Opinion
No. 59605-5-I.
January 22, 2008.
Appeal from a judgment of the Superior Court for King County, No. 05-2-04856-5, Helen Halpert, J., entered January 26, 2007.
Affirmed by unpublished opinion per Appelwick, C.J., concurred in by Coleman and Baker, JJ.
Heidi Moon appeals two orders granting summary judgment of her employment lawsuit in favor of the City of Bellevue. First, Moon appeals the trial court's granting of summary judgment that disposed of her claims of employment discrimination based on gender, retaliation, and failure to accommodate her disability. Moon's employment discrimination claim was properly dismissed because she did not establish a prima facie case. Her retaliation claims were also properly dismissed because she failed to produce evidence from which a rational trier of fact could conclude that the respondents' stated reasons for any adverse employment actions toward her were a pretext for unlawful, retaliatory motives. Moon's claim of reasonable accommodation was properly dismissed because Washington law does not require the specific accommodation requested. Second, Moon appeals the trial court's granting of summary judgment that disposed of other claims because she had not complied with the notice requirements of RCW 4.96.020. These claims were properly dismissed. Moon's participation in internal investigations with the city do not constitute substantial compliance with the notice requirements of RCW 4.96.020. We affirm.
Facts
Heidi Moon began her career as a City of Bellevue police officer in 1988. On December 6, 2002, Moon attended a "buy-out" at the Pumphouse, a Bellevue bar, to celebrate the promotions of co-workers. A buy out is a tradition for Bellevue police officers, where the person promoted must buy drinks for attendees. The Bellevue Police Department (BPD) did not plan or sponsor the event. While at the Pumphouse, Moon sat across from another police officer, Lieutenant Michael Shovlin. Both stayed at the Pumphouse for several hours. Moon had originally intended to leave earlier to pick up her daughter, but changed her plans and stayed longer. Because Moon was intoxicated, Lt. Shovlin offered to give her a ride home. Moon accepted. In the car on the way to Moon's home, the two discussed sexual topics. Moon invited Lt. Shovlin into her home for a drink. He accepted. Moon had a glass of wine and Lt. Shovlin drank a beer. They sat in the living room. Moon alleges that at one point, she went to the kitchen to get another glass of wine for herself and a beer for Lt. Shovlin. Moon claims Lt. Shovlin then pushed her into her bedroom, onto her bed, and got on top of her. Moon was able to push him off her and sit on the edge of the bed. According to Moon, Lt. Shovlin then asked her twice to perform a sex act. She declined. Lt. Shovlin explained he was having marital problems. He then stood up and said he would leave. Both left the room, and Lt. Shovlin hugged Moon. Moon claims Lt. Shovlin's hand then brushed past her breast. As Lt. Shovlin left the house, Moon offered him another beer and asked, "Are you sure you don't want to stay and we can just, you know, shoot the shit." Lt. Shovlin declined and left.
In August 2003, Moon complained to the City of Bellevue's human resources department that an unnamed supervisor had pushed her onto a bed and propositioned her to perform a sex act, which constituted sexual harassment. In September of 2003, Moon named Lt. Shovlin as the person who had sexually propositioned her, which she called an assault. Bellevue Chief of Police Jim Montgomery authorized an immediate internal investigation. The city hired a third party to conduct the investigation. After conducting eight interviews, the city concluded that the sexual harassment allegation was not sustained. It found the incident took place off duty, both had consumed intoxicants, both engaged in inappropriate discussions of sexual matters, and Lt. Shovlin likely made an inappropriate remark requesting sexual favors. However, the incident did not constitute sexual harassment because it was an isolated incident, which occurred off duty and did not have on-duty repercussions, other than Moon's discomfort. Bellevue Police disciplined Lt. Shovlin with a two-day suspension for poor judgment.
During the investigation, Deputy Chief Pillo advised Lt. Shovlin to avoid Moon. On one occasion in 2003, Lt. Shovlin attempted to enter an evidence room where Moon worked. Other officers stopped him from entering because of Moon's presence. There was no contact. Moon does not claim Lt. Shovlin engaged in any inappropriate activities during the intervening eight months.
