Opinion
No. 60207-1-I.
June 30, 2008.
Appeal from a judgment of the Superior Court for Whatcom County, No. 03-2-01662-1, Steven J. Mura, J., entered June 1, 2007.
Affirmed by unpublished opinion per Leach, J., concurred in by Schindler, C.J., and Grosse, J.
Donnell Johnson appeals the dismissal of claims that his former employer failed to accommodate his disability, failed to provide him with leave as required by state law, wrongfully discharged him in violation of public policy, and unlawfully discriminated against him. The employer reasonably accommodated Johnson and did not unlawfully discriminate against him. Johnson failed to pursue his available remedies concerning the leave available to him and his discharge. Therefore, we affirm.
Donnell Johnson began working in various capacities at Western Washington University (University) in 1993, eventually becoming an office assistant in the University's parking and transportation office. From 1998 until he was separated, his primary duty was accounting for the parking office's cash receipts. He was diagnosed with epilepsy in 1982 and began suffering severe epileptic seizures in 1996. He met with Chyerl Wolfe-Lee, an employee relations specialist at the University. He told Wolfe-Lee that he could tell when a seizure was coming on and would ask to go home. After suffering a seizure, he would typically be absent from work for a day or two in order to recover.
Johnson asked the University to establish a means of accommodating his absences. Wolfe-Lee consulted with one of Johnson's doctors who informed her that Johnson had a "fairly well controlled" seizure disorder that would require "an occasional sick day secondary to fatigue after a seizure occurrence." Likewise, Johnson's neurologist stated that Johnson might be fatigued for as much as 24 hours after a seizure and that all that was necessary in terms of a departmental response to one of Johnson's seizures was to ensure that he did not injure himself.
The University then arranged an accommodation for Johnson, allowing him an additional 96 hours of leave per year to be taken without pay whenever he experienced a seizure. The accommodation required Johnson to provide a doctor's note indicating the nature of his absence and clearing him to return to work. In his deposition, Johnson agreed that this accommodation worked satisfactorily until the time of his separation.
The University also granted Johnson leave under the Family Medical Leave Act (FMLA) for medical absences on two occasions. The first was from March 13, 1997, to May 1, 1997, and again from December 6, 1999, to January 31, 2000. Johnson took many hours of leave in addition to the 96 hours granted by the accommodation, the majority of which he attributes to his epilepsy. In 1996, he recorded 163.8 hours of absence. In 1997, he was absent for 96.5 hours. In 1998, his absences increased to 205.65, while in 1999 he was absent 181.8 hours. As of July 15, 2000, shortly before his separation, Johnson had reported 219 hours of absence in 2000, or an average of 36.5 hours per month.
In July 2000, James Shaw, the University's director of public safety, wrote to University vice president, George Pierce, recommending that Johnson be separated from employment with the University. Shaw based his recommendation on a state administrative rule authorizing separation when an employee is unable to adequately perform the duties of his position due to a mental, sensory, or physical incapacity.
Shaw outlined the record of Johnson's absence between 1996 and July 2000, describing it as "extraordinary." In his letter, Shaw also advised Pierce of the University's obligation to endeavor to provide reasonable accommodation for disabled employees and attempt to place a separated employee in another position.
Johnson was separated from employment effective August 2, 2000, on the basis of his inability to adequately perform the work of his position due to his incapacity. In the letter informing Johnson of his separation, Pierce stated that the University had searched unsuccessfully for an alternative position. Pierce also informed Johnson of his right to appeal his separation to the Personnel Appeals Board (PAB) in accordance with former WAC 251-12-080.
Former WAC 251-12-080 (1998), repealed by Wash. St. Reg., 05-12-067 (July 1, 2005).
Johnson did not appeal to the PAB. Instead, he filed suit against the University in July 2003, claiming the University failed to accommodate his disability, discriminated against him because of his disability, violated former WAC 251-22-116, and wrongfully discharged him in violation of public policy. Significantly, he did not assert a claim under the FMLA.
Former WAC 251-22-116 (1996), repealed by Wash. St. Reg., 05-12-067 (July 1, 2005).
