Opinion
No. 32622-1-II.
May 9, 2006.
Appeal from a judgment of the Superior Court for Pierce County, No. 03-2-07558-8, Brian M. Tollefson, J., entered December 13, 2004.
Counsel for Appellant(s), Christopher William Bawn, Attorney at Law, 1013 10th Ave SE, Olympia, WA 98501-1566.
Counsel for Respondent(s), Scott Michael Barbara, Johnson Andrews Skinner PS, 200 W Thomas St Ste 500, Seattle, WA 98119-4296.
Andrew Robert Hay, Attorney at Law, 110 S 9th St, Tacoma, WA 98402-5102.
Affirmed by unpublished opinion per Armstrong, J., concurred in by Houghton and Penoyar, JJ.
William E. Hahn appeals a summary judgment dismissing his claims for negligent infliction of emotional distress, negligent supervision, disability discrimination, retaliation, and age discrimination against his supervisor and the City of Tacoma. Finding no error, we affirm.
FACTS I. Employment History
William Hahn started working for Tacoma Power of the City of Tacoma in August 1980. In 1984, he received a promotion to SCADA (Supervisory Control and Data Acquisition) Administrator. In 1997, the City promoted him to Special Projects Engineer and then to Senior Special Projects Engineer. From 1997 through January 2002, Hahn was supervised by Joe Orth, the Transmission and Distribution Supervisor. Orth reported to Gary Armfield, the Tacoma Power Transmission and Distribution Manager. Armfield reported to Steve Klein, the Tacoma Power Superintendent.
Before 2001, Hahn came to believe that Orth was engaged in unethical conduct 'in violation of laws prohibiting public employees from receiving compensation, gratuities, or other rewards in connection with public contracts.' Clerk's Papers (CP) at 228-29. At first, Hahn did not report the conduct to higher authority, but he did tell Orth that he objected to the conduct and would not participate in it.
Hahn mentioned to Michael Pesin, another section engineer, that Orth was spending a 'substantial majority' of his time using the city-issued laptop computer to do his personal business over the internet. CP at 229. Mr. Pesin told Orth about this complaint.
Hahn claims that in July and August 2001, Orth began sending him harassing emails and making abusive comments. He also asserts that Orth refused to allow him access to the 'ACS system' and documents that were essential to his primary duties as a Senior Special Projects Engineer. CP at 230. In November 2001, Hahn emailed Gary Armfield, Orth's supervisor, and told him that Orth had been personally attacking him in the workplace.
Orth states that he had no issues with Hahn's work performance until July 2001, when Hahn behaved inappropriately. In July 2001, Orth saw Hahn making barnyard noises, like 'MOO!' toward Vern Kissner, one of Hahn's supervisees. CP at 195. He also claims he witnessed Hahn act aggressively toward another employee, yelling over the phone. And he reports that Hahn raised his voice and became flush while meeting with representatives of Tacoma Power and a vendor. Orth describes Hahn's behavior as vehement, unprofessional, and belligerent.
Orth says that in July 2001, Kissner complained to him about Hahn's behavior. Kissner also expressed concern that Hahn's relationship with the vendor was deteriorating and that Hahn was unable to give him thorough instructions. Orth claims that he counseled Hahn about his 'aggressive behavior and deteriorating work performance.' CP at 196.
Then Armfield reorganized the SCADA section and assigned Michael Pesin, another Senior Special Project Engineer, to supervise Hahn. But according to Orth, Hahn continued to act inappropriately under Pesin and continued to communicate to the vendor, against city policy, without keeping Pesin in the communication loop. Orth also reported other job performance problems by Hahn.
Hahn claims that over the summer and fall of 2001, his mental health deteriorated and he ultimately experienced a psychological breakdown manifested as a major depression. Accordingly, in January 2002, Hahn took a leave of absence from his position as a Senior Special Projects Engineer and sought medical treatment for depression. His mental health counselor reported that '[t]he major stressor in his life is harassment at work.' CP at 403.
In April 2002, Hahn's counselor referred him for a psychological evaluation. The examiner reported that Hahn claimed to be experiencing either depression or anxiety over difficulty he was having with his work supervisor. The examiner also stated that Hahn denied having any work problems before the current ones. The examiner concluded that Hahn was having symptoms consistent with major depressive disorder and generalized anxiety disorder.