From September 2003 to January 2004, Moon took a leave from the BPD. When Moon returned to work, her psychiatrist advised the department that she was exhibiting symptoms of post-traumatic stress disorder. He requested she be placed "on shifts other than the ones he [Lt. Shovlin] is working." In response, the BPD accommodated Moon by assigning her to a squad different from Lt. Shovlin in an effort to keep them physically separated. The BPD instructed Moon to work away from the main police building. The BPD authorized Moon to eat lunch at home, outside the city limits, and gave her special gym privileges. The BPD advised Moon that she may at times cross paths with Lt. Shovlin, but she could avoid speaking with him. In May 2004, Moon complained that Lt. Shovlin had entered a computer training room to talk with another officer and stayed for several minutes. Because Moon was present, it made her feel "extremely uncomfortable." There was no subsequent contact between the two, although Moon occasionally saw Shovlin in the parking lot.
In November 2005, Moon resigned from the BPD. Her letter characterized the resignation as "involuntary," resulting from the BPD's failure to accommodate, continued sexual harassment, and retaliation. In his reply, Chief of Police Montgomery outlined the steps the BPD took to accommodate her and offered to engage in an interactive process regarding working conditions. The record indicates that Moon did not respond.
In April 2004, Moon filed her Notice of Claim with the City of Bellevue alleging hostile work environment based on gender, sexual harassment, assault by a lieutenant, retaliation, and failure to accommodate her disability. In February 2005, Moon filed her complaint for damages in King County Superior Court. The trial court granted the City of Bellevue's first motion for summary judgment for failure to comply with RCW 4.96.020, Washington's claim filing statute. On a motion for reconsideration, the trial court reinstated some of the claims. In December 2006, the trial court granted defendant's motion to strike various pieces of evidence as inadmissible. In January 2007, the trial court granted the City of Bellevue's motion to dismiss the remaining claims on summary judgment. Later that same month, the trial denied Moon's motion to reconsider. Moon timely appealed.
Discussion
1. Standard of Review
When reviewing a summary judgment order, the appellate court undertakes the same inquiry as the trial court. Thompson v. Peninsula School Dist., 77 Wn. App. 500, 504, 892 P.2d 760 (1995). Summary judgment is proper when all facts and inferences are viewed in the light most favorable to the nonmoving party and there are no genuine issues of material fact and the moving party is entitled to a judgment as a matter of law. CR 56(c). The moving party bears this burden of proof. Young v. Key Pharms., 112 Wn.2d 216, 225, 770 P.2d 182 (1989). A material fact is one upon which the outcome of the litigation depends. Barrie v. Hosts of America, Inc., 94 Wn.2d 640, 642, 618 P.2d 96 (1980). An affidavit containing bare allegations of fact without any supporting evidence is insufficient to raise a genuine issue of fact for purposes of a motion for summary judgment. Seven Gables Corp. v. MGM/UA Entertainment Co., 106 Wn.2d 1, 13, 721 P.2d 1 (1986). An adverse party "may not rest upon mere allegations or denials, but must instead set forth specific facts showing the existence of a genuine issue for trial." McBride v. Walla Walla County, 95 Wn.App. 33, 36, 975 P.2d 1029 (1999); see CR 56(e).
In December 2006, the trial court partially granted defendant's motion to strike several declarations and depositions submitted by Moon. The parties dispute what portions of the depositions were included in the order. Given the ambiguity in the order and the summary judgment standard of viewing all evidence in the light most favorable to the non-moving party, we consider all 17 deposition transcripts attached to the Declaration of Mary Ruth Mann.
The trial court provided a redacted copy of the Declaration of Heidi Moon in Opposition to Summary Judgment. We consider only those parts not redacted. Moon claims the same evidence was before the trial court in the Declaration of Heidi Moon in Opposition to Defendant's Motion to Strike. The trial court explicitly did not consider this declaration because it was filed after the defendant's reply brief on the motion for summary judgment and thus would have been unfair.
2. Compliance with Notice of Claim, RCW 4.96.020
Moon filed a Notice of Claim with the City of Bellevue. Her Notice of Claim alleged a hostile work environment based on gender, sexual harassment, an assault by a lieutenant, retaliation prohibited under chapter 49.60 RCW, and failure to accommodate her disability. The claim also asserted the City of Bellevue was liable for negligent supervision of staff, negligent training, correction, discipline, negligent retention of staff, and negligent investigation. Where the form asked the amount of damages claimed, Moon replied "not yet known." Moon also listed the extent of the damages as "emotional distress, past and future wage loss, medical, counseling, aggravation of physical injury, damage to career, general and special damages, attorney fees, and costs." Id. Moon listed she was injured by the following: (1) physical injury when work assignments aggravated neck, shoulder condition, (2) psychological injury from assault and lack of accommodation of physical injury, sexual harassment, retaliation. On the form, Moon answered that she was still receiving medical treatment, but did not provide a description.
