Opinion
No. 31082-1-II
Filed: March 15, 2005 UNPUBLISHED OPINION
Appeal from Superior Court of Pierce County. Docket No. 01-2-11430-7. Judgment or order under review. Date filed: 10/10/2003. Judge signing: Hon. John a McCarthy.
Counsel for Appellant(s), Julie Reece Demarco, Attorney at Law, 33515 10th Pl S Ste 10, Federal Way, WA 98003-7300.
John David II Terry, Attorney at Law, 33515 10th Pl South Bldg 10, Federal Way, WA 98003-7300.
Counsel for Respondent(s), William a Coats, Attorney at Law, 1201 Pacific Ave Ste 1900, Tacoma, WA 98402-4315.
Rebecca Wahl appeals from a jury verdict in favor of Bethel School District No. 403 on her disability discrimination claim and from the trial court's denial of her request for a judgment notwithstanding the verdict or for a new trial. We affirm.
A. Medical History and Employment
In 1987, doctors diagnosed Wahl with ulcerative colitis/Crohn's disease. Ulcerative colitis and Crohn's disease are two diagnoses that fall under the broad category of inflammatory bowel disease (IBD). In 1989, doctors diagnosed Wahl with intractable ulcerative colitis involving her colon. She had surgery and doctors removed her colon in a procedure known as an ileostomy. In 1995-96, Wahl's ostomy collapsed.
Bethel School District No. 403 (District) hired Rebecca Wahl as an occupational informational specialist (OIS) during the 1992 school year. Wahl's job required her to do a number of duties although not all duties were stated in her job description. At times her position required her to lift, move, organize, and distribute career and learning materials.
At the time of her hiring, Wahl informed the District of her medical condition. In April 1998, Wahl sent a memorandum to Cindy Sorenson with copies to Barbara Ritter, the director for vocational education; Tim Sherry, the principal of Spanaway Lake High School; and Jim Gray. In that letter Wahl referred to her disability in explaining her absences from the building but she did not specifically ask for any accommodations because of her medical condition.
In the summer of 1998, Wahl began a master's program at City University. During the 1998 school year, Wahl worked in three different buildings. Wahl worked at Spanaway Lake High School, Spanaway Junior High, and Cedar Crest Junior High.
Bonnie Kenigson, an assistant principal at Spanaway Lake High School, sent a memo to Wahl on September 3, 1998. The memo discussed absences from the building. It stated that if an OIS needed to leave the building before the end of the contracted day, the person needed to check out with Kenigson and Judy Gillespie, and inform the District.
On September 8, Wahl sent a letter to Greg Rawlins, the executive director for human resources, with copies to Barbara Ritter, Tim Sherry, Bonnie Kenigson, and Steve Brown. Her letter asked for clarification and explanation regarding the accommodations a person with a disability would receive under the Americans with Disability Act (ADA). She stated that she might possibly need a Section 504 (504) accommodation plan. Wahl also stated that when she was not at Spanaway Lake High School, her condition was manageable.
Wahl left the building on September 8, to go to her car. She was away from the building for two minutes, which she recorded on the sign-out log. This occurred after a meeting where Kenigson directed Wahl to check out with her if she left the building. Tim Sherry was also in attendance at the meeting. The following day, Sherry sent a note to Wahl stating that he was considering disciplinary action against Wahl for her September 8 log out.
Wahl met with Sherry to discuss her September 8 actions. At that meeting, Sherry expressed that Wahl did not need to check out if she was leaving to get her medicine. He explained that the only time Wahl needed to follow the check-out procedures was when she was leaving the building for a significant period of time.
On September 11, 1998, Wahl's treating physician sent the District a letter documenting her condition. The letter stated that Wahl suffered from migraine headaches and ulcerative colitis or Crohn's disease. To control both conditions, Wahl took medication. At times, it would be necessary for Wahl to have access to her medications and also to quickly leave school. The doctor stated that physical or emotional stress would exacerbate Wahl's condition. The letter did not mention any restrictions against lifting.
On September 28, Wahl sent another letter to the administration. The letter discussed her goals for Spanaway Lake High School. Under the section entitled 'Job performance and personal goals,' Wahl stated that she used the normal sign-out procedure and that she was requesting a 504 plan based on her physical needs. Ex. 87. Wahl did not state her specific physical needs that the 504 accommodation plan would address.
In October, Wahl's IBD resurfaced and she notified the District of her medical condition. Her doctor's note stated that she was seen for '[e]xacerbation of [u]lcerative [c]olitis.' Ex. 88. Wahl's note to the District did not request any accommodations.