In June 2002, Hahn's treating physician and Tacoma Power's independent medical examiner concluded that Hahn was 'mentally disabled.' CP at 231. Hahn's physician, however, opined that Hahn could return to work if he was not supervised by Orth. Hahn notified Tacoma Power of his mental disability and that he could no longer work under Orth. Accordingly, he asked to be reassigned to the SCADA Administrator position, which was similar to his Senior Special Projects Engineer position. Tacoma Power denied his request but offered him an entry-level electrical engineer position.
Hahn complains that this entry-level position carried a 'substantially reduced' level of authority and approximately $30,000 less in pay. CP at 231. He emphasizes that he had an entry-level position in 1980, 22 years before his Senior Special Projects Engineer position. After several requests to be reassigned to the SCADA Administrator position, Hahn accepted the entry-level position.
After he returned to work, Hahn reported Orth's use of public funds for personal purposes to William Garrison, Chief Criminal Investigator, Pierce County Prosecutor's Office, and Tacoma City Councilman, Michael Lonergan. As a result of these reports, according to Hahn, the State Auditor's office investigated and, in February 2003, Tacoma Power terminated Orth because of 'his diversion of public funds for improper personal purposes.' CP at 232.
After Tacoma Power terminated Orth, Hahn asked to be returned to his former position as Senior Special Projects Engineer or SCADA Administrator. Tacoma Power denied his request.
II. Procedure
Hahn sued Orth and the City for negligent infliction of emotional distress, negligent supervision, disability discrimination, retaliation, and age discrimination.
Hahn alleged that in August 2001, Orth 'initiated a campaign of isolation and harassment directed at Mr. Hahn, in retaliation for Mr. Hahn's challenge to inappropriate expenditures approved by Mr. Orth.' CP at 26. In addition, he maintained that Orth intentionally interfered with his ability to carry out his primary responsibilities by 'refusing to provide Mr. Hahn access to critical documentation.' CP at 26. Hahn claimed that 'Orth's maltreatment resulted in [him] suffering a psychological breakdown manifested as major depression.' CP at 26. And he claimed that the breakdown caused him to leave his employment with the City in January 2002. When he returned five months later, it was in 'a substantially reduced level of authority and compensation.' CP at 26.
Hahn complained that the City initially justified his demotion by claiming that Hahn, by his doctor's order, was not to be supervised by Orth and that 'the only other position available was the demoted position.' CP at 26. Hahn contends, however, that the City did not reinstate him in his previous position even after it removed Orth for his diversion of public funds.
Hahn alleged that Orth negligently inflicted emotional distress on him and that the City, which knew about Orth's conduct and Hahn's distress, negligently failed to supervise and remediate the situation.
Hahn also alleged that the City failed to reasonably accommodate his disability when it refused to place him in a substantially similar job with similar benefits. Further, he asserted that the City continued to discriminate against him when it failed to reinstate him as a Senior Special Project Engineer or as a SCADA Administrator after it removed Orth.
In addition, Hahn claimed that the City retaliated against him for reporting Orth's misuse of public funds, and that the harassment and humiliation he suffered was because of his age, in violation of RCW 49.60.180.
The court granted Orth summary judgment in December 2003, and granted the City summary judgment and dismissal in November 2004. Hahn appeals.
ANALYSIS I. Summary Judgment
We review a summary judgment de novo. See Ret. Pub. Employees Council of Wash. v. Charles, 148 Wn.2d 602, 612, 62 P.3d 470 (2003) (citing Bowles v. Dep't of Ret. Sys., 121 Wn.2d 52, 62, 847 P.2d 440 (1993)). Summary judgment is appropriate only if the pleadings, affidavits, depositions, and admissions on file demonstrate the absence of any genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. CR 56(c); Charles, 148 Wn.2d at 612 (citing Bowles, 121 Wn.2d at 62). In reviewing a summary judgment, we consider all facts submitted and all reasonable inferences from them in the light most favorable to the nonmoving party. Wagg v. Estate of Dunham, 146 Wn.2d 63, 67, 42 P.3d 968 (2002) (citing Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982)). The nonmoving party may not rely on speculation, argumentative assertions that unresolved factual issues remain, or on having its affidavits considered at face value. Charles, 148 Wn.2d at 612-13 (citing Seven Gables Corp. v. MGM/UA Entm't Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986)). Instead, a response by affidavits or as otherwise provided in Civil Rule 56, must set forth specific facts showing that there is a genuine issue for trial. CR 56(e).
