Opinion
No. 61251-4-I.
January 26, 2009.
Appeal from a judgment of the Superior Court for King County, No. 07-2-07921-1, James D. Cayce, J., entered January 15, 2008.
Affirmed by unpublished per curiam opinion.
UNPUBLISHED OPINION
James Mullins appeals the summary judgment dismissal of his claims for disability discrimination and retaliation against his former employer, Fisher Companies, Inc. (Fisher). Because Fisher produced evidence of legitimate nondiscriminatory reasons for terminating Mullins and Mullins failed to produce evidence that either his disability or his pursuit of workers' compensation benefits was a substantial motivating factor in Fisher's termination decision, we affirm.
FACTS
On May 31, 2006, a union dispatcher sent James Mullins, a journeyman carpenter, to work at a construction site in Tukwila run by JTM Construction, a subsidiary of Fisher. With the agreement of the union, Fisher screens its employees for drug use on the first day of employment. Fisher's Substance Abuse Program provides: "Employees will be tested within the first day of employment. If the test results are positive, the employee will be subject to immediate termination." [CP 71]
Mullins provided a urine sample for a drug test on May 31 and then began working. On June 8, 2006, Mullins reported that he had been injured in a fall on the job and filed a workers' compensation claim. After Mullins's doctor approved him for light duty work, Fisher directed Mullins to report to the Modified Duty Site Resource Center on June 20 for a light duty job assignment. On June 30, Mullins left a message for Stephanie Wood, Fisher's Chief Administrative Officer, indicating that his doctor temporarily removed his approval for light duty work.
Meanwhile, a representative from the drug testing company contacted Wood on June 13, 2006, and informed her that Mullins's drug test was positive for marijuana and that Mullins failed to contact the medical review officer to provide an explanation for the results. Wood left a message for Mullins directing him to call the medical review officer at a toll free number. Wood also contacted legal counsel for advice on whether she could terminate an employee for failing a drug test when the employee had a pending workers' compensation claim.
Based on legal advice, Wood waited until she had received written confirmation of the test results before terminating Mullins. On July 5, the drug testing company sent Wood a facsimile indicating that Mullins did not respond to the medical review officer and had failed the drug test. Wood then sent Mullins a letter terminating his employment for failing the drug test.
Mullins sued Fisher for disability discrimination under Washington's Law Against Discrimination (WLAD), RCW 49.60.180(2), and retaliation under RCW 51.48.025. The trial court granted Fisher's motion for summary judgment and dismissed Mullins's lawsuit. Mullins appeals.
Fisher has filed a motion to strike Mullins's pro se Reply brief, contending that Mullins alleges various facts that are not supported by the record and were not considered by the trial court or raised in his opening brief. We deny the motion to strike. This court can determine whether the record supports the parties' contentions and we do not consider arguments raised for the first time in a reply brief. Cowiche Canyon Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P.2d 549 (1992).
Summary judgment is appropriate if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c); Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). We review a summary judgment order by engaging in the same inquiry as the trial court, viewing the facts of a case and reasonable inferences drawn therefrom in the light most favorable to the nonmoving party. Degel v. Majestic Mobile Manor, Inc., 129 Wn.2d 43, 48, 914 P.2d 728 (1996); Michak v. Transnation Title Ins. Co., 148 Wn.2d 788, 794, 64 P.3d 22 (2003). The nonmoving party must set forth specific facts to defeat a motion for summary judgment. Young v. Key Pharms., Inc., 112 Wn.2d 216, 225-26, 770 P.2d 182 (1989). In discrimination cases, the plaintiff must establish specific and material facts to support each element of a prima facie case. Marquis v. City of Spokane, 130 Wn.2d 97, 105, 922 P.2d 43 (1966). We will sustain the trial court's judgment on any theory established by pleadings and supported by proof. Wendle v. Farrow, 102 Wn.2d 380, 382, 686 P.2d 480 (1984).
An employer cannot terminate an employee because of any sensory, mental or physical disability. RCW 49.60.010, .180(2). In addition, under RCW 51.48.025(1), "No employer may discharge or in any manner discriminate against any employee because such employee has filed or communicated to the employer an intent to file a claim for compensation or exercises any rights provided under this title."
Washington courts have adopted the McDonnell-Douglas/Burdine three-part burden allocation framework for disability discrimination claims as well as retaliation claims. McDonnell-Douglas, Corp. v. Percy Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
Under the McDonnell-Douglas/Burdine framework, Mullins has the initial burden to prove a prima facie case. If Mullins establishes a prima facie case, the burden shifts to Fisher to present evidence of a legitimate non-discriminatory reason for its actions. The burden then shifts back to Mullins to produce evidence that the asserted reason was merely a pretext. Anica v. Wal-Mart Stores, Inc., 120 Wn. App. 481, 488, 84 P.3d 1231 (2004). Mullins carries the ultimate burden at trial to prove discrimination or retaliation was a substantial factor in Fisher's decision to discharge him. But to survive summary judgment Mullins need only show a reasonable judge or jury could find his disability or his pursuit of workers' compensation benefits was a substantial motivating factor for Fisher's adverse actions. Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 185-187, 23 P.3d 440 (2001) (Hill II); Wilmot v. Kaiser Aluminum and Chem. Corp., 118 Wn.2d 46, 71-72, 821 P.2d 18 (1991).
