Opinion
No. 26166-2-III.
October 9, 2008.
Appeal from a judgment of the Superior Court for Ben ton County, No. 05-2-02685-2, Vic L. VanderSchoor, J., entered May 9, 2007.
UNPUBLISHED OPINION
Jim Butler and Anthony Nicholson appeal the summary dismissal of their suit alleging failure to accommodate disabilities and retaliation for filing worker's compensation claims against Bechtel National, Inc. (Bechtel). We affirm.
FACTS
1. Introduction. The United States Department of Energy (DOE) contracted with Bechtel to construct a waste treatment plant at the Hanford Reservation. Morning exercise was part of the daily routine. Bechtel contracted for free on-site medical care at a "First Aid" station for its employees injured on the job. Employees were referred to off-site health care providers when First Aid could not handle the problem. Bechtel required employees to report work-related injuries to First Aid. If an employee received off-site medical care for a work-related injury, the work rules required the employee to report to First Aid before returning to work and present any work restrictions for review by First Aid, the employee's superintendent, and a safety representative to determine available work tasks conforming to the restrictions.
Bechtel's written attendance policy required employees absent for any reason to call and notify Bechtel before a shift started. Bechtel customarily required written Leave of Absence (LOA) forms in advance to excuse an absence or late start. The work rules stated "[t]wo (2) unexcused absences, late starts or early quits within a thirty (30) day work period shall constitute poor or irregular attendance." Clerk's Papers (CP) at 596. Upon the first infraction for poor or irregular attendance, the rules allowed a written warning; a second infraction within the same year called for termination of employment.
2. Mr. Butler. Mr. Butler was hired by Bechtel in October 2003 as a general laborer. On March 4, 2004, he injured his head and shoulders at work. He was taken to First Aid, then to a hospital where he was examined, given pain medication, and released the same day with instructions to return to work, with no restrictions listed.
The next scheduled work day, Mr. Butler contacted nurse practitioner Jody Underwood at First Aid. Ms. Underwood set up an appointment for him with James B. Johnson, M.D. that same day. Dr. Johnson diagnosed Mr. Butler with a head contusion, headaches, and vertigo. Dr. Johnson stated Mr. Butler could return to work at modified duty for seven days, through March 15, 2004, with restrictions: minimal bending at the waist and minimal twisting of the neck, "avoid[ing] repetitive bending or twisting of the neck." CP at 506. Mr. Butler gave Ms. Underwood a copy of the restrictions and she consulted with a superintendent and safety representative, before Mr. Butler was assigned light-duty general clean-up, for the restricted seven days.
On April 13, 2004, Mr. Butler gave First Aid notes from Jason N. Prigge, D.C., who reported on April 12, 2004, that Mr. Butler was treated for cervical and thoracic strain. By an April 7, 2004 note, Dr. Prigge set work restrictions allowing Mr. Butler to return to work on April 8, 2004, with restrictions for one week: "[n]o lifting 15 lbs. No pushing a broom/sweeping for more than 30 min. at one time, limit standing to 30 min. at one time." CP at 513. In response, Bechtel assigned: "Review Drawings; Clean T-37 T-2[,] Sweep floors, dust not over 30 min at a Time." CP at 234. Further, Mr. Butler was instructed to read training manuals. First Aid received no further doctor notes with restrictions from Mr. Butler.
On March 9, 2004, Mr. Butler filed a workers' compensation claim with Labor and Industries (LI). Ms. Underwood filled in the attending physician portion of the form. On May 10, 2004, the claim was approved, and then closed because medical treatment was concluded. On December 5, 2005, Mr. Butler applied to re-open the claim.
On February 17, 2004, before his injury, Mr. Butler was given a "Documented Verbal Warning" regarding his irregular attendance, informing him "[d]uring the last thirty days you have missed six days and had three early quits . . . [f]urther violations of the Job Site Work Rules may result in additional disciplinary action up to and including termination." CP at 233. In May 2004, Bechtel reviewed Mr. Butler's attendance. From April 20, 2004 through May 3, 2004, Mr. Butler had two late starts, two early quits, and one approximately three and a half hour mid-day absence from the site. On May 6, 2004, Mr. Butler's employment by Bechtel was terminated, all unrelated to his medical problems.