On July 1, 1999, Wahl's doctor sent another correspondence to the District. The letter was virtually identical to the September 11, 1998 letter.
Wahl requested a reduction in her contract for the 1999-2000 school year. She had to complete an internship and asked for .8 of a contract to accommodate the internship. The District granted her request. During the 1999-2000 school year, the District assigned Wahl only to Spanaway Lake High School.
In January 2000, Wahl met with Barbara Ritter and told her she needed to get out of her duties at Spanaway Lake High School. Shortly after speaking with Ritter, the District offered Wahl a transfer to a new position. Wahl accepted a position working with the e-folio or electronic folio project. Wahl began the new job around March 1, and continued in it through the end of the school year.
On February 1, 2000, Wahl sent an e-mail to Ritter referring to her having a '504 on file' sometime that quarter. Clerk's Papers (CP) at 520. On February 2, Wahl sent a letter to the District notifying it of her disability. The letter went to Lynda Walls, the director of special needs for the District. In her letter, Wahl specifically requested a 504 accommodation plan. Wahl did not list specific accommodations she needed in the letter. On the same day, Wahl sent Walls a revised request for accommodation. In that letter, Wahl requested a flexible schedule. She did not want her hours adjusted but wanted the ability to make up at least one to two days of sick leave.
In response to Wahl's letter, Walls met with her and requested that Wahl sign a release of medical information from her doctor. Wahl executed the release but limited the information to only Walls. The release stated that '[n]o other Bethel [School] District employee has authorization to view or discuss health issues.' CP at 521.
After receiving the medical release form, Walls wrote to Wahl's doctor on February 25. Walls requested a 'statement outlining her medical diagnosis, prognosis, restrictions and any suggestions for accommodations, if appropriate.' CP at 532. Wahl's physician responded to the request on March 3. He stated that she had little activity restrictions but could not engage in heavy lifting or carrying. The doctor noted that because Wahl had a colostomy bag, there would be times when she would need to leave her area immediately to empty the bag. The doctor also requested a flex schedule for her. He suggested that Wahl be allowed to come in early and work late on those days that she was not experiencing symptoms. He also requested that Wahl have the ability to schedule doctor's appointments during the work day.
Wahl met with Walls and Terry Pullen on April 10, to discuss possible accommodations. At that meeting, Wahl discussed working with Pam Tennant, a Ph.D. from City University, to develop a proposal of possible accommodations. Walls never received a formal proposal from Wahl.
In April or May, the District offered Wahl a contract for the 2000 school year, which Wahl accepted. Wahl had received her Educational Staff Associate certificate from City University, and she applied for counseling jobs that required the certificate.
Wahl also received a job offer from the Central Kitsap School District for the 2000 school year. She requested a leave of absence from the District so she could work for Central Kitsap. In her request, Wahl admitted that she was able to perform her job duties but that she needed a different location. Because there were no other open OIS positions, she was leaving to take another job outside of the District.
The District stated that it would accept Wahl's leave of absence if she agreed not to pursue any claims that arose out of her employment with the District. It sent Wahl a release agreement for her to sign. Wahl rejected the District's terms, and the District denied Wahl's leave of absence request. Wahl elected to take the job with the Central Kitsap School District. While at Central Kitsap, Wahl never requested an accommodation plan.
In the summer of 2001, Wahl applied for a counseling position with Highline School District, and later accepted that full-time position. While at Highline, Wahl never requested an accommodation plan. During the 2002 school year, Wahl accepted a position with the Clover Park School District. She also did not have a formal accommodation plan with Clover Park.
B. Procedural History
Wahl sued the District on September 4, 2001. In her complaint, she alleged that the District had discriminated against her because of her disability in violation of Section 504 of the Rehabilitation Act of 1973, and the Washington Law Against Discrimination, chapter 49.60 RCW. The complaint also alleged negligent and willful infliction of emotional distress, outrage, defamation, adverse effect on contract status, wage and hour violations, harassment, and stalking.
The District moved for summary judgment. The trial court granted the District's motion in part, and dismissed Wahl's claims for willful infliction of emotional distress, outrage, defamation, adverse effect on contract status, wage and hour violations, harassment, and stalking. But it denied the District's motion as to Wahl's discrimination claims. The District sought reconsideration and the court denied it. The court also denied Wahl's motion for partial summary judgment regarding her reasonable accommodation claim.
Wahl submitted her ER 904 submission on July 16, 2003. Part of the submission contained exhibit 27, which contained the release that the District requested Wahl sign before it would agree to grant her a one-year leave of absence.