On the University's motion for summary judgment, the court dismissed the former WAC 251-22-116 and discriminatory discharge claims, but did not dismiss Johnson's remaining claims. It also denied Johnson's motion for partial summary judgment. Upon reconsideration, the court also dismissed his accommodation claim. The court then dismissed the remaining claim of discharge in violation of public policy under CR 12(b)(6).
Johnson now appeals.
Standard of Review
We review summary judgment de novo, engaging in the same inquiry as the trial court. Summary judgment is proper if the court, viewing all facts and reasonable inferences in the light most favorable to the nonmoving party, finds no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.
Chen v. State, 86 Wn. App. 183, 187, 937 P.2d 612 (1997).
CR 56(c); Ellis v. City of Seattle, 142 Wn.2d 450, 458, 13 P.3d 1065 (2000).
Summary judgment in favor of the employer in discrimination cases is often inappropriate because the evidence will generally contain reasonable but competing inferences of both discrimination and nondiscrimination that must be resolved by a jury. Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law.
Carle v. McChord Credit Union, 65 Wn. App. 93, 102, 827 P.2d 1070 (1992).
Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 184-186, 23 P.3d 440 (2001).
Hill, 144 Wn.2d at 184-186.
We review CR 12(b)(6) rulings de novo. Dismissal is appropriate only when it appears beyond doubt that the claimant can prove no set of facts, consistent with the complaint, which would justify recovery. Such motions should be granted sparingly and with care, and only in the unusual case in which the plaintiff's allegations show on the face of the complaint an insuperable bar to relief. We presume all facts alleged in the plaintiff's complaint to be true.
Atchison v. Great W. Malting Co., 161 Wn.2d 372, 376, 166 P.3d 662 (2007).
Bravo v. Dolsen Cos., 125 Wn.2d 745, 750, 888 P.2d 147 (1995).
Tenore v. AT T Wireless Servs., 136 Wn.2d 322, 330, 962 P.2d 104 (1998).
Discussion
Failure to Accommodate
Johnson's first claim is that the University failed to accommodate his disability.
To eliminate discrimination in the workplace, employers are required to reasonably accommodate a disabled employee unless the accommodation would be an undue hardship on the employer. Under RCW 49.60.180, a disabled employee has a cause of action where the employer fails to take steps reasonably necessary to accommodate the employee's condition.
Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 145, 94 P.3d 930 (2004).
Riehl, 152 Wn.2d at 145.
To establish a prima facie case of failure to reasonably accommodate a disability, the employee must show that:
(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.
Riehl, 152 Wn.2d at 145.
The University does not dispute that Johnson had a disability or that he gave the University notice of his epilepsy and its accompanying limitations. Johnson admits that the University accommodated his disability and that this accommodation worked well until August 2000. But Johnson argues that the accommodation should have allowed him to take as much additional leave as he wished, up to the limits allowed under the FMLA. An employee, however, is not entitled to the specific accommodation he might request.
[The state statute] 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, [the employer] were required to prove that [the employee's] proposed accommodation would have imposed an undue burden, [the employee] would effectively be choosing the accommodation, not [the employer].
Ch. 49.60 RCW.
Griffith v. Boise Cascade, Inc., 111 Wn. App. 436, 443, 45 P.3d 589 (2002).
Where an employer makes a reasonable accommodation, the employer has satisfied its legal obligation and the inquiry is over. The University crafted an accommodation based on information provided by Johnson's physicians. One stated that he might need "an occasional sick day secondary to fatigue after a seizure occurrence." Another stated that Johnson might need up to 24 hours to recover from a seizure. After consulting with Johnson's doctors, the University granted him an additional 96 hours of leave per year to be taken without pay whenever he experienced a seizure. Johnson acknowledges that he was permitted to take leave without pay after he used up his sick leave.
Griffith, 111 Wn. App. at 443.
That Johnson might have been entitled to further leave under the FMLA does not alter the basic analysis of the accommodation provided him by the University. Since the accommodation provided met Johnson's medical need, the University satisfied its obligation and summary judgment was appropriate.
Griffith, 111 Wn. App. at 443.