3. Mr. Nicholson. In April, 2003, Mr. Nicholson began working for Bechtel as a general laborer. He hurt his left shoulder at work on June 9, 2003. First Aid assessed a shoulder strain and returned him to work the same day with advice to restrict the use of his left arm. Bechtel gave accommodating work assignments. On June 10, 2003, First Aid xrayed Mr. Nicholson's shoulder. An off-site radiologist reviewed the x-rays, and concluded they were negative for acromioclavicular (AC) separation, and the AC joints were normal.
On May 4, 2004, Mr. Nicholson filed an LI claim. Ms. Underwood provided the forms to Mr. Nicholson, and filled in the attending physician portion. On May 28, 2004, LI denied the claim. Later, on December 20, 2004, LI set aside the denial, and on May 15, 2005, the claim was allowed.
On May 12, 2004, Mr. Nicholson brought a note from Walter J. Hales, M.D. to First Aid limiting left arm/shoulder use during morning exercise until tests were completed. Bechtel did not require Mr. Nicholson to use his left arm in morning exercises. First Aid received no further updates or restrictions from Mr. Nicholson.
On June 16, 2003, Dr. Johnson examined Mr. Nicholson and concluded he had rotator cuff strain, but did not advise any work restrictions. Even so, Ms. Underwood gave Mr. Nicholson work restrictions limiting left arm use and over-shoulder activity, permitting trash pickup for one week. Due to his continuing pain, Ms. Underwood sent Mr. Nicholson's June 10, 2003 x-rays for review by a second radiologist, who concluded Mr. Nicholson's left shoulder had "bilateral calcific tendonitis, bilateral acromioclavicular degenerative joint disease, and bilateral type III acromion." CP at 481, 494. Ms. Underwood opined these conditions were chronic and likely preceded his job injury.
On November 4, 2004, Bechtel laid Mr. Nicholson off. On February 21, 2005 Bechtel rehired him, before again laying him off on March 31, 2005. Mr. Nicholson joined Mr. Butler's November 16, 2005 suit against Bechtel via an amended complaint.
The action also included two additional plaintiffs, Jill Osborn and Dino Flores, who are not parties to this appeal.
4. Proceedings below. Mr. Nicholson and Mr. Butler alleged (1) Bechtel failed to reasonably accommodate their disabilities or handicaps and (2) they were discharged from employment because they filed LI claims. Bechtel moved for summary judgment against both plaintiffs. Both sides offered voluminous materials listed by the trial court in its summary judgment order. Mr. Butler and Mr. Nicholson asserted for the first time in their response that they were terminated because of their disabilities.
Mr. Butler's December 29, 2005 medical records mention no work limitations. Dr. Hales recorded a November 17, 2005 visit and described Mr. Nicholson's chronic left shoulder condition. On April 5, 2006, Dr. Hales discussed Mr. Nicholson's surgery plan. Mr. Butler deposed that his work limitations were those given by Dr. Johnson and Dr. Prigge and he did not recall being required to work beyond the prescribed restrictions. Mr. Butler deposed that his work beyond Dr. Prigge's restrictions occurred only after the restriction period. During the restricted time, he was assigned to reading training manuals. Mr. Butler never reported his light-duty request to First Aid, but may have complained to his foreman. Bechtel's Labor Relations Manager, Terry George declared Mr. Butler's five unexcused absences for late starts, mid-day absences, and early quits were unrelated to his injury-related excused absences; Mr. Butler did not contradict him.
Mr. Nicholson deposed in response to Bechtel's questions he "found a job [he] could do in the condition that [he] had" so he did not need to ask for work restrictions for raising his left arm. CP at 378. Mr. Nicholson believed Bechtel should have accommodated his left arm problem further after returning to full duty, but solely mentioned the problem to his foreman without informing First Aid.
