Opinion
No. 51852-6-I.
Filed: June 1, 2004. UNPUBLISHED OPINION
Appeal from Superior Court of King County. Docket No: 00-2-27263-4. Judgment or order under review. Date filed: 01/31/2003. Judge signing: Hon. James D Cayce.
Counsel for Appellant(s), Mary Ruth Mann, Law Offices of Mary R. Mann Associates, Historic Broderick Bldg, 615 2nd Ave Ste 760, Seattle, WA 98104.
Patrick Leo McGuigan, Mann Peck, 1423 Western Ave, Seattle, WA 98101-2021.
Counsel for Respondent(s), Kenneth Joel Diamond, Attorney at Law, 1200 5th Ave Ste 1910, Seattle, WA 98101-3135.
Steven Hill Winterbauer, Attorney at Law, 1200 5th Ave Ste 1910, Seattle, WA 98101-3135.
Randy Peterson appeals the trial court's decision to grant summary judgment in favor of his employer on his claims of disability discrimination in violation of Washington's Law Against Discrimination, including hostile environment based on disability, discrimination based on disability, failure to accommodate his disability, and wrongful termination based on disability; retaliation; negligent infliction of emotional distress; negligent supervision; wrongful termination in violation of public policy; and discrimination based on perceived disability and failure to accommodate that perceived disability. Because Peterson failed to present a prima facie case of disability, his claims fail and we affirm the trial court's ruling.
FACTS
In 1996, Stone Container Corporation hired Mike Laughout to open a corrugated packaging plant in the Seattle area. Laughout hired Terry Hadley as Shipping Supervisor, Mark Wilson as Plant Manager, and Rick Choi as Controller. In February 1997, Laughout also hired the appellant, Randy Peterson, who previously had worked in supervisory positions for Weyerhauser, Crown Packaging and others.
The parties anticipated that Peterson would become Quality Facilitator for the company when production reached the point to justify creating that position. But in the meantime, Peterson was to assume the position of Shipping/Scheduling Team Lead.
Peterson alleges that because his 'biological clock' causes him to suffer from anxiety, insomnia, nausea, and other adverse emotional and physical symptoms when he works 'off shifts,' he told Mike Laughout and Mark Wilson that he would not accept the position with Stone Container if it meant that he would be required to work off shifts. Peterson did not recall whether they specifically discussed his health at that time, but contends that he later made it clear that his reluctance to work off shifts was based on his health. Wilson recalled that during his first interview, Peterson said that he 'didn't like second shift and that he had paid his dues' and 'stated that second shift doesn't really set well with him[.]'
According to Wilson, Peterson agreed in a later interview that he would work second shift on a temporary basis, and that without such an agreement, he would not have hired Peterson. Peterson contends that he was promised that he would never have to work off shifts, and that he would not have left his previous employment to go to work for Stone Container without that promise.
Peterson submitted to a medical examination before reporting for work at Stone Container. He did not mention any 'biological clock' difficulties or any other limitations on his ability to perform the job. He subsequently testified that he had never received medical treatment for his alleged condition.
When Peterson went to work for Stone Container, Terry Hadley was moved from day shift in the shipping department to production work, and Peterson assumed the day shift as team lead in the shipping department. By July 1997, production had increased to the point that a second shift was needed. Hadley became the second shift production supervisor, and Wilson supervised the first shift in production, along with his general management duties. In July 1997, Wilson asked Peterson to supervise production on second shift for a week while Hadley was on vacation. Peterson reminded Wilson that he was not supposed to be asked to work off shifts, but reluctantly agreed because Wilson said it would only be for a week. He contends that he suffered from insomnia and felt ill as a result. Although Wilson asked Peterson to work second shift for an additional week of Hadley's vacation, it was not necessary that Peterson actually do so, due to a lack of volume. Peterson subsequently complained to Mike Laughout that Wilson was not a competent manager. Laughout told Wilson about this conversation. On July 29, 1997, Wilson confronted Peterson and Peterson repeated to Wilson that he did not think Wilson was a competent manager. Wilson issued a verbal reprimand to Peterson, followed by a letter that same day telling Peterson that he needed to operate the shipping department more efficiently, and that he needed to communicate more effectively, and to cooperate with the production department when production needed to call men from the shipping department to help out in a crisis.