To file a tortious claim against a Washington governmental entity, RCW 4.96.020(3) requires filing of a Notice of Claim 60 days prior to filing a complaint. Moon timely filed her Notice of Claim. One of the purposes of the statute is to allow governmental entities time to investigate, evaluate, and settle claims. Medina v. Public Util. Dist. No. 1, 147 Wn.2d 303, 310, 53 P.3d 993 (2002). To effectuate this purpose, the Notice of Claim must describe "the injury or damage, state the time and place the injury or damage occurred, state the names of all persons involved, if known, and shall contain the amount of damages claimed." RCW 4.96.020(3). Although courts require strict compliance with the filing deadlines of RCW 4.96.020, the content of the Notice of Claim need only substantially comply. Sievers v. City of Mountlake Terrace, 97 Wn. App. 181, 183, 983 P.2d 1127 (1999). RCW 4.96.010(1) mandates that "[t]he laws specifying the content for such claims shall be liberally construed so that substantial compliance therewith will be deemed satisfactory."
Citing Moon's failure to comply with the content requirements of RCW 4.96.020, the trial court granted summary judgment in favor of the City of Bellevue on her claims for "violation of medical privacy; interference with doctor-patient relationship; violation of confidentiality; interference with medical treatment; aggravation of physical injury; disability based discrimination; negligent infliction of emotional distress; intentional infliction of emotional distress; loss of reputation (item of damage); and damage to family's enjoyment." None of these claims were explicitly listed in the Notice of Claim form. The trial court also found that the Notice of Claim did not specify the damage amount such that the city could anticipate these particular claims. Dismissal for failure to comply with RCW 4.96.020 was without prejudice. Moon did not file a revised Notice of Claim form.
Moon argues the trial court erred when it dismissed some of her claims for failure to comply with RCW 4.96.020, because she had substantially complied with the statute. On appeal, Moon argues she substantially complied with the content requirements of RCW 4.96.020(3) because the City of Bellevue could infer the totality of her claims based on the extensive internal investigation that occurred prior to her filing the tort complaint. Moon claims prior interactions with the BPD provided the City of Bellevue with ample time to investigate, evaluate, and settle the claims, thus complying with the intent of the statute. Washington case law does not support Moon's argument.
In Medina v. Public Util. Dist. No. 1, the Supreme Court held a plaintiff had not complied with RCW 4.96.020 when he had previously filed suit for property damage stemming from an auto accident and three years later filed a second suit for personal injuries. 147 Wn.2d 303, 53 P.3d 993 (2002). The court held, although both arose from the same incident, "Medina's 1995 claim did not give the County the benefit of the waiting period to investigate the 1998 claim because no personal injury claims were made." Id. at 310-11. Even where the underlying facts of the accident remained the same, Medina's claim of property damage and second claims for personal injury were found to be distinct and each subject to the provisions of RCW 4.96.020. Id. "The legislature did not intend that RCW 4.96.010 be applied to mean that the content of a claim should be read so broadly as to negate the purpose of RCW 4.6.020(4), and we decline to do so." Id.
Moon argues the BPD's investigation of her sexual harassment claim and subsequent complaints about accommodation, retaliation, as well as letters from the attorney, gave the city notice of the totality of her claims. While the record shows the city conducted an investigation of her sexual harassment claim, Moon provides no specifics regarding how this investigation put the city on notice for claims of loss of reputation, damage to family's enjoyment, or intentional infliction of emotional distress. Like Medina, even if the underlying facts of these claims remained the same, a claim for sexual harassment and these other claims are distinct. The statute requires the Notice of Claim describe both injury and factual claims with specificity such that the employer is not expected to guess the potential claims. Liberal construction of the statute cannot overcome Moon's failure to name or describe these claims on the form. Moreover, the internal investigation was not addressed to any of these issues. Moon failed to comply with the statutory requirements of RCW 4.96.020.
We affirm summary judgment based on failure to provide statutory notice.