Mr. Nicholson acknowledged before his first layoff on November 4, 2004: "I did not avoid assignment such as climbing, lifting, working in walls, or working with pneumatic tools. I was never assigned such work." CP at 39. After he was rehired in February 2005, Mr. Nicholson related he did some heavy labor that hurt, but did not complain or ask for work restrictions for fear of "losing my job." CP at 40.
Regarding retaliation, Mr. Butler deposed that while Bechtel never said it did not want him to report his injuries, he believed he was pressured not to report his injuries because to qualify for a "good bonus check," Bechtel needed to keep high "man hours" and an "exceptional [safety] record." CP at 796. Mr. Butler asserted Bechtel received "extra pay" from DOE, "the less its workers report job injuries." CP at 43A. Further, Mr. Butler relied on the deposition of Bechtel foreman John Mountain who tied "man hours without lost time" to a site-wide "bonus[;]" Mr. Mountain did not "know how it worked, it was out of [his] realm." CP at 1004-005.
Bechtel responded with Bechtel Labor Relations Manager Terry George, who deposed "injuries per work hours" did not relate to Bechtel payments under the DOE contract, even though in the past some Bechtel employees received higher pay based on Bechtel's safety record. CP at 806. He explained a program, where union craft members received incentive pay. When asked "[d]id Bechtel itself as a corporation share at all in that incentive pay?" Mr. George answered, "No." CP at 1038.
Mr. Butler deposed he received and read a copy of the jobsite work rules that included irregular attendance rules. Mr. Butler admitted he received the February 17, 2004 "Documented Verbal Warning" for irregular attendance, and knowing that he might be terminated if his attendance did not improve. CP at 233. Mr. Butler admitted from April 20, 2004 through May 3, 2004, he had two late starts, two early quits, and one mid-day absence from work, and did not claim any were related to his medical problems.
Mr. Nicholson deposed that his retaliation claim was limited to his first lay-off. He asserted, like Mr. Butler, that Bechtel received extra pay under its contract if workers did not "report job injuries." CP at 36. Like Mr. Butler, Mr. Nicholson relied upon Mr. Mountain to support his retaliation claim. He inferred that Ms. Underwood and a "Larry" discouraged him from filing an LI claim because it "would impact the program whereby Bechtel got bonuses if nobody is hurt at work." CP at 37. Mr. Nicholson asserted that when he was hurt Ms. Underwood told him if he did not file an LI claim Bechtel would take care of him.
In response, Mr. George declared he did not know a "Larry," Bechtel did not allow indefinite employment, and he had never "heard of the `deal' Mr. Nicholson now alleges." CP at 586. Ms. Underwood declared:
Mr. Nicholson said he did not want to file an L I claim, but if he did not, he wanted assurance that he would not be laid off. I brought in Jess Hinman, a safety representative, to speak with Mr. Nicholson. Mr. Hinman told Mr. Nicholson, as I had done previously, that he was free to file an L I claim at any time; it was his choice.
CP at 481.
Regarding Mr. Nicholson's second lay-off, Mr. George declared:
Due to budget and funding considerations, Bechtel had a series of workforce adjustments from late August 2004 through late October 2004. There were nine successive layoffs involving laborers, with 47 laborers being laid off in total. The layoffs included 190 other craft workers as well. A tenth reduction in force occurred on November 4, 2004, which included Mr. Nicholson.
Nine carpenters and five laborers were let go in the same reduction of force as Mr. Nicholson.
CP at 585-86.
The trial court summarily dismissed all claims asserted by Mr. Butler and Mr. Nicholson because they failed to raise material facts. This appeal followed.
ISSUE
The issue is whether the trial court erred in deciding no material facts remained on the parties' accommodation, disparate treatment, and retaliation claims when it summarily dismissed those claims against Bechtel.
STANDARDS
We review summary dismissals de novo, engaging in the same inquiry as the trial court. Korslund v. Dyncorp Tri-Cities Servs., Inc., 156 Wn.2d 168, 177, 125 P.2d 119 (2005). We must view the facts and give reasonable inferences in a light most favorable to the non-moving party to determine if no genuine issues of material fact remain before granting summary judgment to the moving party as a matter of law. McClarty v. Totem Elec., 157 Wn.2d 214, 220, 137 P.3d 844 (2006). "A material fact is one upon which the outcome of the litigation depends." Barrie v. Hosts of Am., Inc., 94 Wn.2d 640, 642, 618 P.2d 96 (1980). Factual issues may be decided as a matter of law only if reasonable minds could reach but one conclusion. Sherman v. State, 128 Wn.2d 164, 184, 905 P.2d 355 (1995).