Peterson responded angrily to the reprimand and reminded Wilson that performance efficiency in the shipping department was the highest in the plant and that the shipping department consistently operated at 90 percent efficiency. When the two men left Wilson's office following the reprimand, they went to a meeting where Peterson was given an award as 'Employee of the Month.'
On August 1, 1997, Wilson wrote Peterson another letter, telling him that his attitude at the previous meeting had 'verged on insubordination,' and that this would not be tolerated in the future. Wilson also stated that Peterson had shared Wilson's July 29 letter with others at the company, and that Wilson would not tolerate this because ultimately it would cause unrest and divide the company.
In early August, at a plant-wide meeting, Wilson presented Peterson with an award as the plant's 'Team Member of the Month.' On August 6, Wilson congratulated Peterson and his team for the new plant shipping record they had set. Nevertheless, Peterson subsequently presented evidence that Wilson was complaining to other employees during this time that Peterson was not a team player because he refused to work second shifts.
On August 28, 1997, Wilson moved Hadley to the first shift in the production department and, giving Peterson's position in the shipping department to another employee, assigned Peterson to second shift in the production department, for an indefinite period. Laughout still planned to create the position of Quality Facilitator for Peterson eventually, and thought that it would be valuable cross-training for Peterson to obtain production experience. Peterson worked second shift on September 2 and 3 and then took the next two days off. He then worked second shift the following week, commencing on Monday and continuing until he left at mid-shift on Friday, September 12, stating that he felt ill.
On Monday, September 15, instead of reporting for work, Peterson went to see Dr. Rachel Gonzalez. On that same day, Dr. Gonzales faxed a letter to Rick Choi (the company controller who was also serving as the human resources director) stating in pertinent part: I examined Mr. Peterson today and consulted with him regarding work-related anxiety. Mr. Peterson was quite symptomatic with elevated pulse and blood pressure. Additionally he relates a 2 month history of very poor sleep, nausea, poor eating. After a careful interview, it is clear to me that he does not have an underlying problem with depression or anxiety that predates problems he has experienced at work. Because of the seriousness of his symptoms, I am convinced that he needs a medical leave of absence. He requires medication and counseling to treat his severe anxiety and may require medication for his blood pressure. If you have forms which need to be completed for the leave I am recommending, please send them to my office[.]
Clerk's Papers at 150.
On September 22, 1997, Choi faxed a medical certification form to Dr. Gonzalez. According to Dr. Gonzalez, she faxed the completed form back to Stone Container that same day, and then faxed it again on September 25, and again on September 30 after being told that it had never been received. Dr. Gonzales subsequently testified that she had receipt confirmations for each of these three faxes; nevertheless, Peterson received a letter from Stone Container dated September 26 stating that he would be terminated effective October 2 if he did not provide the completed medical form. On September 29, Peterson called the plant and spoke to Patty Davis, who was serving as the interim controller while Choi was away. Davis advised Peterson that the medical leave information had not been received and Peterson told her that he would check with Dr. Gonzalez, which he did. Also on September 29, Dr. Gonzalez received a call from Kelly Morse, who asked her questions about Peterson, which Dr. Gonzales answered. Dr. Gonzalez believed Morse was calling from Stone Container, and asked if the medical certification had been received. Morse said she thought so. Dr. Gonzalez later discovered that Morse worked for Valley Medical Occupational Health; nevertheless, there is indication in the record that she may have placed the call after having been contacted by Stone Container.
On September 30, 1997, Dr. Gonzalez called the plant and spoke to Wilson, who agreed to a 30-day medical leave for Peterson, contingent upon a continued evaluation. Wilson requested that she provide the appropriate medical certification form. Although Dr. Gonzalez later testified that she asked her staff to send the fax again on that day, and that she had a receipt confirming its delivery that same day, Peterson received a letter on October 10 indicating that his employment was terminated effective October 6, 1997, for failure to provide the medical certification for his leave.
According to Wilson, the plant received a completed medical certification form via fax from Dr. Gonzalez for the first time on October 10, 1997, when Dr. Gonzales sent it along with a letter protesting that Peterson's termination was being blamed on her alleged failure to provide the completed medical certificate that she had in fact provided, three separate times and that she was now forwarding for the fourth time.
Stone Container then falsely reported to the employment security department that Peterson had quit, forcing him to engage in lengthy litigation with the department in order to secure unemployment benefits.
Peterson filed this lawsuit on August 8, 2000, and filed an amended complaint on October 13, 2000, alleging disability discrimination in violation of Washington's Law Against Discrimination, including hostile environment based on disability, discrimination based on disability, failure to accommodate his disability, and wrongful termination based on disability; retaliation; negligent infliction of emotional distress; negligent supervision; wrongful termination in violation of public policy; and discrimination based on perceived disability and failure to accommodate that perceived disability. On January 31, 2003, the trial court granted the defendants' motion for summary judgment.
Peterson presents no argument on this claim on appeal.
Peterson appeals.
ANALYSIS
This court reviews a summary judgment order de novo, performing the same inquiry as the trial court. Kruse v. Hemp, 121 Wn.2d 715, 853 P.2d 1373 (1993). The court must consider the facts submitted and all reasonable inferences from those facts in the light most favorable to the nonmoving party. Wilson v. Steinbach, 98 Wn.2d 434, 437, 656 P.2d 1030 (1982). A moving defendant may satisfy the initial burden by showing that there is an absence of evidence to support the nonmoving party's case. Young v. Key Pharmaceuticals, Inc., 112 Wn.2d 216, 225 n. 1, 770 P.2d 182 (1989). The moving defendant need not submit affidavits but may instead support the motion by merely challenging the sufficiency of the plaintiff's evidence as to any material issue. Young, 112 Wn.2d at 226. In response, the nonmoving party may not rely on the allegations in the pleadings but must set forth specific facts by affidavit or otherwise that show a genuine issue exists. Las v. Yellow Front Stores, Inc., 66 Wn. App. 196, 198, 831 P.2d 744 (1992). Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Kruse, 121 Wn.2d at 722; CR 56(c).
According to the Washington Law Against Discrimination, employers may not discriminate against any person in the terms or conditions of employment or discharge any employee based on the presence of any sensory, mental, or physical disability. RCW 49.60.180(2), (3); Pulcino v. Federal Express Corp., 141 Wn.2d 629, 639, 9 P.3d 787 (2000). When an employer discharges, reassigns, or harasses an employee for a discriminatory reason the employee may present a disparate treatment claim, while an employer who fails to accommodate an employee's disability faces an accommodation claim. Roeber v. Dowty Aerospace Yakima, 116 Wn. App. 127, 135, 64 P.3d 691 (2003); Pulcino, 141 Wn.2d at 640. Peterson alleges both disparate treatment and accommodation violations.
The Act and caselaw use the terms 'handicap' and 'disability' interchangeably. Fischer-McReynolds v. Quasim, 101 Wn. App. 801, 809 n. 3, 6 P.3d 30 (2000).
In a disparate treatment discrimination case, the plaintiff employee bears the first burden of setting forth a prima facie case of unlawful discrimination. Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 181, 23 P.3d 440 (2001). An employee alleging disability discrimination must demonstrate that he (1) is in a protected class (disabled), (2) suffered an adverse employment action, (3) was doing satisfactory work, and (4) was replaced by someone not in the protected class. Roeber, 116 Wn. App. at 135; Hill, 144 Wn.2d at 181. If the employee fails to present specific and material facts to support each element of this prima facie case, the employer is entitled to judgment as a matter of law. Hill, 144 Wn.2d at 181.
If the employee establishes a prima facie case, a rebuttable presumption of discrimination temporarily takes hold, shifting the burden to the employer to present sufficient evidence of a legitimate and nondiscriminatory reason for the adverse employment action. Id. If the employer fails to meet this burden of production, the employee is entitled to summary judgment. Id. But if the employer presents sufficient admissible evidence to raise a genuine issue of fact as to whether it discriminated against the employee, the presumption established by the prima facie case is rebutted. Id. at 181-82. The burden then shifts back to the employee to provide evidence that the employer's stated reason for the adverse action is in fact pretext. Id.
Whether summary judgment is appropriate depends on the strength of the employee's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence supporting the employer's case. Roeber, 116 Wn. App. at 136; Hill, 144 Wn.2d at 186. If the record contains reasonable but competing inferences of both discrimination and nondiscrimination, the case must be submitted to a jury. Hill, 144 Wn.2d at 186. Ultimately the question is whether there is sufficient evidence for the jury to reasonably conclude that the alleged unlawfully discriminatory animus was a substantial factor in the adverse employment action. Id. at 186-87.
An accommodation claim presents two issues: (1) whether the employee was disabled; and (2) whether the employer met its affirmative obligation to reasonably accommodate the employee's disability. Pulcino, 141 Wn.2d at 640. Because the Washington Human Rights Commission definition of disability is problematic and circular, our Supreme Court has held that an accommodation claimant satisfies the disability element by proving that '(1) he or she has/had a sensory, mental, or physical abnormality and (2) such abnormality has/had a substantially limiting effect upon the individual's ability to perform his or her job.' Id. at 641. This court has now applied this definition in the disparate treatment context. Roeber, 116 Wn. App. at 136; see also, Hill, 144 Wn.2d at 192 n. 19 (recognizing 'no principled reason why it should be fundamentally harder' to establish a prima facie case in either context but acknowledging lack of opportunity to rule on whether Pulcino definition applied in all disability discrimination cases). The employee can establish that he or she has a sensory, mental, or physical abnormality by showing that he or she has a condition that is medically cognizable or diagnosable, exists as a record or history, or is perceived to exist. Pulcino, 141 Wn.2d at 641; Phillips v. City of Seattle, 111 Wn.2d 903, 906-07, 766 P.2d 1099 (1989); WAC 162-22-020(2).
Although the question of whether the employee has or had a disability is generally a question for the jury, to survive summary judgment the employee must meet the initial burden of presenting a prima facie case of discrimination, including medical evidence of a disability. Phillips, 111 Wn.2d at 909; Pulcino, 141 Wn.2d at 642; Simmerman v. U-Haul Co., 57 Wn. App. 682, 687, 789 P.2d 763 (1990) (plaintiff's affidavit that he could not do heavy lifting because of possibility of re-injuring his back was insufficient, without some medical evidence to establish prima facie evidence of disability); Fischer-McReynolds v. Quasim, 101 Wn. App. 801, 806, 809-10, 6 P.3d 30 (2000) (summary judgment appropriate where plaintiff claiming to be suffering from depression and Post Traumatic Stress Disorder failed to produce medical evidence of any such diagnosis and alleged only that she, rather than her employer, perceived her to be disabled). Issue 1: Did Peterson set forth specific facts showing there is a genuine issue for trial as to whether he is disabled as defined by RCW 49.60 such that the trial court erred in granting summary judgment?
Peterson contends that his disability is a medical condition that prevents him from working second shift approximately 3:30 p.m. to midnight. In particular, he claims that his symptoms include 'stress, nervousness, lack of sleep, blood pressure issues, grogginess, I don't eat well, and a general sick feeling.' Clerk's Papers at 91. The only medical evidence Peterson offered in response to the defense summary judgment motion was from Dr. Gonzalez. In her September 15 letter, Dr. Gonzalez referred to 'work-related anxiety,' and listed his symptoms of 'elevated pulse and blood pressure' and 'a 2 month history of very poor sleep, nausea, poor eating.' Clerk's Papers at 150. In her deposition, the following exchange occurred:
Although the respondents argue that Peterson is also claiming a disability in the form of stress resulting from working with Wilson, Peterson flatly denies this in his reply brief. Reply Brief of Appellant at 16-17. Accordingly, we do not address the question of whether such job-related stress can be a disability under Washington's Law Against Discrimination.
Q: What do you believe to be his disability at the time that you saw him?
A: I think it probably had something to do with who his supervisors were, who was being antagonistic during his work hours, and perhaps even the work hours themselves. He had trouble sleeping, he had anxiety and hypertension.
Second shift is fairly difficult when you have insomnia. When you have an antagonistic relationship with your supervisor, that's going to make it very, very difficult to work. So does that answer your question?
Q: Is it your understanding that he had been working second shift for some period of time?
A: As I stated earlier, I was unaware of how long he'd been working second shift.
Q: Can you form an opinion, then, as to whether or not working second shift was contributing to his anxiety or depression?
A: I think it could definitely be a contributor, yes, to his medical conditions.
Q: Regardless of the amount of time he worked on that shift; is that correct?
A: Yes, absolutely.
Clerk's Papers at 351.
Contrary to Peterson's claims, this evidence fails to establish that he had a medically cognizable and or diagnosable condition of being unable to work second shift. Instead, Dr. Gonzalez identified three diagnoses: anxiety, hypertension, and insomnia. Whether or not working second shift or having an antagonistic relationship with his supervisor contributed to these problems, there is no evidence that either of these potential contributing factors was actually a diagnosable medical condition in and of itself. And Peterson clearly and consistently claims throughout his briefing that his disability is a medical condition requiring that he work only on day shift lest he suffer anxiety, depression, and stress. See, e.g., Amended Brief of Appellant at 20; Reply Brief of Appellant at 1. And he flatly denies that he is claiming to have become disabled from the stress of having to deal with his supervisor Wilson.
Peterson relies on Martini v. Boeing Co., 88 Wn. App. 442, 945 P.2d 248 (1997), aff'd, 137 Wn.2d 357, 971 P.2d 45 (1999), arguing that there, the court found similar medical evidence sufficient to support the plaintiff's claims. In that case, the plaintiff Martini was diagnosed with sleep apnea, chronic depression, heart disease, and obesity. Martini, 88 Wn. App. at 446. Martini notified his employer and requested various accommodations, but eventually resigned. Id. at 446-48. Martini sued his employer for disability discrimination, specifically a failure to reasonably accommodate his disability, and prevailed at a jury trial. Id. at 449. On appeal, the employer did not contest Martini's medical evidence supporting his diagnoses. Instead, the employer contended that he failed to prove at trial that his disability interfered with his job performance. Id. at 454. This court found that substantial evidence including testimony from doctors regarding the relationship between his health and his job supported a finding that his physical and mental abnormalities interfered with his ability to perform his job. Id. at 455.
Here, the employer contests the medical evidence supporting Peterson's claim to have a disability that prevents him from working the second shift. Although Dr. Gonzalez' statements and testimony may be similar to the type described in Martini, and probably were sufficient to support a claim that a particular diagnosed abnormality interfered with his ability to perform his job, the problem is the lack of medical evidence to prove the particular diagnosis that Peterson claims here.
As to records or history, despite his symptoms, and despite the fact that he had worked such shifts in other jobs in the past, Peterson had never had a medical diagnosis relating to his alleged condition; nor had he ever seen a doctor for his symptoms before September 15, 1997. There was no reference to a limitation on shift work in his medical exam when he started working for Stone Container. And there is evidence that after Stone Container fired him, he applied for off shift work with a different employer.
Although Peterson contends that Wilson and Laughout knew about his disability and accommodated it for several months by promising that he would not be required to work second shift, see, e.g., Amended Brief of Appellant at 27-28, the only support in the record for such a theory is Peterson's own self-serving statements. Moreover, he contradicted himself on more than one occasion, saying that he did not recall whether he discussed his health reason for objecting to second shift before he was hired, that he agreed to work second shift in order to be seen as a 'team player,' and that when he spoke to Laughout after being assigned to second shift, rather than mentioning his health concerns, he simply asked, 'Have we looked at all other avenues or solutions to this problem?' Clerk's Papers at 108.
With respect to the perception of disability, although Peterson argues on appeal that he was perceived by his employer as disabled, he does not identify any specific facts to support that claim. Instead, he states in conclusory fashion that he 'was viewed as an impediment, someone who was not contributing to the apparent 'team concept' because he had a condition that prevented him from working second shift.' Amended Brief of Appellant at 31. Based on a review of the entire record, the evidence strongly suggests that Peterson disagreed with Laughout and Wilson regarding plant management decisions, questioned Wilson's competence both to Laughout and to Wilson, criticized management in front of other employees, spoke with other employees about his purported agreement that he did not have to work second shift, and responded to Wilson's criticisms of his job performance with arguments and criticisms of his own. Certainly there is substantial evidence that Laughout and Wilson knew that Peterson did not want to work the second shift. What is missing here is evidence that these supervisors perceived that Peterson had a disability, as opposed to a strong personal preference, that prevented him from working second shift without suffering adverse medical consequences.
Because Peterson failed to identify specific facts showing that there is a genuine issue for trial regarding the existence of his claimed disability of a medical condition requiring that he work only day shift, he cannot present a prima facie case of disability discrimination, under either a disparate treatment or accommodation theory, and summary judgment was appropriate.
Although Peterson spends much time in his briefs addressing what Laughout and Wilson knew about his condition, when they knew it, and repeating that Stone Container employees lied about whether they received the faxes from Dr. Gonzalez, each of these issues is only relevant to his accommodation claim if he can show that he had a disability.
Issue 2: If Peterson cannot demonstrate that he was disabled, was summary judgment proper on his remaining claims?
Peterson contends that Stone Container terminated his employment in retaliation for his actions protected by RCW 49.60. In particular, he contends that 'when he opposed respondents' discontinuing the accommodation of his disability, he was terminated. Mr. Peterson opposed respondents' discriminatory practices by asserting his rights as a disabled person and was terminated less than one month later.' Amended Brief of Appellant at 39.
Peterson then argues that Stone Container's actions during proceedings before the Employment Security Department demonstrates a discriminatory animus. Id. But because Peterson has not presented a genuine issue of fact for trial as to whether he had a medically cognizable disability, he cannot establish that he was engaged in statutorily protected activity, an element of a prima facie case of retaliation. Griffith v. Boise Cascade, Inc., 111 Wn. App. 436, 444-45, 45 P.3d 589 (2002).
Peterson's claim of wrongful discharge in violation of public policy is also predicated on a claim of disability discrimination and necessarily fails as well. Id.
Finally, Peterson's claim of negligent infliction of emotional distress also fails. Peterson has demonstrated nothing more than common workplace stresses arising from personality disputes and disagreements over employer discipline, and summary judgment was proper. Snyder v. Medical Servs. Corp., 98 Wn. App. 315, 321-24, 988 P.2d 1023 (1999), aff'd, 145 Wn.2d 233, 35 P.3d 1158 (2001).
This is not to say that the medical conditions which Dr. Gonzales diagnosed were not real. Indeed, his blood pressure was so high when Dr. Gonzales first examined him that she was concerned he might have a stroke. Stone Container may very well have violated the Family Medical Leave Act or some other law or public policy by first agreeing that Peterson would be placed on medical leave for 30 days and then firing him six days later. Moreover, there is substantial evidence in the record to permit a trier of fact to determine that the stated reason for firing Peterson was pretextual, and that the false report to the employment security department stating that Peterson had quit his job caused him extreme emotional distress. But these acts are not the basis for any of Peterson's claims in this lawsuit. Instead, he relies solely upon his claim to have been disabled by his 'biological clock' and without medical evidence that this is indeed a cognizable medical diagnosis, his claims fail in their entirety.
CONCLUSION
On the evidence in this record and the particular theories of liability presented to the trial court in this case, we conclude that the court did not err by granting the respondents' motion for summary judgment. Accordingly, we affirm.
BECKER and BAKER, JJ., concur.