3. Gender Discrimination
Under the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW, Washington courts recognize two types of sex discrimination claims: the quid pro quo sexual harassment claim and the hostile work environment. Antonius v. King County, 153 Wn.2d 256, 261, 103 P.3d 729 (2004). Here, Moon claims a hostile work environment case, a situation wherein the employee seeks to hold the employer responsible for a hostile work environment caused by a supervisor or co-worker's sexual harassment of the employee. Glasgow v. Georgia-Pac. Corp., 103 Wn.2d 401, 405, 693 P.2d 708 (1985). In order to meet the requirements for a prima facie case of a hostile work environment claim, Moon must present evidence that the harassment (1) was unwelcome, (2) was because of sex, (3) affected the terms of employment, and (4) is imputed to the employer. Glasgow, 103 Wn.2d at 406-07. "Casual, isolated or trivial manifestations of a discriminatory environment do not affect the terms or conditions of employment to a sufficiently significant degree to violate the law." Cain v. Korum Ford, 80 Wn. App. 877, 886, 912 P.2d 1052 (1996) (citing id. at 406).
Moon alleges she suffered sexual harassment on the night of December 6, when Lt. Shovlin engaged in discussions about sexual issues, pushed her, and asked her to perform sex acts. She argues the incident began at the Pumphouse during an event affiliated with the BPD, thus making it part of a hostile work environment. According to Moon, she also encountered a hostile work environment when a fellow female officer explained that in her own personal opinion, there was a "code" that "you should not be a 'snitch' about other officers." Further, Moon witnessed a female officer complain about sexual harassment. Years later, the female officer was fired for a separate incident. Moon says she was told an offensive joke on at least one occasion by a male officer and sexual jokes were told in the presence of women. Moon claims officers sometimes referred to some women as "lesbians" and "dingbats."
The record contains no evidence the code was specific to silence regarding claims of sexual harassment.
In addition to her own experience, Moon offered the depositions of several employees as evidence of a pattern of sexual harassment. For example, Heather Black offered testimony during the internal investigation that Lt. Shovlin had made lewd remarks to her at a bar during a social event unrelated to work. The depositions and declarations of Ed Mott, Ginger Lowry, and Julie Erdmann all speak to possible sexual discrimination suffered by Sheila Evans, a former department employee, and other women more generally.
Moon provides the deposition of Judy Fleissner, a BPD peer counselor, who states that generally she has learned of officers drinking too much, touching female officers, intimidation, and physical violence. As a peer counselor, Fleissner explains there are privacy restrictions on the content of her testimony. She provides no specifics regarding sexual harassment, including frequency and intensity.
The record is unclear about whether Evans suffered from sexual discrimination or was merely "unfairly treated." There is evidence David Gans engaged in favoritism unrelated to sex. Julie Erdman characterizes Gans as "being dishonest and a bully." The record contains too few details regarding any other incidents in reference to Gans or another BPD officer.
Moon failed to establish a hostile work environment that (a) affected the terms and conditions of her employment and (b) may be attributed to the employer.
A Terms and Conditions of Employment
The incident on December 6, 2002 itself was not work environment contact. Lt. Shovlin's proposition for sex took place outside of the workplace while both were off duty. Moon does not argue that from December 6, 2002 to August 2003, the period between the incident and complaint, she experienced sexual harassment at work that affected the terms and conditions of her employment. Moon does not allege Lt. Shovlin subsequently approached her about the incident or harassed her at work. There is no evidence the incident affected Moon's workplace environment prior to filing her complaint.
Moon argues circularly, that the assault did affect the terms and conditions because of the alleged retaliation for filing a sexual harassment claim. These however are two distinct inquiries. To establish a claim for sex discrimination based on a hostile work environment, Moon must show the environment itself was hostile based on sex. She has not done so. Any claim of retaliation came after filing the complaint for sexual harassment, not before.
Subsequently, Moon can only refer to isolated incidents, including being told not to snitch and to hearing sexually suggestive jokes. Moon alleges that on her first day of work in 1998, she was told by a senior female officer that you should not "complain about other officers." The record does not support Moon's contention that this constituted sexual harassment. It was made by a female officer, not Lt. Shovlin, and was not made in reference specifically to sexual harassment. The statement was not itself an act of sexual harassment.
Moon also cites jokes from fellow officers as constituting a hostile work environment. However, there is no evidence of the frequency, duration, or pervasiveness of these jokes. Officer Carla Ifrate stated unequivocally that the environment was not hostile, that jokes were sometimes silly but mutually made, and were not, in her opinion, offensive. There is no evidence these jokes affected the terms and conditions of employment. Moon fails to establish that she experienced sex discrimination that affected the terms and conditions of employment.