Discharge in Violation of Former WAC 251-22-116
Johnson sought relief for the University's alleged violation of former WAC 251-22-116 in superior court without first pursuing available administrative remedies. This administrative regulation "reflects" the Family and Medical Leave Act of 1993. It required that state institutions of higher education develop procedures for employees to request and use leave in accordance with the state laws and the Family and Medical Leave Act of 1993. "Pursuant" to the FMLA, it granted eligible employees a total of 12 work weeks of leave during any 12 month period as a result of an employee's serious health condition.
Former WAC 251-22-116.
Wash. St. Reg., 93-14-115 (July 21, 1993).
Former WAC 251-22-116(8).
Former WAC 251-22-116(2)(a).
Under the FMLA, employees who believe their rights under the act have been violated have the choice of filing a complaint with the secretary of labor or filing a private lawsuit. Unlike the FMLA, former WAC 251-22-116 itself provided no remedy if medical leave was improperly denied. However, former WAC 251-22-116 was established under the authority of RCW 41.06, the state civil service law. RCW 41.06. gives civil service employees the right to appeal a discharge to the PAB. The employee then may appeal the decision of the PAB to the superior court.
Former WAC 251-22-116; RCW 41.06.150.
Former RCW 41.64.130, .140 (1961), repealed by Laws of 2002, ch. 354, § 404.
In general, a party must exhaust all available administrative remedies before seeking relief in superior court. The court will not intervene and administrative remedies must be exhausted when: (1) a claim is cognizable in the first instance by an agency alone; (2) the agency has clearly established mechanisms for the resolution of complaints by aggrieved parties; and (3) the administrative remedies can provide the relief sought.
See RCW 34.05.534; Simpson Tacoma Kraft Co. v. Dep't of Ecology, 119 Wn.2d 640, 646, 835 P.2d 1030 (1992).
Smith v. Bates Tech. College, 139 Wn.2d 793, 808, 991 P.2d 1135 (2000).
The University cites to Reninger v. Department of Corrections to support its contention that Johnson was obligated to exhaust the civil remedy of appealing to the PAB under RCW 41.06.170 before commencing suit. In Reninger, two prison guards resigned after being demoted and reassigned to positions they felt were unreasonably dangerous. They did not seek review of their reassignments by the PAB or complain to the Department of Labor and Industries under the Washington Industrial Safety and Health Act. Instead, they limited their administrative appeal to review of a misconduct finding and demotion, and filed suit in superior court alleging multiple theories of relief, including constructive discharge. The Court of Appeals held that they were required to utilize the PAB and superior court appeal process before pursuing a constructive discharge claim in superior court. The Supreme Court did not reach this issue because it found that they had failed to state a claim for constructive discharge.
79 Wn. App. 623, 901 P.2d 325 (1995), aff'd, 134 Wn.2d 437, 951 P.2d 782 (1998).
Reninger v. Dep't of Corrections, 79 Wn. App. 623, 901 P.2d 325 (1995), aff'd, 134 Wn.2d 437, 440-443, 951 P.2d 782 (1998).
Reninger, 79 Wn. App. at 627.
Reninger, 79 Wn. App. at 627-28.
Reninger, 79 Wn. App. at 632.
Reninger, 134 Wn.2d at 445.
Johnson responds that in Bates, the Supreme Court specifically held that public employees are not required to exhaust their civil service remedies before bringing a tort claim for wrongful discharge in violation of public policy and that the Bates holding should apply to his former WAC 251-22-116 claim.
Bates, 139 Wn.2d at 816.
In Bates, however, review was confined to the issues of the common law tort of wrongful discharge in violation of public policy and 42 U.S.C.A. § 1983. Because the right to be free from wrongful termination in violation of public policy is independent of any underlying contractual agreement or civil service law, the court concluded that Smith was not required to exhaust her contractual or administrative remedies.
Bates, 139 Wn.2d at 800.
While Johnson also alleges that he was wrongfully discharged in violation of public policy, as discussed below, the claim here is for violation, not of public policy, but of an administrative provision. The claim is cognizable by the PAB alone, which has clearly established mechanisms for the resolution of complaints by aggrieved parties and administrative remedies that can provide the relief Johnson seeks. The trial court properly dismissed this claim because Johnson failed to exhaust his available administrative remedies.