The moving party has the burden to show that no genuine issue of material fact exists. Young v. Key Pharm., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). It can meet this burden by showing that there is an absence of evidence from which the nonmoving party can make out a prima facie case. Young, 112 Wn.2d at 225 (citing Celotex Corp. v. Catrell, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986)); see also Hash v. Children's Orthopedic Hosp., 110 Wn.2d 912, 915, 757 P.2d 507 (1988).
In addition, questions of fact may be determined as a matter of law "when reasonable minds could reach but one conclusion." Owen v. Burlington N. Santa Fe R.R., 153 Wn.2d 780, 788, 108 P.3d 1220 (2005) (quoting Hartley v. State, 103 Wn.2d 768, 775, 698 P.2d 77 (1985)). If reasonable minds can differ, the question of fact is one for the trier of fact, and summary judgment is not appropriate. Owen, 153 Wn.2d at 788. Generally, issues of negligence and proximate cause are not susceptible to summary judgment. Owen, 153 Wn.2d at 788 (citing Ruff v. King County, 125 Wn.2d 697, 703, 887 P.2d 886 (1995)).
II. Negligent Infliction of Emotional Distress
Hahn argues that the trial court erred in dismissing his claims for negligent infliction of emotional distress against Orth and the City. Orth counters that Hahn has failed to support a negligent infliction of emotional distress claim against him. He points out that at the time of the Orth summary judgment decision, 'the record contained no admissible evidence of causation or existence of objective symptoms of emotional distress.' Br. of Respondent Orth at 13.
The City argues that Hahn claimed that Orth, not the City, engaged in an abusive pattern of behavior. And since that claim was properly dismissed on summary judgment, the City reasons that it cannot be held vicariously liable for negligence. Further, the City points out that Hahn has offered no evidence that anyone other than Orth proximately caused him emotional distress or that the City's actions fell below the acceptable standard of care.
A plaintiff can recover for negligent infliction of emotional distress if he proves negligence, that is, duty, breach of the standard of care, proximate cause, and damage, and proves the additional requirement of objective symptomatology. Kloepfel v. Bokor, 149 Wn.2d 192, 198, 66 P.3d 630 (2003); see also Snyder v. Med. Serv. Corp., 145 Wn.2d 233, 243-45, 35 P.3d 1158 (2001). Negligent infliction of emotional distress may be a cognizable claim in the workplace when it does not result from an employer's disciplinary acts or its response to a personality dispute. Chea v. Men's Wearhouse, 85 Wn. App. 405, 412-13, 932 P.2d 1261 (1997).
A. Proof of Negligence
1. Duty. Foreseeability, in large part, determines the scope of a defendant's duty. Hunsley v. Giard, 87 Wn.2d 424, 435-36, 553 P.2d 1096 (1976) (citing Wells v. Vancouver, 77 Wn.2d 800, 802-03, 467 P.2d 292 (1970)). Specifically, "the defendant's obligation to refrain from particular conduct is owed only to those who are foreseeably endangered by the conduct and only with respect to those risks or hazards whose likelihood made the conduct unreasonably dangerous." Snyder, 145 Wn.2d at 245 (quoting Hunsley, 87 Wn.2d at 436). 'Conduct is unreasonably dangerous when its risks outweigh its utility.' Snyder, 145 Wn.2d at 245 (citations omitted).
2. Breach. Negligence is conduct that "falls below the standard established by law for the protection of others against unreasonable risk." Hunsley, 87 Wn.2d at 435 (quoting W. Prosser, Handbook of the Law of Torts sec. 43, at 250 (4th ed. 1971)). "It necessarily involves a foreseeable risk, a threatened danger of injury, and conduct unreasonable in proportion to the danger." Hunsley, 87 Wn.2d at 435 (quoting Handbook sec. 43, at 250). If a defendant could not reasonably foresee any injury as the result of his or her act, there is no negligence, and no liability. Hunsley, 87 Wn.2d at 435 (citing Handbook sec. 43, at 250).