B Imputed to Employer
An employer will not be held liable for a discriminatory environment created by a plaintiff's co-worker or supervisor unless the plaintiff can show that
(1) the employer authorized, knew, or should have known of the harassment and (2) failed to take reasonably prompt and adequate corrective action. Washington v. Boeing Co., 105 Wn. App. 1, 11, 19 P.3d 1041 (2000). The knowledge element can be met by proof "that complaints were made to the employer through higher managerial or supervisory personnel or by proving such a pervasiveness of sexual harassment at the workplace as to create an inference of constructive knowledge." Glasgow, 103 Wn.2d at 407. Once an employer knows of the harassment, it is only required to take "reasonably prompt and adequate corrective action." Herried v. Pierce County Pub. Transp. Benefit Auth. Corp., 90 Wn. App. 468, 474, 957 P.2d 767 (1998). Employers need not take all possible measures of corrective action. Estevez v. Faculty Club of the Univ. of Washington, 129 Wn. App. 774, 796, 120 P.3d 579 (2005). Moon fails to establish the incidents can be imputed to her employer, the City of Bellevue.
Moon notified the BPD about the December 2002 incident in August 2003, and named Lt. Shovlin as her aggressor in September. There is no evidence the BPD should have known about the event prior to Moon's report. The event took place outside of work, in her home and on her own time. Without her report, the BPD would not have known. The record indicates upon notice, the BPD sought to address Moon's claim. The BPD initiated an investigation, hired an outside investigator, and interviewed six other people to determine if the claim had validity. Even when the BPD concluded there was no sexual harassment, at Moon's request, it separated Moon and Lt. Shovlin to ensure no future problems. Internally, the BPD leadership discussed sexual harassment and whether it was properly being addressed. After the investigation, Lt. Shovlin was disciplined, despite being cleared of the sexual harassment complaint. The record shows the BPD took prompt remedial action on Moon's claim.
The record indicates prior to receiving Moon's request for accommodation, the BPD instructed Lt. Shovlin not to contact Moon.
In regards to Moon's evidence of other women experiencing sexual harassment, the record fails to show the BPD knew of these incidents but did not take prompt remedial action. Moon failed to show pervasiveness necessary to establish constructive knowledge of any harassment. Moon has not shown the alleged harassment was imputed to the employer.
We affirm summary judgment on Moon's sexual discrimination claims.
4. Retaliation
Moon next asserts the trial court erred in dismissing her claim of retaliation for complaining about unlawful sexual harassment under RCW 49.60.210. RCW 49.60.210(1) provides in relevant part:
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.
To establish a prima facie case of retaliation for a protected activity, Moon must show that "(1) she engaged in statutorily protected activity, (2) an adverse employment action was taken, and (3) there was a causal link between the employee's activity and the employer's adverse action." Estevez v. Faculty Club of the Univ. of Washington, 129 Wn. App. 774, 797, 120 P.3d 579 (2005).
If Moon establishes a prima facie case, then the City of Bellevue may attempt to rebut the case by presenting evidence of a legitimate nondiscriminatory reason for the employment decision. Wilmot v. Kaiser Aluminum Chemical Corp., 118 Wn.2d 46, 70, 821 P.2d 18 (1991). The burden then shifts back to Moon, who can attempt to prove that the employer's reason is pretextual. Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 180-81, 23 P.3d 440 (2001) (noting that Washington courts have adopted the burden-shifting proof mechanism of federal courts outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973)).
Moon identifies the following actions as retaliatory: excluding Moon from working as a field training officer (FTO), which allowed her to train new employees and receive a two percent pay increase; reduced scores on job evaluations; the BPD decision not to schedule Lt. Shovlin on different shifts; Lt. Flores placing Moon's clean uniform on the floor; a statement by Lt. Dempsey that Moon could be required to write the city a check for the time she took to make the complaints; and Lt. Lynch telling co-workers that Moon was "more sensitive than others." Additionally, Moon provides examples of the BPD's treatment of other individuals as evidence of retaliation.