We do not consider inadmissible evidence. Dunlap v. Wayne, 105 Wn.2d 529, 535, 716 P.2d 842 (1986). "When a party has given clear answers to unambiguous [deposition] questions which negate the existence of any genuine issue of material fact that party cannot thereafter create such an issue with an affidavit that merely contradicts, without explanation, previously given clear testimony." Marshall v. ACS Inc., 56 Wn. App. 181, 185, 782 P.2d 1107 (1989) (alteration in original).
Under the Washington Law Against Discrimination (WLAD), chapter 49.60 RCW, "[i]t is an unfair practice for any employer" to discharge or discriminate against an employee based on "the presence of any sensory, mental, or physical disability." RCW 49.60.180(2), (3). Under RCW 49.60.180, two causes of action exist for disabled employees: (1) failure to accommodate and (2) disparate treatment. Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 145, 94 P.3d 930 (2004) (citing Jane Doe v. Boeing Co., 121 Wn.2d 8, 17, 846 P.2d 531 (1993)). Here, Mr. Butler and Mr. Nicholson allege both causes of action, along with an allegation they were terminated in retaliation for filing workers' compensation claims.
ANALYSIS A. Accommodation
"To eliminate discrimination in the workplace, state law requires employers to reasonably accommodate a disabled employee unless the accommodation would be an undue hardship on the employer." Riehl, 152 Wn.2d at 145 (citing Pulcino v. Fed. Express Corp., 141 Wn.2d 629, 639, 9 P.3d 787 (2000); former WAC 162-22-080 (1998)). To prove discrimination based on failure to accommodate, the employee must show four elements:
(1) [T]he 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.
Id. (citing Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 192-93, 23 P.3d 440 (2001) ( overruled on other grounds by McClarty, 157 Wn.2d at 214; Davis v. Microsoft Corp., 149 Wn.2d 521, 532, 70 P.3d 126 (2003)).
At the time both plaintiffs were terminated, the WLAD did not include a definition of "disability." See former RCW 49.60.040 (2004). On July 6, 2006, our Supreme Court defined "disability" for purposes of the WLAD by adopting the definition set forth in the federal Americans with Disabilities Act of 1990. See McClarty, 157 Wn.2d at 220, 228. Specifically, the court held "a plaintiff bringing suit under the WLAD establishes that he has a disability if he (1) has a physical or mental impairment that substantially limits one or more of his major life activities, (2) has a record of such an impairment, or (3) is regarded as having such an impairment." McClarty, 157 Wn.2d at 228.
Both sides in this dispute argue the McClarty definition of "disability" applies. But after McClarty, the legislature added a statutory definition of "disability" to the WLAD, effective July 22, 2007. Laws of 2007, ch. 317, § 2; see also RCW 49.60.040(25) (codification of the amendment). For purposes of our analysis, we assume, without deciding, a disability exists for Mr. Butler and Mr. Nicholson because accommodation, not disability, is decisive here. See Christiano v. Spokane County Health Dist., 93 Wn. App. 90, 93-95, 969 P.2d 1078 (1998) (affirming summary judgment on accommodation claim without reaching handicap issue). In any event, the disability definition question is pending review by our Supreme Court. See Hale v. Wellpinit Sch. Dist. #49, No. 80771-0 (oral argument set for October 21, 2008).
The employee has the burden to give disability notice to the employer before an accommodation obligation arises. Goodman v. Boeing Co., 127 Wn.2d 401, 408, 899 P.2d 1265 (1995). An employer must provide accommodations only if medically necessary. Riehl, 152 Wn.2d at 147-49. "If challenged at summary judgment or trial, the employee must provide competent evidence establishing a nexus between the disability and the need for accommodation." Id. at 147-48.