Wrongful Discharge in Violation of Public Policy
In making his claim that he was wrongly discharged in violation of public policy, Johnson asserts that the University improperly terminated him for using leave guaranteed him by former WAC 251-22-116 to recover from his epileptic seizures.
Johnson's claim of wrongful discharge in violation of public policy is a claim of an intentional tort — he must establish wrongful intent to discharge in violation of public policy. Such a claim may arise when an employer discharges an employee for reasons that contravene a clear mandate of public policy.
Havens v. C D Plastics, Inc., 124 Wn.2d 158, 177, 876 P.2d 435 (1994).
Gardner v. Loomis Armored, Inc., 128 Wn.2d 931, 936, 913 P.2d 377 (1996).
To satisfy the elements of such a claim, the plaintiff must prove:
1. the existence of a clear public policy (clarity element);
2. that discouraging the conduct in which he engaged would jeopardize the public policy (jeopardy element);
3. that the public-policy-linked conduct caused the dismissal (causation element); and
4. the defendant must then not be able to offer an overriding justification for the dismissal (absence of justification element).
Korslund v. DynCorp Tri-Cities Servs., Inc., 156 Wn.2d 168, 178, 125 P.3d 119 (2005).
In Korslund v. DynCorp Tri-Cities Services, three employees sought damages from their employer for wrongful discharge in violation of public policy. They contended that the public policy underlying their claim was contained in the Energy Reorganization Act of 1974 (ERA). In affirming dismissal of that claim, the Korslund court found that the ERA itself protected the public policy in question by providing an administrative process for adjudicating employee complaints and for reinstatement of the employee to his or her former position with the same compensation, terms, conditions of employment, back pay, compensatory damages, and attorney and expert witness fees. As a result, the court held that the plaintiffs had not satisfied the jeopardy element of the tort of wrongful discharge in violation of public policy because there was an adequate alternative means of promoting the public policy.
Korslund, 156 Wn.2d at 178.
Korslund, 156 Wn.2d at 181.
Korslund, 156 Wn.2d at 182.
Korslund, 156 Wn.2d at 181.
Whether the jeopardy element is satisfied is generally a question of fact.
Korslund, 156 Wn.2d at 182.
Whether adequate alternative means for promoting the public policy exist may present a question of law, i.e., where the inquiry is limited to examining existing laws to determine whether they provide adequate alternative means of promoting the public policy.
Korslund, 156 Wn.2d at 182.
In the present case, RCW 41.06 and former WAC 251-12-080 provide alternative means of promoting public policy through the PAB appeals process. Most importantly, the FMLA provides comprehensive remedies. An employee who believes his or her rights have been violated under the FMLA has the choice of filing a complaint with the secretary of labor or filing a private lawsuit.
For reasons not apparent in the record, Johnson did not file an FMLA claim until one court day before the trial. As in Korslund, Johnson has not satisfied the jeopardy element and cannot show that the public policy behind former WAC 251-22-116 would be jeopardized were he not able to maintain his claim of wrongful discharge in violation of public policy. Had Johnson chosen to seek a remedy under the FMLA, either through an administrative appeal or a civil action, the remedies available under 29 U.S.C.A. § 2617 would have afforded him adequate means of promoting the public policy he has identified.
The trial court denied Johnson's request to amend his complaint to include an FMLA claim. Johnson did not seek review of this decision.
Johnson argues that Bates allows him to proceed with his claim of wrongful discharge. His reading of Bates is too broad. The Bates court held that the plaintiff was not required to exhaust her administrative remedies before bringing her wrongful discharge suit. It did not address the issue of alternative means dealt with in the later Korslund decision. Because Johnson failed to satisfy the jeopardy element, the trial court properly dismissed this claim.
Bates, 139 Wn.2d at 809.