To establish a prima facia case of retaliation, a person must have engaged in a statutorily protected activity. Estevez, 129 Wn. App. at 797. "'[A]n employee who opposes employment practices reasonably believed to be discriminatory is protected by the 'opposition clause' whether or not the practice is actually discriminatory.'" Graves v. Dept. of Game, 76 Wn. App. 705, 712, 887 P.2d 424 (1994) (quoting Gifford v. Atchison, T S.F. Ry., 685 F.2d 1149, 1157 (9th Cir. 1982)). For purposes of summary judgment, we presume a claim for sex discrimination is a statutorily protected activity, regardless of whether or not the alleged conduct is ultimately found to be discriminatory.
The record also contains material facts sufficient to establish that the BPD took adverse employment actions. Both parties cite Burlington Northern Santa Fe Ry. v. White, a recent U.S. Supreme Court case that defined adverse employment actions as "those (and only those) employer actions that would have been materially adverse to a reasonable employee or job applicant. In the present context that means that the employer's actions must be harmful to the point that they could well dissuade a reasonable worker from making or supporting a charge of discrimination." ___ U.S. ___, 126 S. Ct. 2405, 2409, 165 L. Ed. 2d 345 (U.S. 2006). The Court held material adversity does not include "trivial harms," and "[a]n employee's decision to report discriminatory behavior cannot immunize that employee from those petty slights or minor annoyances that often take place at work and that all employees experience." Id. at 2415. Moon lists several actions — specifically, her transfer from the FTO program and lowered performance evaluations — which certainly rise to the criteria outlined in Burlington. Moon's other alleged examples of retaliation are isolated instances that do not rise to the level of being materially adverse as required by Burlington.
However, Moon fails to show a causal link between the complaint and the BPD's alleged adverse actions. To show a causal connection, the employee must specifically show that the employer's motivation for the discharge was the employee's exercise or intent to exercise the protected rights. Wilmot, 118 Wn.2d at 68. The plaintiff need not establish that retaliation for protected activity was the sole reason for the adverse employment actions. Instead, she must show only that retaliation was a substantial motivating factor. Allison v. Housing Auth., 118 Wn.2d 79, 95-96, 821 P.2d 34 (1991).
In recognition of the difficulty of proving motive, our courts have allowed an employee to establish the causation element of the prima facie case merely by showing that the employee participated in a protected activity, that the employer had knowledge of the activity, and that the employee suffered an adverse employment action. Wilmot, 118 Wn.2d at 69. Once a plaintiff has established a prima facie case of retaliation, the defendant employer may rebut the plaintiff's case by demonstrating a legitimate reason for the adverse employment decision. Id. at 70. If the employer successfully demonstrates a legitimate reason, the plaintiff must then show that the employer's proffered reason is merely a pretext. Id.
Here, the BPD transfer of Moon from a prestigious program and lower evaluations raises a rebuttable presumption that they were retaliatory. But, as Moon's counsel acknowledged in oral argument, the FTO program was a catch-22 for the BPD because Moon was moved from the FTO program at her own request for accommodation. Lt. Shovlin supervised the FTO program. Moon's request for accommodation was mutually exclusive with her continued involvement in the FTO program. The record supports the city's contentions that these actions were not retaliatory.
Next, the record supports the city's claims that the lower evaluations were not retaliation. In September 2004, Moon's quarterly report identified several incidents as exemplary of her strengths, including that she was "tenacious" in pursuing suspects. Her supervisor recommended Moon receive an award for her efforts in a particular case. He identified several weaknesses. According to the report, Moon was deficient in timely completing her paper work. It also noted she violated the BPD's policies by smoking with a victim. Moon provides no evidence that these were statements were false or merely pretextual for the lower performance evaluations. Moon has failed to establish a causal link between her complaint and the adverse employment actions taken by the BPD.
We affirm summary judgment on Moon's retaliation claims.
5. Accommodation
Moon claims the city failed to reasonably accommodate her post-traumatic stress disorder, a disability. State law requires employers to reasonably accommodate a disabled employee unless the accommodation would be an undue hardship. RCW 49.60.180(2); Pulcino v. Federal Express Corp., 141 Wn.2d 629, 639, 9 P.3d 787 (2000). The employee must establish four elements to prove discrimination based on lack of accommodation: "'(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.'" Davis v. Microsoft Corp., 149 Wn.2d 521, 532, 70 P.3d 126 (2003) (quoting Hill v. BCTI Income Fund I, 144 Wn.2d 172, 192-93, 23 P.3d 440 (2001)).