Assuming Mullins could establish each element of a prima facie case for both discrimination and retaliation, Fisher has produced evidence establishing that Mullins was fired because he failed his drug test. The Substance Abuse Program provides: "Employees will be tested within the first day of employment. If the test results are positive, the employee will be subject to immediate termination." [CP 71] Fisher provided evidence that a test result was not considered positive until the employee had been given the opportunity to discuss the results with a medical review officer. Wood testified that when she learned of the test result and Mullins's failure to contact the medical review officer on June 13, she left him a message to give him another opportunity to do so. She consulted legal counsel because she had never fired an employee for failing a drug test after the employee had filed a workers' compensation claim. The lawyer specifically advised her to wait for written confirmation of the test result to avoid the perception that the termination was retaliatory. Based on that legal advice, she waited until receiving written confirmation of the test before terminating Mullins. There is no dispute that Wood did not receive written confirmation of the test result until July 5. Given the positive drug test result, Fisher had a legitimate reason for terminating Mullins's employment.
To establish a prima facie case of discrimination, Mullins must show: (1) Mullins was disabled; (2) Mullins was able to perform his job; (3) Mullins was fired and not rehired; and (4) a nondisabled person was hired. Reihl v. Foodmaker, Inc., 152 Wn.2d 138, 94 P.3d 930 (2004). A prima facie case for retaliation requires Mullins to show: (1) he exercised the statutory right to pursue workers' benefits under Title 51 RCW; (2) he was discharged; and (3) there is a causal connection between the exercise of the legal right and the discharge. Anica v. Wal-Mart Stores, Inc., 120 Wn. App. 481, 490-91, 84 P.3d 1231 (2004).
But Mullins presents no evidence that the stated reason was pretextual. To prove Fisher's articulated reason for discharging him is a pretext, Mullins must produce evidence that the reason is unworthy of belief. Kuyper v. State, 79 Wn. App. 732, 738, 904 P.2d 793 (1995). "?Speculation and belief are insufficient to create a fact issue as to pretext. Nor can pretext be established by mere conclusory statements of a plaintiff who feels that he has been discriminated against.'" Hines v. Todd Pacific Shipyards Corp., 127 Wn. App. 356, 372, 112 P.3d 522 (2005) (quoting McKey v. Occidental Chem. Corp., 956 F.Supp. 1313, 1319 (S.D. Tex. 1997). If Mullins does not establish pretext, Fisher is entitled to dismissal. Hill II, 144 Wn.2d at 182.
Mullins contends that he either passed the test or that Fisher could not terminate him for failing the test because he was allowed to work for more than three days. In support, Mullins relies on language in documents that do not apply to his employment. However, the terms of the Substance Abuse Program that are incorporated into the collective bargaining agreement with the union do not include such a provision.
Mullins argues that Wood's failure to immediately terminate him or notify him of the test result after she learned of it on June 13 shows that she did not intend to terminate him based on the drug test, especially in light of the fact that she spoke with him on the phone about his light duty assignment on June 16 and 19. But, as previously described, Wood left a message for Mullins about the result and decided to wait for written confirmation before terminating him. Mullins's speculation and belief regarding Wood's motivation for answering his questions about light duty rather than repeating the information she left on his voicemail does not create a fact issue as to pretext.
Mullins also attempts to establish evidence of pretext by comparing his case to Fisher's treatment of other employees. Fisher's records indicate that all other employees who failed a drug test were informed and terminated within one to five days. Mullins contends that Fisher's decision to retain him for several weeks after learning of the test results demonstrates that its stated reason for the termination is pretextual. But Wood explained that because she had never terminated an employee for failing a drug test when the employee had a pending worker's compensation claim, she decided to keep Mullins on the payroll and delay his termination until she had given him an additional opportunity to respond to the medical review officer and received written confirmation of the test results. Fisher's decision to treat Mullins more favorably than other employees does not raise a genuine issue of material fact as to pretext for discrimination.
Mullins also contends that the trial court improperly dismissed his retaliation claim. In particular, he contends that the following facts cast doubt on Fisher's stated reason for the termination: (1) Fisher challenged Mullins's right to benefits with the Department of Labor and Industries; (2) Fisher retained Mullins and offered him a light duty position despite Wood's knowledge of the drug test results; and (3) the timing of his termination coincided with his doctor's June 29 decision to remove him from light duty. According to Mullins, Wood terminated Mullins based on her realization that his injuries were more severe than originally believed. But Mullins presents no evidence to support his theory or contradict Wood's claim that she decided not to take action on the drug test until she received written confirmation of the results. And the evidence demonstrates that Wood sent the termination letter only after receiving the written test results on July 5.
On this record, there is no evidence Mullins was terminated for any other reason than his failure of the drug test. Thus, Fisher is entitled to judgment as a matter of law.
Additionally, Mullins asserts a number of facts and arguments in his briefing that are irrelevant, not supported by the record or were not raised in the trial court. We need not consider such issues and arguments. RAP 9.12; RAP 2.5.
Affirmed.