Trial began on August 21. Wahl moved to suppress evidence that the District provided accommodations to her. She based her argument on Barbara Ritter's deposition. Before trial, Wahl had sent the District 'Plaintiff's First Set of Interrogatories to Defendant.' Br. of Appellant appendix. In its responses, the District responded that it allowed Wahl to take her medication, visit her doctor, and take sick leave when necessary. In her deposition, Barbara Ritter stated that she 'had never heard of a 504 plan for an adult employee.' CP at 1495. Wahl argued that the information was not disclosed in the interrogatories. The District responded that whether it had provided a written plan was a matter of semantics. The court denied the motion.
After the trial started, the District objected to three pages contained in Wahl's ER 904 submission. The pages, 308-10, were the proposed settlement agreement the District had offered to Wahl. Wahl argued that the documents were part of her ER 904 submission and that the District had failed to timely object. The court allowed the parties to review overnight the timeliness issue. The following day, Wahl reported to the court that '95 is agreeable after pages 308, 309, and 310 are removed. You'll recall yesterday that's the settlement form and you ordered that out anyway.' 3 Report of Proceedings (RP) (August 26, 2003) at 391. But the trial court had not ordered them out, it had reserved ruling until it heard the parties' arguments on the timeliness issue.
Wahl testified that she did not need any accommodation during the 1997-98 school year. She stated that in her September 8 letter to Greg Rawlins she was requesting an explanation of the 504 process. After Rawlins received Wahl's September 8 letter, he met with Wahl and her husband. At that meeting, he told Wahl to have her doctor write a letter to the District. She further stated that she could not remember sitting down and speaking with any administrator from the District regarding her condition between September 1998 and January or February 2000. She also admitted on cross-examination that the first time the District learned about her lifting requirements was in a letter sent by her treating physician to Lynda Walls in March 2000. She further testified that while working for the Central Kitsap School District she did not request a 504 accommodation plan. Wahl had an informal 504 plan while working at the Highline School District. Wahl also stated that while with the District, she never had to take leave without pay nor did she have a loss in income.
Gerean Baginski was Wahl's supervisor at Spanaway Lake High School. She testified that Wahl informed her that Wahl had Crohn's disease. Baginski supervised Wahl for approximately three years. During that time, the two never discussed a 504 plan. She also testified that Wahl was able to perform all of her job duties. Wahl never discussed needing an accommodation for her disability.
Greg Rawlins testified that if a disabled employee needed an accommodation, the employee would talk to the administration at her building. Rawlins stated that the ability to use sick leave and take medication when necessary was a contractual right of an employee. He also testified that he did not understand Wahl's September 8, 1998 letter to be a specific request for a 504 plan.
During cross-examination, the District read from Wahl's doctor's letter dated September 11, 1998. The District then asked Rawlins if there were problems with teachers having access to medicine. He replied, '[n]one.' 2 RP (Aug. 25, 2003) at 245. Rawlins also noted that teachers could leave the building if necessary. The District then asked whether a teacher needed a written plan in order to leave in an emergency situation. Again, Rawlins answered, '[n]o.' 2 RP at 245. Rawlins testified that Wahl did not need a written plan to have access to her medicine or to leave the building in emergency situations.
Lynda Walls testified that she became the 504 coordinator during the 1998 school year. At the time she took the position, there was no procedure in place for addressing the 504 needs for District employees. Walls further testified that human resources referred people who needed accommodations to her. She also noted that Wahl's September 8 letter would have triggered the accommodation process. Walls stated she did not receive any of Wahl's letters to the District. After Lynda Walls received information from Wahl's doctor, Wahl contacted her and requested that Wall delay any accommodation plan until August 2000. Walls never provided Wahl with an accommodation plan because Wahl left the District.
On cross-examination, Walls testified that having access to medicine would not require an accommodation plan. She also stated that being able to leave the building in case of emergency would not require an accommodation plan. The District asked these questions in reference to the accommodations Wahl's doctor requested for her in his September 11, 1998 letter.
Bonnie Kenigson McGuire became an assistant principal at Spanaway Lake High School in August 1997. McGuire became evaluator of the vocational area the summer before the 1998 school year. As part of her duties, McGuire restructured the vocational area, a move which directly affected Wahl. McGuire stated that she was unaware that Wahl had a disability and she was also unaware that Wahl was not supposed to lift. She further testified that it was okay for teachers to schedule doctor's appointments during the day and leave the building in an emergency.
Barbara Ritter, the director for vocational education, testified for the District. Ritter was one of Wahl's supervisors. She testified that during the 1997 school year, Wahl had never discussed any limitations that affected her employment. After receiving Wahl's April 1, 1998 letter, Ritter asked Wahl if she needed anything. Wahl gave Ritter the clear impression that she did not like to discuss her disability. Wahl always responded to Ritter's questions concerning her health that 'everything in her job was great.' RP (Ritter) at 13. Ritter further testified that during the 1998-99 school year, she was unaware of any accommodations that Wahl needed in order to perform her job.
Tim Sherry was the principal at Spanaway Lake High School from 1996 to 2002. During the 1997-1998 school year Sherry evaluated Wahl. Sherry stated he was unaware of any medical condition that Wahl had. Sherry observed that Wahl was able to perform all aspects of her job. He never noticed any physical or mental condition that kept her from doing her job. Sherry further testified that there were no limitations placed on Wahl's ability to use the restroom, leave work early in the case of an emergency, or schedule doctor's appointments. The school regularly made those types of accommodations for teachers. Sherry also noted that the District did not grant leave so a person can take a comparable job outside of the District.
Georgia Dewhurst was the principal of Lakes High School in the Clover Park School District. The Clover Park School District hired Wahl as a counselor during the summer of 2002. Although Dewhurst was aware that Wahl suffered from Crohn's disease, she never noticed any other emotional or medical condition that affected Wahl's ability to perform her job. Wahl had requested a 504 accommodation plan but the school district had not yet completed the plan. Wahl requested flex time as part of the accommodation plan. The Clover Park School District denied that part of Wahl's request because the district did not offer flex time.
Wahl did not object to any of the jury instructions. The jury found that the District did not discriminate against Wahl by failing to reasonably accommodate her disability.
On September 19, 2003, Wahl moved for judgment notwithstanding the verdict or in the alternative, a new trial. The trial court denied Wahl's motion. She then filed her notice of appeal. In her statement of arrangements, Wahl identified 20 issues for appeal. The District moved for an order requiring plaintiff/appellant to pay for additional parts of the verbatim report of proceedings. The District made the motion because Wahl failed to designate her own testimony as well as the testimony of other key witnesses. The trial court granted the District's motion.
ANALYSIS I. Definition of a Disability
The Rehabilitation Act of 1973 prohibits discrimination against an 'otherwise qualified individual with a disability.' 29 U.S.C. sec. 794(a). A private right of action is available to qualified individuals subjected to discrimination by the federal government or a program or activity that receives federal financial assistance. 29 U.S.C. sec. 794a. A plaintiff must establish a prima facie case of employment discrimination under the Rehabilitation Act in order to proceed in court. McGeshick v. Principi, 357 F.3d 1146, 1150 (10th Cir. 2004). The four elements of a prima facie claim are: (1) the plaintiff is disabled under the Act; (2) he would be 'otherwise qualified' to participate in the program; (3) the program receives federal financial assistance; and (4) the program has discriminated against the plaintiff. See Schrader v. Fred A. Ray, M.D., P.C., 296 F.3d 968, 971 (10th Cir. 2002).
In 1992, Congress amended the Rehabilitation Act so that in employment discrimination cases alleging violations of the Act, the standards applied under Title I of the Americans with Disabilities Act (ADA) are used to determine violations under the Act. 29 U.S.C. sec. 794(d); McGeshick, 357 F.3d at 1150. That amendment also expanded the term 'disability' to include the definition found in the ADA. McGeshick, 357 F.3d at 1150. The ADA defines 'disability' as the following: (1) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (2) a record of such an impairment; or (3) being regarded as having such impairment. 42 U.S.C. sec. 12102(2).
Wahl argues her disability affects major life activities. The United States Supreme Court has held that in order to prove that a disability substantially limits a major life activity, 'an individual must have an impairment that prevents or severely restricts the individual from doing activities that are of central importance to most people's daily lives.' Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184, 198, 122 S. Ct. 681, 151 L. Ed. 2d 615 (2002). The impact of the impairment must 'be permanent or long term.' Toyota Motor Mfg., 534 U.S. at 198. In evaluating whether a claimant is disabled from working, the court considers 'whether the claimant is unable to perform the variety of tasks central to most people's daily lives, not whether the claimant is unable to perform the tasks associated with her specific job.' Toyota Motor Mfg., 534 U.S. at 200-01.
In Cotter v. Ajilon Servs., Inc., 287 F.3d 593 (6th Cir. 2002), the Sixth Circuit dealt with a similar case. In 1993, a doctor diagnosed Cotter with ulcerative colitis and recommended that Cotter limit overtime work. Cotter, 287 F.3d at 596. After his supervisor learned of the doctor's recommendation, he removed Cotter from overtime work. Cotter, 287 F.3d at 596. In November 1994, under the threat of termination, Cotter began working 16 to 20 hours per week in overtime. Cotter, 287 F.3d at 596. In April 1995, Cotter collapsed and was hospitalized because his colitis flared up. Cotter, 287 F.3d at 596. Cotter returned from leave in June 1995, but he experienced another flare-up in 1996. Cotter, 287 F.3d at 596. On February 3, 1997, Ajilon returned Cotter to full-time pay, but on February 28, terminated Cotter for lack of work. Cotter, 287 F.3d at 596.
In his suit against Ajilon, Cotter claimed that he was disabled. Cotter, 287 F.3d at 597. A district court granted summary judgment in Ajilon's favor. Cotter, 287 F.3d at 597. In determining whether Cotter's colitis was disabling, the Sixth Circuit considered three factors: (1) whether the colitis constituted a physical impairment; (2) if so, whether any life activity that colitis purportedly curtailed constituted a major life activity under the ADA; and (3) if so, whether the colitis substantially limited that major life activity. Cotter, 287 F.3d at 598 (citing Bragdon v. Abbott, 524 U.S. 624, 631, 118 S. Ct. 2196, 141 L. Ed. 2d 540 (1998)).
Applying these factors to the present case, we conclude that the evidence supports the finding that Wahl's disability did not affect a major life activity. In Wahl's motion for partial summary judgment, she claimed that her disability affected major life activities such as the ability to sleep, eat, care for one's self, and use the bathroom. But Wahl presented no evidence 'from which a reasonable jury could infer that [her] digestive ailment substantially limit[ed] these major life activities.' Cotter, 287 F.3d at 598. Wahl had to provide evidence that her disability kept her from performing 'tasks central to most people's daily lives.' Toyota Motor Mfg., 534 U.S. at 200-01. She failed to do so.
In Toyota Motor Mfg., the U.S. Supreme Court found that even where a medical condition caused the plaintiff to stop doing certain things she enjoyed or to limit those activities, the effect on those activities did not amount to such a severe restriction on tasks of central importance to most people's lives to establish a disability as a matter of law. Toyota Motor Mfg., 534 U.S. 202. That is also true of the present case. The identified tasks affected by Wahl's gastrointestinal disease did not affect her such that the disease is a disability under federal law.
Wahl places great reliance on Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128 (9th Cir. 2001), cert. denied, 535 U.S. 1011 (2002), to support her argument that the District failed to engage in the interactive process to determine appropriate accommodation. In Humphrey, a psychiatrist diagnosed the plaintiff with obsessive compulsive disorder. Humphrey, 239 F.3d at 1130. Memorial Hospitals provided an accommodation for Humphrey that allowed her a flexible start-time to begin work. Humphrey, 239 F.3d at 1131. Memorial Hospital later fired Humphrey for tardiness and absenteeism. Humphrey, 239 F.3d at 1133. The court noted that once an employer becomes aware of an employee's need for accommodation, the employer has a mandatory obligation under the ADA to engage in an interactive process with the employee to determine appropriate accommodations. Humphrey, 239 F.3d at 1137. But Wahl's condition was not a disability under federal law. Thus, the District had no duty to begin the process.
Also, there was substantial evidence that Wahl's colitis did not substantially limit her ability to work. After leaving the District, she worked at the Central Kitsap, Highline, and Clover Park School districts without an accommodation plan.
Further, none of the jury instructions provided a definition for disability under the federal laws. Wahl did not object to the trial court's jury instructions. As such, she cannot now argue that the trial court erred by failing to apply federal law. RAP 2.5(a).
II. Reasonable Accommodation
Wahl next asserts that the District violated the Washington Law Against Discrimination (WLAD) by failing to accommodate her. In reviewing this issue, we first address the applicable law under the WLAD as it applies to failure-to-accommodate claims. McClarty v. Totem Elec., 119 Wn. App. 453, 464, 81 P.3d 901 (2003), review granted, 152 Wn.2d 1011 (2004). Our legislature enacted the WLAD to prevent discrimination based on age, race, sex, and disability. RCW 49.60.010. The WLAD prohibits an employer from discharging or barring any person from employment on the basis of, among other things, 'the presence of any sensory, mental, or physical disability.' RCW 49.60.180.
Washington courts have applied a three-part burden shifting scheme from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973), to WLAD claims. Under McDonnell Douglas, a plaintiff must first establish a prima facie case. Allison v. Housing Auth. of City of Seattle, 118 Wn.2d 79, 88, 821 P.2d 34 (1991). The burden of production then shifts to the defendant to provide a nondiscriminatory reason for its employment decision. Allison, 118 Wn.2d at 88-89. The plaintiff may then attempt to prove that the nondiscriminatory reason the defendant offered is actually pretext. Allison, 118 Wn.2d at 89.