Moon argues she falls within the statutory definition of disability recently enacted into law by Substitute Senate Bill 5340, 60th Legislature, 60th Regular Session (Wash. 2007), and the prior definition in McClarty v. Totem Electric, 157 Wn.2d 214, 228, 137 P.3d 844 (2006). Case law on reasonable accommodation requires only "sensory, mental, or physical abnormality that substantially limited his or her ability to perform the job." Davis v. Microsoft Corp., 149 Wn.2d 521, 532, 70 P.3d 126 (2003). This standard is reaffirmed in the language of the bill:
(d) Only for the purposes of qualifying for reasonable accommodation in employment, an impairment must be known or shown through an interactive process to exist in fact and: (i) The impairment must have a substantially limiting effect upon the individual's ability to perform his or her job, the individual's ability to apply or be considered for a job, or the individual's access to equal benefits, privileges, or terms or conditions of employment; or (ii) The employee must have put the employer on notice of the existence of an impairment, and medical documentation must establish a reasonable likelihood that engaging in job functions without an accommodation would aggravate the impairment to the extent that it would create a substantially limiting effect.
Moon claims the BPD failed to reasonably accommodate her request. "To accommodate, the employer must affirmatively take steps to help the disabled employee continue working — at the existing position or through attempts to find a position compatible with her limitations." Griffith v. Boise Cascade, Inc., 111 Wn. App. 436, 442, 45 P.3d 589 (2002). However, an employer is not required to reassign an employee to a position that is already occupied, to create a new position, or to eliminate or reassign essential job functions. Pulcino, 141 Wn.2d at 644. An employer has the duty of taking those steps "reasonably necessary to enable the employee to perform his or her job." Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 146, 94 P.3d 930 (2004). "The employee has the burden of showing that a specific reasonable accommodation was available to the employer at the time the employee's physical limitation became known and that accommodation was medically necessary." Pulcino, 141 Wn.2d at 643. The record does not support Moon's contention that the city failed to accommodate her post-traumatic stress disorder.
In January 2004, the BPD met with Moon to outline an accommodation plan. Moon was assigned to a different squad, in a different precinct, her office was moved to a different building to avoid encounters, and she was permitted to leave during lunch. There is no evidence in the record that the BPD ceased these accommodations. The BPD took reasonable steps to remove the trigger for Moon's post-traumatic stress disorder by physically separating the working places of the two officers.
Moon contends the accommodation was ended based on statements by Officer Bruce Vestal, but the statements do not support the contention that the special accommodation was altered. Instead, Vestal recalls in his deposition that on February 25, 2005, Lt. Shovlin asked whether he had to avoid contact with Moon or was able to work as normal as a result of the accusation and investigation. The record does not contain the exact response. Instead, Vestal recalls that in the context of punishment for Lt. Shovlin, he was told there was no legal requirement that he avoid contact with Moon.
Moon argues that these changes failed to meet her accommodation request. In essence, she says the city was obligated to provide a single accommodation: placement on different shifts from Lt. Shovlin. Washington case law does not support such a contention. Reassignment is one option, but an employer is not required to make such an accommodation. MacSuga v. Spokane County, 97 Wn. App. 435, 442, 983 P.2d 1167 (1999). An employer has no duty to provide a new supervisor as a reasonable accommodation. Snyder v. Med. Serv. Corp., 145 Wn.2d 233, 240-41, 35 P.3d 1158 (2001). The employee in Synder had post-traumatic stress disorder due to a previous encounter with her supervisor. Snyder argued she was qualified to perform the essential functions of the job, but could do so only with a new supervisor. The court held, "However[,] if Synder can perform the job, then she has no disability requiring accommodation simply because she has a personality conflict with her supervisor." Id. at 241.
The reasoning in Synder applies here. Moon requested accommodation for post-traumatic stress resulting from a non-work related encounter with Lt. Shovlin. While her symptoms of post-traumatic stress were medical in nature, they nevertheless stemmed from a personality conflict. Washington law does not require an employer to replace a supervisor when a prior incident between the supervisor and employee resulted in post-traumatic stress disorder. Certainly, an employer has no duty to separate co-workers when the post-traumatic stress disorder resulted from an off-worksite encounter and the employee has less control than a supervisor over the complaining employee. The BPD was not obligated to transfer her to a different shift. We affirm summary judgment on Moon's disability claims.
We affirm.
WE CONCUR: