requirements than the other executives, which I perceived to be also another form of discrimination."
At the meeting, Erickson told Boyd and Pelletier, "effective immediately, I'm quitting right now." Erickson penned a resignation letter stating that "[i]t is my decision, not the company's to terminate employment based upon the status quo." In the meeting, neither Erickson, Boyd, or Pelletier ever mentioned Erickson's medical condition or disability.
At his deposition, Erickson stated that he did not perceive Fisher as a hostile work environment until the meeting and proposed options.
On August 28, 2007, Erickson accepted an offer to work as a sales associate for Bravo!. On November 8, 2007, the day he quit Fisher, Erickson immediately began employment with Bravo! on a full-time basis.
On May 8, 2008, Erickson filed an amended complaint in King County Superior Court claiming Fisher discriminated against him because of his disability, in violation of the Washington Law Against Discrimination, Chapter 49.60 RCW (WLAD). On July 2, 2008, Fisher filed for summary judgment. The trial court granted the motion in August 2008. Erickson appeals.
Analysis
Erickson appeals the trial courts grant of summary judgment to Fisher. Summary judgment is appropriate 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); Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). We review a summary judgment order by engaging in the same inquiry as the trial court, viewing the facts of a case and reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 48, 914 P.2d 728 (1996); Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794, 64 P.3d 22 (2003). The nonmoving party must set forth specific facts to defeat a motion for summary judgment. Young v. Key Pharms., Inc., 112 Wn.2d 216, 225-26, 770 P.2d 182 (1989). In discrimination cases, the plaintiff must establish specific and material facts to support each element of a prima facie case. Marquis v. City of Spokane, 130 Wn.2d 97, 105, 922 P.2d 43 (1996). We will sustain the trial court's judgment on any theory established by pleadings and supported by proof. Wendle v. Farrow, 102 Wn.2d 380, 382, 686 P.2d 480 (1984).
An employer cannot terminate an employee because of any sensory, mental, or physical disability. RCW 49.60.010, .180(2). Washington courts have adopted the McDonnell-Douglas three-part burden allocation framework for disability discrimination claims. Anica v. Wal-Mart Stores, Inc., 120 Wn. App. 481, 488, 84 P.3d 1231 (2004). (citing McDonnell-Douglas, Corp. v. Percy Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)). Under the McDonnell-Douglas framework, Erickson has the initial burden to prove a prima facie case. 411 U.S. at 802. If Erickson establishes a prima facie case, the burden shifts to Fisher to present evidence of a legitimate nondiscriminatory reason for its actions. Id. at 803. The burden then shifts back to Erickson to produce evidence that the asserted reason was merely a pretext. Id. at 805; Anica, 120 Wn. App. at 488. Erickson carries the ultimate burden at trial to prove that discrimination was a substantial factor in Fisher's decision to subject him to disparate treatment. But, to survive summary judgment Erickson need only show that a reasonable judge or jury could find that his disability was a substantial motivating factor for Fisher's adverse actions. Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 185-87, 23 P.3d 440 (2001) (Hill II); Wilmot v. Kaiser Aluminum and Chem. Corp., 118 Wn.2d 46, 71-72, 821 P.2d 18 (1991).
Erickson asserts that sufficient material facts support his claim that Fisher directly discriminated against him, because of his disability. He argues that Fisher acted unlawfully when it forced him to either resign or accept the PIP. Erickson claims he was subjected to disparate treatment, because of his disability.
To establish a prima facie case of disparate treatment based on disability, Erickson must show that he (1) belongs to a protected class (disabled), (2) suffered an adverse employment action, (3) was doing satisfactory work, and (4) was treated differently than someone not in the protected class. Kirby v. City of Tacoma, 124 Wn. App. 454, 468, 98 P.3d 827 (2004).
Citing Anica, 120 Wn. App. at 488, Fisher claims that to present a prima facie case for a disparate treatment case of disability discrimination, the plaintiff must establish that he was (1) disabled, (2) subject to an adverse employment action, (3) doing satisfactory work, and (4) his discharge occurred under circumstances that raise a reasonable inference of unlawful discrimination. In Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 152, 94 P.3d 930 (2004), and other cases, the Supreme Court applied the test as articulated in Kirby, 124 Wn. App at 468.
To establish the first prong of a claim for disparate treatment, Erickson must show he was disabled within the meaning of the statute. In 1995, Erickson was diagnosed with Dysthymic Disorder, a condition characterized by long lasting depression. The record is sufficient to establish for summary judgment that he falls within the protected class.
For the second prong, Erickson must establish that he was subject to an adverse employment action. An adverse employment action requires "an actual adverse employment action, such as a demotion or adverse transfer, or a hostile work environment that amounts to an adverse employment action." Robel v. Roundup Corp., 148 Wn.2d 35, 74 n. 24, 59 P.3d 611 (2002). An adverse employment action, therefore, is more than an "'inconvenience or alteration of job responsibilities.'" Kirby, 124 Wn. App. 465 (quoting DeGuiseppe v. Vill. of Bellwood, 68 F.3d 187, 192 (7th Cir. 1995)).