In order to establish a prima facie case for disability discrimination for a failure to reasonably accommodate, Wahl must prove: (1) she had a sensory, mental, or physical abnormality that substantially limited her ability to perform her job; (2) she was qualified to perform the essential functions of her job; (3) she provided her employer with notice of the abnormality and any accompanying substantial limitations; and (4) after receiving notice, the employer failed to affirmatively adopt measures available to the employer and medically necessary to accommodate the abnormality. Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 192-93, 23 P.3d 440 (2001).
An employer's duty to reasonably accommodate an employee does not arise until the employer becomes aware of the employee's disability and physical limitations. Goodman v. Boeing Co., 127 Wn.2d 401, 408, 899 P.2d 1265 (1995). Further, assuming that Wahl's medical condition was a disability under Washington law, a plaintiff's failure to accommodate claim requires proof that the employee's abnormality substantially limited her ability to do the job and that the employer was aware of this limitation. See Hill, 144 Wn.2d at 192-93. There is overwhelming evidence that Wahl's medical condition did not limit her ability to do the job and that the District had no notice of limitations (we discuss this later in more detail). Also, there was substantial evidence that the District responded to Wahl's requests from assuring her of access to her medications; the ability to leave her job in emergencies; transferring her to a new position; and in 2000, beginning the accommodation process.
In Wahl's first letter to the District she stated that she had a disability. She did not state the name of the disability nor any limitations on her ability to perform her job. In fact, Wahl's letter stated that her disability did not impede her ability to do her job. The April 1998 letter therefore does not qualify as notice to the District triggering it to respond.
The second alleged notification to the District occurred in a letter dated September 8. The letter asked for clarification regarding accommodations and also mentioned the possibility that Wahl needed a 504 accommodation. But it was not a clear request for a 504 accommodation plan.
On September 11, the District received a letter from Wahl's treating physician. In that letter, her doctor stated that Wahl suffered from two conditions: migraine headaches and ulcerative colitis or Crohn's disease. The doctor stated that Wahl needed immediate access to her medications and the ability to leave work quickly when colitis symptoms were exacerbated. He also noted that stress was a condition that exacerbated both of Wahl's medical conditions. The doctor did not specifically call the above items accommodations but as the testimony reflects, the ability to take medication, use the restroom, and leave the building when an emergency arose were employee contractual rights. Thus, there was no need for a written accommodation plan in response to the physician's letter.
Wahl's September 28 letter stated that she was requesting a 504 plan. The letter suggests that Wahl was not officially requesting a 504 plan but was instead informing the District of her plans to request a 504 accommodation plan.
The District received another letter from Wahl's physician on July 1, 1999. The letter was almost identical to the September 1998 letter from her doctor. It did not provide any new information regarding Wahl's condition or specifically requesting accommodation.
On February 2, 2000, Wahl did formally request a 504 accommodation plan. She asked for a flexible schedule that would allow her to make up sick leave days. She also signed an authorization to release medical information to Lynda Walls on February 14. As a result, Lynda Walls wrote to Wahl's treating physician asking her to suggest accommodations for Wahl.
The evidence shows that after receiving formal notice of Wahl's disability, the District attempted to determine whether an accommodation plan was necessary. The District already provided by contract that employees could regularly leave their area to use the restroom and employees could schedule doctors' appointments during the work day. Since these rights already existed, there was no need for a 504 accommodation plan.
Once an employee determines that she needs accommodation for a disability, the employee must provide a medical nexus between the disability and the need for accommodation. Riehl v. Foodmaker, Inc., 152 Wn.2d 138, 147, 94 P.3d 930 (2004). Where an accommodation is not medically necessary, 'it is unreasonable to require an employer to provide accommodation.' Riehl, 125 Wn.2d at 147.
Here, Wahl failed to provide a nexus between her disability and the need for accommodation beyond what the District provided by contract. It was only in the doctor's March 2000 letter that the District learned that Wahl was not to engage in heavy lifting. In response, Walls and Pullen met with Wahl to discuss the necessary accommodations. Wahl indicated that she would work with Pam Tennant to develop an accommodation proposal but she failed to provide one to the District or to further pursue her request. She left the District before any accommodation plan was in place. Thus, the evidence supports the jury's verdict that the District did not violate the WLAD by failing to accommodate Wahl's disability.