Discriminatory Discharge
The University told Johnson he was separated from his job because his excessive absences prevented him from performing it. He asserts that the great majority of those absences were related to his epilepsy and that the University discharged him as a result of his disability. He argues that because James Shaw's memo to the University vice president alluded to all of Johnson's absences, including absences related to his disability, the memo demonstrates that the University improperly terminated him due to his epilepsy.
Br. of Appellant at 40.
RCW 49.60.180(2) makes it unlawful for employers to discharge or bar any person from employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability. Because workplace discrimination is a matter of state concern that threatens not only the rights and privileges of its inhabitants but menaces the institutions and foundation of a free democratic state, the legislature has mandated that Washington's Law Against Discrimination provisions "shall be construed liberally for the accomplishment of the purposes thereof."
RCW 49.60.020; Hill, 144 Wn.2d at 179.
Washington courts have largely adopted the federal protocol announced in McDonnell Douglas Corp. v. Green for evaluating motions for judgment as a matter of law in discrimination cases brought under state and common law. In McDonnell Douglas, the United States Supreme Court established the elements of a prima facie case of employment discrimination and allocated the procedural burdens of the parties. Those burdens are (1) a prima facie showing of discrimination by the employee; (2) followed by the employer's articulation of a legitimate, nondiscriminatory reason for its actions toward the employee; and (3) the employee's rebuttal, showing that the employer's stated reasons are mere pretext for what is, in fact, a discriminatory purpose.
411 U.S. 792, 93 S. Ct 1817, 36 L. Ed. 2d 668 (1973).
Hill, 144 Wn.2d at 180.
Hegwine v. Longview Fibre Co., 132 Wn. App. 546, 559, 132 P.3d 789 (2006), aff'd, 162 Wn.2d 344, 172 P.3d 688 (2007).
Hegwine, 132 Wn. App. at 559.
To establish a prima facie case of discrimination, the employee must show that he is disabled, that he suffered an adverse employment action, that he was doing satisfactory work, and that he was treated differently from someone in a nonprotected class.
Kirby v. City of Tacoma, 124 Wn. App. 454, 468, 98 P.3d 827 (2004).
Once the plaintiff has made out a prima facie case, the employer's burden is one of production not of persuasion. To go forward, the employer need only articulate reasons sufficient to meet the prima facie case. If there is no evidence of pretext, the defendant is entitled to dismissal as a matter of law.
Grimwood v. Univ. of Puget Sound, 110 Wn.2d 355, 364, 753 P.2d 517 (1988).
Grimwood, 110 Wn.2d at 364.
The University concedes that Johnson's epilepsy was a disability and that his separation from employment was materially adverse. It argues, however, that Johnson failed to establish a prima facie case because he failed to present evidence to prove that he was doing satisfactory work and that he was treated differently than a nonprotected person with a similar number of absences.
The University states that Johnson was separated because he could not meet the attendance requirement of his job. Johnson asserts that he was able to perform his job despite his repeated absences. While we view all facts and reasonable inferences in the light most favorable to Johnson, a plaintiff's conclusory opinions do not amount to material facts showing there is a genuine issue for trial. Johnson did not present evidence that he was satisfactorily performing all the essential functions of his job and also failed to show that he was treated differently than a nonprotected person with an equivalent record of absences. Therefore, he failed to establish a prima facie case of discrimination.
Ellis, 142 Wn.2d at 458.
Grimwood, 110 Wn.2d at 365.
Even if Johnson had established a prima facie case, the University presented evidence of a legitimate, nondiscriminatory reason for his separation, and he failed to present evidence that the University's stated reason for separating him was pretextual.
Denial of Johnson's Motion
Johnson appeals the trial court's denial of his motion for partial summary judgment on his claims for violation of former WAC 251-22-116 and wrongful discharge. For the reasons set forth above, the trial court properly denied this motion. Attorney Fees and Costs The University has requested an award of attorney fees and costs under RAP 14.2 and RAP 18.1. It provided no explanation as to why it might be entitled to an award of reasonable attorney fees. Therefore, we do not consider that request. As the prevailing party, the University is entitled to recover its statutory costs as provided in RAP 14.3.
Affirmed. The University is awarded its statutory costs upon compliance with RAP 14.4.
We concur.