Bechtel reasonably accommodated Mr. Butler following his March 4, 2004 injury. Mr. Butler was released from the hospital with no restrictions. Later, he received work restrictions from Dr. Johnson and Dr. Prigge. Dr. Johnson restricted work for seven days, and according to Mr. Butler, he was not required to work beyond the prescribed restrictions. Dr. Prigge restricted work for one week, and according to Mr. Butler, he was then instructed to read training manuals. Mr. Butler's later affidavit claiming otherwise does not create a material fact issue regarding accommodation. Marshall, 56 Wn. App. at 185. Mr. Butler deposed that his work limitations were solely those given by Dr. Johnson and Dr. Prigge. He did not report any other accommodation requests to First Aid or other Bechtel agents.
Mr. Butler's December 29, 2005 medical records do not create a material issue of fact regarding accommodation, considering that date is over a year and a half after Mr. Butler was terminated from Bechtel and does not discuss any work limitations.
Mr. Butler contends Bechtel was required to accommodate by giving more medical treatment time off, but the record shows no refused request. Viewing the record most favorably to Mr. Butler, reasonable minds could solely conclude he was terminated for absences unrelated to medical treatment. Mr. Butler does not contest his five unexcused non-medical absences.
Bechtel accommodated Mr. Nicholson immediately after his June 2003 injury. He returned to work, but was given a work task that allowed him to restrict the use of his left arm. Dr. Johnson did not advise any work restrictions, but Bechtel nonetheless provided work restrictions for one week. Dr. Hales' left arm and shoulder restrictions were observed during morning exercises, even according to Mr. Nicholson. And, Mr. Nicholson acknowledged he was fine with the work he was doing.
Next, Mr. Nicholson argues Bechtel did not accommodate him after his 2005 rehiring because he could not use his left arm very well, but Mr. Nicholson did not inform First Aid or other Bechtel agents or get a doctor to give additional work restrictions; instead, he deposed that he worked and did not complain. Thus, he failed to give notice to Bechtel of his disability during this time frame. See Hume v. Am. Disposal, 124 Wn.2d 656, 671-72, 880 P.2d 988 (1994). Moreover, Mr. Nicholson's second period of Bechtel employment was over a year and a half after his injury.
Mr. Nicholson's medical records submitted in response to summary judgment do not create a material fact issue concerning accommodation. Dr. Hales' LI letter states Mr. Nicholson's last visit was November 17, 2005, more than seven months after his second lay-off from Bechtel. Likewise, the April 5, 2006 records for Mr. Nicholson's left shoulder surgery are more than one year after his second lay-off.
In sum, we conclude the trial court did not err in granting summary judgment to Bechtel on Mr. Butler and Mr. Nicholson's accommodation claims.
B. Disparate Treatment
Mr. Butler and Mr. Nicholson contend they were terminated by Bechtel because of their respective disabilities. These claims were not alleged in their complaints, but were raised first in their responses to Bechtel's motion for summary judgment.
"[T]he complaint must provide both the court and an opposing party with notice of the general nature of a plaintiff's claims." Camp Fin., LLC v. Brazington, 133 Wn. App. 156, 162, 135 P.3d 946 (2006) (citing Nw. Line Constructors Chapter of Nat'l Elec. Contractors Ass'n v. Snohomish County Pub. Util. Dist. No. 1, 104 Wn. App. 842, 848-49, 17 P.3d 1251 (2001)). Further, "[a] complaint generally cannot be amended through arguments in a response brief to a motion for summary judgment." Id. (citing Kirby v. City of Tacoma, 124 Wn. App. 454, 472, 98 P.3d 827 (2004)). Therefore, we decline to consider these new claims.
C. Retaliation
Mr. Butler and Mr. Nicholson contend they were terminated by Bechtel because they filed workers' compensation claims.
In a case alleging wrongful termination in retaliation for seeking workers' compensation benefits, the employee must first establish a prima facie case. Wilmot v. Kaiser Aluminum Chem. Corp., 118 Wn.2d 46, 68, 821 P.2d 18 (1991). Specifically, the employee must show:
(1) [T]hat he or she exercised the statutory right to pursue worker's benefits under RCW Title 51 or communicated to the employer an intent to do so or exercised any other right under RCW Title 51; (2) that he or she was discharged; and (3) that there is a causal connection between the exercise of the legal right and the discharge, i.e., that the employer's motivation for the discharge was the employee's exercise of or intent to exercise the statutory rights.