3. Proximate Cause. Lack of proximate cause represents an alternative ground on which the trial court may grant a summary judgment motion. Harvey v. County of Snohomish, 124 Wn. App. 806, 819, 103 P.3d 836 (2004), review granted, 155 Wn.2d 1007 (2005). To establish proximate cause, a claimant must prove that the negligent conduct caused in a direct sequence, unbroken by any independent cause, the injury complained of. Hoffer v. State, 110 Wn.2d 415, 424, 755 P.2d 781 (1988) (citing Alger v. Mukilteo, 107 Wn.2d 541, 545, 730 P.2d 1333 (1987)); Harvey, 124 Wn. App. at 819 (2004).
4. Damage. Finally, to establish a case of negligent infliction of emotional distress, a claimant must prove that his emotional distress is accompanied by objective symptoms and the "emotional distress must be susceptible to medical diagnosis and proved through medical evidence." Kloepfel, 149 Wn.2d at 196-97 (quoting Hegel v. McMahon, 136 Wn.2d 122, 135, 960 P.2d 424 (1998)).
B. Negligent Infliction Of Emotional Distress by Orth
In his opposition to summary judgment, Hahn claimed that he submitted 'undisputed evidence of his severe emotional injury, which is manifested by objective symptoms, and he . . . submitted undisputed evidence that the conduct of Mr. Orth was the proximate cause of such severe emotional injury.' CP at 222.
But Orth counters:
While I was Mr. Hahn's supervisor, I was never aware that Mr. Hahn was seeing a therapist. I saw no indications that my behavior would cause severe emotional distress to Mr. Hahn. I was simply making management decisions and acting within the scope of my employment.
CP at 213.
To show that Orth's actions were unreasonably dangerous, Hahn claims that Orth sent him harassing emails; but with one exception, Hahn provided the court with none of the allegedly harassing emails. Nor did Hahn provide the substance of the emails. Moreover, the single email that Hahn offered contained Orth's response to emails between Hahn and three of his subordinates. In that email, Hahn tells the subordinates, in part, that '[w]ord has come down that I am venting my 'frustration and aggression' on the three of you. . . . Please accept my most sincere apologies. And please, call it to my attention should it re-occur.' CP at 264. Hahn forwarded that email to Orth, who replied:
Thanks for pursuing this, perhaps my concern in this particular area was unfounded and I apologize if that was the case. Perhaps I'm overly sensitive/protective about things possibly getting up the food chain that normally wouldn't be an issue but end up blowing up into big deals. This fear has been probably the most stressful issue for me.
Please be sure to continue to stay on good terms with ABB.
CP at 264.
Hahn does not explain how this email is harassing; and objectively, the email is not harassing. It contains an apology and suggests an explanation for a possible misunderstanding. Hahn cannot rest on this email to show that Orth's conduct by email was unreasonably dangerous.
Hahn also claimed that Orth intentionally interfered with his ability to carry out his primary responsibilities by refusing to provide him with access to critical documents and the ACS system. He cites to an email he sent to his immediate supervisor, Michael Pesin, asking Pesin to send him certain documents if he was unable to provide him access to the system. He states, 'Its [sic] been over a month since I have had access to it and its [sic] critical to my newly assigned duties.' CP at 252. He also writes, 'Even if Joe continues to intentionally block my access to my previous work, he will still focus blame on me if I am not ready on time.' CP at 252.
According to Hahn, Orth required him to perform tasks he could not perform without access to the ACS system. Hahn feared that if he had no access to the system, his performance would suffer and his job would be in jeopardy. He claims that this fear caused him stress and anxiety that ended in major depression. Hahn has presented evidence that Orth knowingly required him to do something that was impossible to do without the documents, that Hahn's failure in performing could have resulted in dismissal from the job he had held for over 20 years, and that Orth could have reasonably foreseen that interfering with Hahn's access to those essential documents would compromise his job performance.
But Hahn presented no medical evidence that Orth's conduct in denying him access to the ACS system proximately caused Hahn's injuries. Hahn only submitted a report from Tim Earnest, M.D., a psychiatrist. Dr. Earnest submitted no declaration or affidavit. Further, his report mentions only the harassing emails as the source of Hahn's discontent. While the report says that Hahn has major depressive disorder and generalized anxiety disorder, it does not connect those disorders to Orth's actions limiting Hahn's access to the ACS system. Thus, Hahn has presented no evidence from which the trier of fact could find that any lack of access was a proximate cause of his emotional distress.