III. Motion for Summary Judgment
Wahl argues that the trial court erred by not granting her motion for summary judgment. We do not reach this issue because Wahl has also challenged the trial court's order denying her motion for a judgment notwithstanding the verdict (NOV). Our review of the trial court's order denying her judgment NOV overrides the standard of review for summary judgment. If there was substantial evidence for the jury's verdict against the plaintiff, then obviously there was a genuine issue of material fact. Moore v. Wayman, 85 Wn. App. 710, 719, 934 P.2d 707, review denied, 133 Wn.2d 1019 (1997).
IV. Motion to Suppress Evidence
Wahl asserts that the trial court erred when it denied her motion to suppress evidence that the District had accommodated her. The District responds that the trial court did not err by denying the motion. We agree.
The issue Wahl raised is one of semantics. Barbara Ritter provided in her deposition that she did not know that 504 accommodations were available for employees. But the District responded that it allowed accommodations or changes to be made for Wahl. That Ritter was unaware of 504 accommodations for employees does not make the fact that the District provided accommodations, even if they were not part of a designated 504 plan, false. Wahl's doctor stated that she needed access to her medications and the ability to leave for doctor's appointments. The District provided those accommodations to her. Thus, the court did not err by denying Wahl's motion to suppress evidence.
V. Settlement Agreement
Wahl contends that the trial court erred by not admitting the release the District offered when she requested a one-year leave of absence from the District. Under ER 408, evidence of a settlement agreement is not admissible when admitted to prove liability. Thus, the trial court correctly excluded the release from the evidence.
Evidence that contains an offer of valuable consideration to settle a claim is not admissible to prove liability for the claim or its amount. Fetty v. Wenger, 110 Wn. App. 598, 602, 36 P.3d 1123 (2001), review denied, 147 Wn.2d 1011 (2002). ER 408 states in part: '[e]vidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount.' Because Wahl's purpose in offering the release form was to show the District's liability for failing to provide adequate accommodations, the trial court did not err by excluding it.
Additionally, an issue exists as to whether Wahl's argument is correctly before this court. During trial, Wahl agreed with the District's counsel to remove pages 308-10 of exhibit 27. Those pages contained the release agreement. Since Wahl had the pages removed from the evidence, she waived any objection to the document not being admitted as evidence.
VI. Order to Supplement Record
Wahl argues that the trial court erred by not denying the District's motion to supplement the record. We disagree.
The Rules of Appellate Procedure state in part:
If a party seeking review arranges for less than all of the verbatim report of proceedings, the party should include in the statement of arrangements a statement of the issues the party intends to present on review. . . . If the party seeking review refuses to provide the additional parts of the verbatim report of proceedings, the party seeking the additional parts may provide them at the party's own expense or apply to the trial court for an order requiring the party seeking review to pay for the additional parts of the verbatim report of proceedings.
RAP 9.2(c).
In her statement of arrangements, Wahl identified 20 issues for appeal. Yet she failed to designate the testimony of key witnesses, including her own. It is within the trial court's discretion to order that the record be supplemented. Jackson v. Wash. State Criminal Justice Training Comm'n, 43 Wn. App. 827, 831, 720 P.2d 457 (1986). The trial court did not err by ordering Wahl to supplement the record.
VII. Judgment Notwithstanding the Verdict (NOV)
A trial court should only grant a motion for judgment NOV if it concludes, as a matter of law, that there is no evidence or reasonable inference to support a verdict in favor of a nonmoving party. Baldwin v. Sisters of Providence in Wash., Inc., 112 Wn.2d 127, 132, 769 P.2d 298 (1989); CR 50. The trial court must accept the truth of the nonmoving party's evidence and must view all reasonable inferences from it in the light most favorable to the nonmoving party. Douglas v. Freeman, 117 Wn.2d 242, 247, 814 P.2d 1160 (1991). Where competent evidence or reasonable inferences exist on which reasonable minds might reach conclusions consistent with the verdict, the question is for the jury. Lockwood v. AC S, Inc., 109 Wn.2d 235, 243, 744 P.2d 605 (1987). We review a trial court's decision to deny a motion for a judgment NOV by applying the same standard as the trial court. Indus. Indem. Co. of the N.W., Inc. v. Kallevig, 114 Wn.2d 907, 915, 792 P.2d 520 (1990).
A. The Trial
Wahl brought her motion for judgment NOV or, in the alternative, for a new trial under CR 50(b) and CR 59(a)(7). Civil Rule 50(b) allows a party to bring a motion for judgment as a matter of law within 10 days of entry of the judgment. The party can also join a motion for a new trial under CR 59 to its CR 50(b) motion. CR 50(b). Civil Rule 59(a)(7) provides that a trial court may vacate and grant a new trial where 'there is no evidence or reasonable inference from the evidence to justify the verdict or the decision, or that it is contrary to law.' Overwhelming evidence supports the jury's verdict.