Id. at 68-69.
If the employee establishes a prima facie case, the burden of production shifts to the employer to "articulate a legitimate nonpretextual nonretaliatory reason for the discharge." Id. at 70. If the employer meets this burden, the burden of production then shifts back to the plaintiff. The plaintiff must respond by showing one of the following: "the reason is pretextual, or by showing that although the employer's stated reason is legitimate, the worker's pursuit of or intent to pursue workers' compensation benefits was nevertheless a substantial factor motivating the employer to discharge the worker." Id. at 73.
Assuming, without deciding, that Mr. Butler can establish a prima facie retaliation case, the burden shifts to Bechtel to articulate a legitimate termination reason. Bechtel asserts Mr. Butler was terminated for irregular attendance, and the record sufficiently supports that assertion to shift the burden back to Mr. Butler to show pretext, or that his pursuit of workers' compensation was a substantial factor in his termination.
Mr. Butler merely points to safety talks before morning exercises that urged employees to be safe and stay injury-free. Mr. Butler lacks a factual foundation for his argumentative assertion that Bechtel receives gains financially from DOE based on a safety record showing fewer workers reporting job injuries. Mr. Mountain's deposition does not aid Mr. Butler because he lacked personal knowledge and could not substantiate Mr. Butler's claims. Therefore, we cannot consider this evidence. See ER 602 (stating "[a] witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter").
Thus, Mr. Butler fails to present admissible evidence supporting his assertion that "Bechtel gains financially the less its workers report job injuries." CP at 43A. Encouraging employees to be safe and injury-free does not equate to telling or discouraging employees from filing LI claims if they are injured on the job.
Mr. Butler filed his LI claim almost two months before he was terminated. The claim was approved. Mr. Butler acknowledged he received and read a copy of the jobsite work rules, including the portion regarding irregular attendance. Mr. Butler received the "Documented Verbal Warning" on February 17, 2004 regarding his irregular attendance, and understood he might be terminated if his attendance did not improve. CP at 233. Mr. Butler gave no medical excuse for the five absences. Given all, reasonable minds could solely conclude that Mr. Butler has failed to present either pretext evidence or show that retaliation was a substantial factor in his termination.
Mr. Nicholson limits his retaliation claim to his first lay-off in November 2004. Bechtel terminated Mr. Nicholson along with nine carpenters and five other laborers, as part of a series of reductions in workforce. Bechtel shows nine successive layoffs, involving a total of 47 laborers, occurred prior to the workforce reduction involving Mr. Nicholson. We have already rejected the financial-gain argument posed by Mr. Butler that is also raised by Mr. Nicholson. Given all, Mr. Nicholson fails to show pretext or that his pursuit of workers' compensation was a substantial factor in his termination.
Finally, we note Mr. Nicholson's "Larry" evidence is inadmissible hearsay that we cannot consider. See ER 801(c) (defining "hearsay"). Considering First Aid gave Mr. Nicholson LI forms and helped fill them out, it is a hollow argument in any event. Mr. Nicholson worked for Bechtel six additional months after his LI claim before he was terminated. See, e.g., Anica v. Wal-Mart Stores, Inc., 120 Wn. App. 481, 493-94, 84 P.3d 1231 (2004) (termination three months after filing a workers' compensation claim was not evidence of retaliation). And, after his termination, Mr. Nicholson was rehired by Bechtel for a short period of time. Mr. Nicholson's evidence fails to raise sufficient facts to support his claim. Reasonable minds could reach but one conclusion, Bechtel did not retaliate against Mr. Nicholson when it terminated his employment.
Affirmed.
A majority of the panel has determined this opinion will not be printed in the Washington Appellate Reports, but it will be filed for public record pursuant to RCW 2.06.040.
SCHULTHEIS, C.J. and KULIK, J., concur.