'[C]ourts cannot guarantee a stress-free workplace.' Bishop v. State, 77 Wn. App. 228, 234, 889 P.2d 959 (1995). While Hahn has shown that his work environment was stressful to him, he has not made a prima facie showing that Orth engaged in unreasonably dangerous conduct that caused him emotional distress. Without making a prima facie showing of all the elements of negligent infliction of emotional distress, his claim cannot survive summary judgment.
C. Negligent Infliction by the City
Hahn asserts that the City should be vicariously liable for the emotional distress that Orth negligently inflicted on him. Vicarious liability imposes liability on an employer for the torts of an employee who is acting on the employer's behalf. Niece v. Elmview Group Home, 131 Wn.2d 39, 48, 929 P.2d 420 (1997). Thus, a court properly dismisses a respondeat superior claim against a defendant employer based on the allegedly tortious actions of its employees when the tort claims against the employees are properly dismissed. Orwick v. Fox, 65 Wn. App. 71, 88, 828 P.2d 12 (1992).
To hold an employer vicariously liable for the negligent infliction of emotional distress by its supervisor in the workplace, an employee must prove the following:
(1) the supervisor acted on the employer's behalf; (2) the supervisor failed to act with reasonable care; (3) the supervisor's acts exceeded acceptable employee discipline or the employer's reasonable response to a personality dispute; (4) the supervisor's negligent acts proximately caused injury to the plaintiff; and (5) the plaintiff's emotional distress is manifested by objective symptoms.
Snyder, 145 Wn.2d at 252.
Hahn has not supported his allegation that Orth's conduct was the proximate cause of his depression and anxiety. Since Hahn has established no prima facie case for negligent infliction by Orth or any other city employees, he cannot establish that the City was vicariously liable for negligence.
III. Negligent Supervision
Hahn alleged that '[a]lthough [the City] was aware of Mr. Orth's persistent abusive behavior and Mr. Hahn's deteriorating psychological health it failed to remediate the situation and is therefore liable to negligent supervision of Mr. Orth.' CP at 28. Even where an employee is acting outside the scope of employment, the relationship between employer and employee gives rise to a limited duty, owed by an employer to foreseeable victims, to prevent the tasks, premises, or instrumentalities entrusted to an employee from endangering others. Niece, 131 Wn.2d at 48. This duty gives rise to causes of action for negligent hiring, retention, and supervision. Niece, 131 Wn.2d at 48.
Again, Hahn failed to present sufficient evidence of his negligent infliction claim against Orth to survive summary judgment. Where a plaintiff under these circumstances fails to prove the employee's liability, the employer is not liable on any negligent supervision claim. See Gilliam v. Dep't of Soc. Health Servs., 89 Wn. App. 569, 584-85, 950 P.2d 20 (1998).
IV. Discrimination Based on Disability
Hahn claims that the City failed to reasonably accommodate his disability when it refused to place him in a substantially similar job with similar benefits. Further, he argues that the City continues to discriminate against him by not reinstating him to his former job as a Senior Special Project Engineer or as a SCADA Administrator, even though Orth has been removed as supervisor of that department.
Under Washington's Law Against Discrimination, an employer may not discriminate against any person in the terms or conditions of employment or discharge any employee because of any sensory, mental, or physical disability. RCW 49.60.180(2), (3). An employer's failure to reasonably accommodate the sensory, mental, or physical limitations of a disabled employee constitutes discrimination 'unless the employer can demonstrate that such accommodation would result in an undue hardship to the employer's business.' Pulcino v. Fed. Express Corp., 141 Wn.2d 629, 639, 9 P.3d 787 (2000) (citing Snyder v. Med. Serv. Corp., 98 Wn. App. 315, 988 P.2d 1023 (1999)).
To establish a prima facie case of failure to accommodate, a plaintiff must show:
(1) the employee had a sensory, mental, or physical abnormality that substantially limited his or her ability to perform the job; (2) the employee was qualified to perform the essential functions of the job in question; (3) the employee gave the employer notice of the abnormality and its accompanying substantial limitations; and (4) upon notice, the employer failed to affirmatively adopt measures that were available to the employer and medically necessary to accommodate the abnormality.
Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 192-93, 23 P.3d 440 (2001). The employee has the burden to show that a specific reasonable accommodation was available to the employer when it learned of the disability and that accommodation was medically necessary. Pulcino, 141 Wn.2d at 643 (citing MacSuga v. County of Spokane, 97 Wn. App. 435, 442, 983 P.2d 1167 (1999)). If the employee meets his initial burden, the burden then shifts to the employer to show that the proposed accommodation is not feasible. Pulcino, 141 Wn.2d at 643 (citing MacSuga, 97 Wn. App. at 442). An employer need not necessarily grant an employee's specific request for accommodation. Pulcino, 141 Wn.2d at 643. Rather, an employer need only "reasonably" accommodate the disability. Pulcino, 141 Wn.2d at 643 (quoting Snyder, 98 Wn. App. at 326).
"[R]easonable accommodation . . . envisions an exchange between employer and employee where each seeks and shares information to achieve the best match between the employee's capabilities and available positions." Davis v. Microsoft Corp., 149 Wn.2d 521, 536, 70 P.3d 126 (2003) (quoting Goodman v. Boeing Co., 127 Wn.2d 401, 408-09, 899 P.2d 1265 (1995)). 'The employer must take affirmative steps to assist the employee in the internal job search by determining the extent of the employee's disability, by inviting the employee to receive personal help from the employer's personnel office, and by sharing with the employee all job openings in the company.' Davis, 149 Wn.2d at 536-37. Hahn claims that the City failed to engage in this exchange.
Generally, whether an employer reasonably accommodated the employee or whether the employee's request placed an undue burden on the employer are questions of fact for the jury. Pulcino, 141 Wn.2d at 644 (citing Snyder, 98 Wn. App. at 327). But certain types of requests have been found unreasonable as a matter of law. Pulcino, 141 Wn.2d at 644.
For example, in Snyder, the court held that the duty of reasonable accommodation does not extend to providing an employee with a new supervisor or a position with a new supervisor. Snyder, 145 Wn.2d at 242. In that case, an employee reportedly felt emotional distress because of the oppressive and intimidating tactics used by her supervisor, Hall; so her doctor advised her to take two weeks off work. Snyder, 145 Wn.2d at 237. After taking this leave, she told Hall's supervisor, Charney, that she could no longer work under Hall, and she asked either to report directly to Charney or be transferred to another department. Snyder, 145 Wn.2d at 237-38. Charney responded that he wanted Snyder to return but she would have to report to Hall, who was still managing Snyder's department. Snyder, 145 Wn.2d at 238. Snyder then took a job with another company, claiming that she could not return to her old employer because 'her physician would not allow her to work under Ms. Hall's supervision.' Snyder, 145 Wn.2d at 238.
The court held that the employer had no duty to accommodate Snyder's disability because she did not timely inform the employer of her disability before she took a position elsewhere. Snyder, 145 Wn.2d at 240. But the court also observed that even if a duty to accommodate had arisen, Snyder did not show that her employer failed to consider her for a position for which she was in fact qualified. Snyder, 145 Wn.2d at 240. And after surveying and identifying persuasive ADA cases from several federal circuit courts of appeal, the Supreme Court held, 'We . . . conclude that there is no duty under WLAD to reasonably accommodate an employee's disability by providing her with a new supervisor.' Snyder, 145 Wn.2d at 242 (emphasis added). The court emphasized that:
Snyder claims she could continue to perform the essential functions of her position so long as she did not have to report to Ms. Hall. However if Snyder can perform the job, then she has no disability requiring accommodation simply because she has a personality conflict with her supervisor.
Snyder, 145 Wn.2d at 241 (emphasis added).
Similarly, in Wilson v. Wenatchee School District, 110 Wn. App. 265, 40 P.3d 686 (2002), a case from Division Three of this court, Wilson, an elementary teacher, claimed that working under his supervising principal caused him severe stress. A doctor diagnosed generalized anxiety disorder related solely to Wilson's work site supervision. Wilson, 110 Wn. App. at 266. Wilson requested a transfer away from his supervisor as an accommodation after announcing his intent to take an extended leave of absence. Wilson, 110 Wn. App. at 266. After his leave, Wilson advised the District that he was willing to accept any other lower grade assignment than one under his old supervisor. Wilson, 110 Wn. App. at 268. The District offered, and Wilson accepted, a full-time position as an instructor in its program aimed at helping school dropouts. Wilson, 110 Wn. App. at 268. Later, Wilson sued the District for 'handicap discrimination' in failing to accommodate his disability. Wilson, 110 Wn. App. at 266.