1. Federal Law
Under federal law, an employer must engage in the interactive process when an employee or employee's representative provides notice of the employer's disability and the request for accommodation. Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1114 (9th Cir. 2000), vacated on other grounds, 535 U.S. 391, 122 S. Ct. 1516, 152 L. Ed. 2d 589 (2002). The evidence shows that the District did not receive notice of Wahl's disability and a request for accommodation until February 2, 2000. Once it received that notice, it entered into the interactive process with Wahl. But the 504 coordinator never finished the process because Wahl left the District.
And as we previously discussed, Wahl failed to meet the federal standard defining her condition as a disability. Additionally, the District already provided by contract some of the items Wahl's doctor requested as 'accommodations.' Substantial evidence supported the jury's verdict on Wahl's federal claim.
2. State Law
An employee satisfies the notice element of a state law disability claim when the employee tells the employer that she has a disability requiring accommodation. Stevens v. City of Centralia, 86 Wn. App. 145, 156, 936 P.2d 1141, review granted, 133 Wn.2d 1001 (1997) (citing Goodman, 127 Wn.2d at 408). Once the employee provides notice, the employer has a duty to accommodate the disability. Goodman, 127 Wn.2d at 408. The evidence here reveals that Wahl failed to establish her state claim.
Wahl contends that she is entitled to judgment NOV under the holding in Sommer v. Dep't of Soc. Health Servs., 104 Wn. App. 160, 15 P.3d 664, review denied, 144 Wn.2d 1007 (2001). Sommer is not analogous to this case. In Sommer, the Department of Social and Health Services received notice that Sommer had a disability. Sommer, 104 Wn. App. at 174. The letters from Sommer's doctor specifically stated that he was unable to perform essential functions of his job and detailed the accommodations that he required. Sommer, 104 Wn. App. at 164-67. Division One held that substantial evidence did not support DSHS's argument that it lacked notice of a disability. Sommer, 104 Wn. App. at 174.
The present case involves one of interpretation. Wahl believes that her April 1998 letter gave the District notice of her disability. The District argues that the February 2, 2000 letter gave it actual notice of Wahl's disability and the possible need for accommodation. As previously stated, the employee has to provide the employer with notice of a disability that requires accommodation before the interactive process is triggered. Goodman, 127 Wn.2d at 408. Although Wahl sent the District several letters discussing her disability, only the February 2 letter clearly asked for accommodation. Her testimony was that she was able to perform the essential functions of her job. The testimony of her supervisors supported Wahl's trial testimony. All of her supervisors stated that Wahl performed her job duties. In reviewing the denial of a judgment NOV, we must evaluate all reasonable inferences in the light most favorable to the nonmoving party. Douglas, 117 Wn.2d at 247. We conclude that the District did not receive proper notice of Wahl's disability until February 2000.
B. Retaliation Claim
Wahl contends that the trial court erred by not directing a verdict on the issue of retaliation. But Wahl fails to show in the record where she requested a directed verdict and was denied. RAP 10.3(a)(5) requires that a party present an argument in support of the issues for review, supported by citations to legal authority and to the relevant portions of the record. Wahl failed to follow this rule but regardless she failed to establish a prima facie case of retaliation.
The WLAD prohibits retaliation against an employee that opposed practices forbidden by law. RCW 49.60.210(1). In order to establish a prima facie case of retaliation under the WLAD, a plaintiff must show: (1) she engaged in statutorily protected activity; (2) the employer made an adverse employment action; and (3) there is a causal link between the employee's activity and the employer's adverse employment action. Delahunty v. Cahoon, 66 Wn. App. 829, 839, 832 P.2d 1378 (1992).
Wahl relies on her September 8, 1998 letter for this claim. By asking for a 504 accommodation plan, Wahl took part in a statutorily protected activity. But she did not request an accommodation plan until her February 2, 2000 letter. Because the September 8, 1998 letter is the only activity Wahl refers to in her brief, she cannot establish a prima facie case of retaliation. Further, she suffered no adverse employment action. She consistently received positive job evaluations and when she resigned, the District had already offered her a contract for the following year. Also, she never lost any compensation for the time she took off. Thus, the evidence supported the jury's finding that the District did not retaliate.
Affirmed.
A majority of the panel having determined that this opinion will not be printed in the Washington Appellate Reports, but will be filed for public record pursuant to RCW 2.06.040, it is so ordered.
HOUGHTON, P.J. and ARMSTRONG, J., Concur.