Erickson argues that he was subject to an adverse employment action based on two legal theories: (1) that the offer of the PIP constitutes an adverse employment action, and (2) he was constructively discharged when told to either accept the PIP or resign. First, Erickson characterizes the November 8, 2007 meeting and offer of the PIP as disciplinary steps and therefore necessarily adverse employment actions. But, an employee's placement on a PIP does not itself constitute an adverse employment action where no demotion, reduction in pay, or significant modification of responsibility occurs. Haynes v. Level 3 Commc'ns, LLC, 456 F.3d 1215, 1224-1225 (10th Cir. 2006), cert. denied, 549 U.S. 1252, 127 S. Ct. 1372, 167 L. Ed. 2d (2007). The PIP was not before the trial court and is not included in the record here. The only testimony about the PIP indicates that it had no impact on compensation, benefits, or job title. In his brief before this court, Erickson characterizes the PIP as "monitoring of his negative attitude under a threat of termination." He does not assert that it impacted compensation, benefits, or job title. Because Erickson fails to include the PIP in the record, it is impossible to determine whether it was an adverse employment action — more than an inconvenience or alteration of job responsibilities.
Erickson alternatively claims that he was subject to an adverse employment action, because he was constructively discharged when he did not accept the PIP. Erickson submitted both an oral and written resignation. A resignation is presumed to be voluntary, unless the employee can introduce evidence to rebut that presumption. Washington v. Boeing Co., 105 Wn. App. 1, 16, 19 P.3d 1041 (2000). To establish constructive discharge the employee must show: (1) a deliberate act by the employer that made his working conditions so intolerable that a reasonable person would have felt compelled to resign, and (2) that he resigned, because of the conditions and not for some other reason. Boeing, 105 Wn. App. at 15. Whether or not the conditions are intolerable is a question of fact. Id. The inquiry is whether "'working conditions would have been so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.'" Id. (quoting Sneed v Barna, 80 Wn. App. 843, 849, 912 P.2d 1035 (1996)). Here, the presumption is that Erickson voluntarily resigned unless he can show that Fisher made his working conditions so intolerable that a reasonable person would have felt compelled to resign.
Erickson alleges that he felt compelled to resign, because the PIP targeted his depressed behavior, which resulted from his disability. But, Erickson's argument fails to establish that objectively a reasonable person would have resigned. Intolerable working conditions require proof of either (1) a continuous pattern of discriminatory treatment or (2) aggravating circumstances. Sneed, 80 Wn. App. at 850. Here, Erickson does not make a prima facie showing that a pattern existed. Instead he points to isolated incidents, including the comments of Boyd to Stewart outside of Erickson's presence and the November 8 meeting offering a PIP. Erickson acknowledges that he never felt that the workplace was hostile until the meeting on November 8 when he was presented with the PIP. Moreover, Erickson fails to make a prima facie showing that aggravating circumstances were present. On this record, even construing the facts in a light most favorable to Erickson, we cannot conclude that a reasonable person could find that Erickson's working conditions were so intolerable that he felt compelled to resign. He fails to make a prima facie showing that he was constructively discharged and therefore subject to an adverse employment action.
We hold that Erickson failed to establish any genuine issues of material fact that he was subjected to an adverse employment action, as required for a prima facie claim of disparate treatment.
For the third prong, Erickson must establish he was doing satisfactory work. The record indicates that Erickson met or exceeded his sales goals in 2007. Additionally, the record shows that he consistently received positive evaluations during his employment with Fisher. We hold that for the purposes of summary judgment, Erickson established the third element of his prima facie case for disparate treatment.
For the fourth prong, Erickson must establish that he was treated differently than someone not in the protected class. He argues that Stewart projected an objectively negative attitude, but was not subject to a PIP or asked to transition to other employment. As evidence, he relies on Stewart's informing Boyd that he was miserable and that when Stewart learned of Boyd's hire he complained to the general manager. But, the record shows that Boyd was concerned about negativity when Erickson sent negative e-mails to all of the account executives, confronted a co-worker, and engaged in non-constructive actions. Erickson did not let management handle his concerns. These acts are substantially different from those of Stewart, who directly approached management with his concerns. But, viewed in the light most favorable to Erickson, these facts are sufficient to survive summary judgment on this element of the claim.
Finally, to succeed on a claim for disability discrimination, Erickson must establish that the disability was a substantial factor motivating his disparate treatment. Erickson was diagnosed in 1995. But, the record is undisputed that Fisher did not know Erickson was disabled as of the November 8, 2007 meeting. We hold that on these facts Erickson fails to show the disability was a substantial factor in Fisher's actions.
Based on Riehl v. Foodmaker Inc., 152 Wn.2d 138, 152, 94 P.3d 930 (2004); and Gambini v. Total Renal Care, Inc., 486 F.3d 1087 (9th Cir. 2007), Erickson nonetheless claims that Fisher's actions were unlawful, because the actions targeted symptoms of his disability. Unlike Gambini or Riehl, Fisher had no notice of Erickson's disability. Erickson did not affirmatively disclose his Dysthymic Disorder to Fisher, either before the November 8 meeting or during it or prior to his resignation letter. Neither Gambini nor Riehl stand for the proposition that an employer may be liable for employment decisions when the employer has no knowledge of a disability. Instead, both hold that an employee's conduct resulting from a disability, not merely the disability, may be protected under WLAD when the employer knows or should have known of a disability. Erickson fails to show that Fisher knew or should have known about the disability. Boyd's comment that someone should "up his [Erickson's] meds," was made in a conversation where medication was actually never discussed. Given the nature of this disability, factual context, and substantial changes in the workplace Fisher had no reason to believe that Erickson's conduct or attitude were attributable to a disability rather than merely to unhappiness with the changes. We hold that Erickson's disability was not a substantial factor in Fischer's actions.
Because the trial court did not rule on whether the after acquired evidence rule applies here, we decline Erickson's request to evaluate whether damages should be limited.
We affirm.