The court held that Wilson's accommodation request was 'grounded on his desire to work under a different supervisor.' Wilson, 110 Wn. App. at 271. But under Snyder, the District had no duty under the Act to accommodate Wilson's disability by transferring him to a position under a different supervisor. Wilson, 110 Wn. App. at 271 (citing Snyder, 145 Wn.2d at 242). Accordingly, the court held that the District was entitled to summary judgment. Wilson, 110 Wn. App. at 271.
Here, there is no dispute that Hahn could perform the essential functions of his job; his claimed sensory, mental, or physical abnormality simply prevented him from being supervised by Orth. In his declaration, Hahn maintained that when he was cleared to return to work, there were two different supervisors, Orth and Marcy Sizer, in the Energy Control Center with positions that he could have filled. Specifically, he states, 'The position on the books as the SCADA Administrator, which I had successfully held for 12 years, was available and under the supervision of the Power Operations Supervisor, Marcy Sizer in 2002 when I came back.' CP at 614. He emphasizes that he would not have had to report to Orth in that position.
But Hahn's accommodation request is clearly grounded on his desire to avoid working under Orth, and his main contention is that the City failed to give him a substantially similar job with similar pay and benefits. The City had no duty under the Act to transfer him to a job under a different supervisor. Cf. Wilson, 110 Wn. App. at 271 (citing Snyder, 145 Wn.2d at 242). Despite that the City had no duty to do so, it transferred Hahn to a different department supervised by someone other than Orth; that the job was entry-level and lower paying than Hahn's previous position is irrelevant.
V. Retaliation
Hahn alleges that the City retaliated against him for reporting Orth's illegal activities when it wrongfully demoted him and refused to reinstate him in his previous position.
RCW 49.60.210 prohibits retaliation against a whistleblower. It states:
(1) It is an unfair practice for any employer, employment agency, labor union, or other person to discharge, expel, or otherwise discriminate against any person because he or she has opposed any practices forbidden by this chapter, or because he or she has filed a charge, testified, or assisted in any proceeding under this chapter.
(2) It is an unfair practice for a government agency or government manager or supervisor to retaliate against a whistleblower as defined in chapter 42.40 RCW.
To show that the City violated RCW 49.60.210, a plaintiff must prove:
(1) [he] engaged in statutorily protected opposition activity; (2) an adverse employment action was taken; and (3) a causal link between the former and the latter.
Delahunty v. Cahoon, 66 Wn. App. 829, 839, 832 P.2d 1378 (1992) (citing Allison v. Hous. Auth., 59 Wn. App. 624, 626-27, 799 P.2d 1195 (1990)).
Hahn was engaging in statutorily protected activity when he reported Orth's misuse of public funds. The City maintains, however, that Hahn has not shown that it took any adverse employment action against him. We agree.
Hahn asked to be transferred or to be supervised by someone other than Orth. He claimed that he would be medically unable to continue working in his current position if Orth supervised him. The City offered him a different, albeit entry-level position; and after unsuccessfully attempting to negotiate or obtain a higher position, Hahn accepted the City's offer. The City did not fire or demote Hahn — Hahn requested a transfer. And it had no obligation to provide Hahn with another supervisor; it did so at Hahn's request. Hahn has not shown that this was an adverse employment action, nor did he provide any evidence that there was a causal link between his report of Orth's activities and the City's decision to offer him the entry-level position.
Hahn also claims that the City's refusal to reinstate him in his old position once Orth was fired constituted retaliation. But as the City points out, Hahn provides no authority to show that the City was obligated to reinstate him in his old position after he personally had requested transfer out and accepted a different position. Further, when the City fired Orth, it had been more than a year since Hahn had worked for the SCADA group. Hahn provides no authority that this situation required reinstatement.
VI. Age Discrimination
In his response to the City's motion for summary judgment, Hahn stated that he did 'not oppose dismissal on summary judgment on the basis of age.' CP at 655.
Because Hahn failed to provide sufficient evidence on any of his claims to survive summary judgment, we affirm.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and PENOYAR, J., concur.