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UU; T OF APPEALS
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20 ri APR 29 PM 8.: 145
IN THE COURT OF APPEALS OF THE STATE OF WASHINGT
DIVISION II
PETER and RACHEL ATKINSON, husband No. 44326 -1 - II
and wife, and the marital community
composed thereof,
Appellants,
v.
LES SCHWAB TIRE CENTERS OF UNPUBLISHED OPINION
WASHINGTON, INC., a Washington.
corporation,
Respondent,
CIGNA HEALTHCARE, INC., a foreign
corporation,
Defendant.
JOHANSON, J. — Peter Atkinson sued his employer, Les Schwab Tire Centers of
Washington, Inc. ( Les Schwab), for disability discrimination after the company terminated his
employment. Atkinson appeals the trial court' s grant of summary dismissal of his claims. He
argues that he produced evidence sufficient to establish prima facie discrimination claims for ( 1)
disparate treatment, ( 2) hostile work environment, ( 3) unlawful retaliation, and ( 4) failure to
provide reasonable accommodation. He further argues that the trial court abused its discretion in
denying his motion, to impose sanctions and that the trial court erred in striking certain
1
Peter and Rachael Atkinson brought suit against Les Schwab as a marital community; we use
Atkinson" toidentify Peter Atkinson.
No. 44326 -1 - II
declarations. Viewing the record in a light most favorable to. Atkinson as the nonmoving party,
we hold that. Atkinson failed to carry the necessary burden for each of his claims and, thus, we
affirm the trial court' s summary judgment order in favor of Les Schwab.
FACTS
2
Atkinson has suffered from complex hereditary migraine headaches since childhood.
These migraine headaches cause pain, nausea, fatigue, and cognitive functioning difficulty.
Shortly after his high school graduation in 1996, Atkinson accepted a position with Les Schwab
in the " sales and service" department located in Longview.
In 2003, Rory Cox, store manager of Les Schwab' s Chehalis location, hired Atkinson to
Rory3
serve as his second assistant manager. During his interview, Atkinson informed that he
experienced chronic migraines. Atkinson' s promotion to second assistant manager meant that he
had additional responsibilities requiring greater flexibility and longer hours, typically 70 to 80 a
week. Atkinson claimed that the additional hours contributed to the frequency and severity of
his migraines.
In April 2006, Rory promoted Atkinson to first assistant manager of the Chehalis
location. Accepting the role of first assistant manager meant that Atkinson' s schedule became
more demanding because he had to perform a central role in the day -to -day operations of the
branch. According to Rory, Atkinson' s decrease in performance and lack of motivation became
increasingly evident as his work load grew.
2"
Complex hereditary migraine headaches" and " intractable migraine headaches" appear to be
used interchangeably. The record does not clearly indicate which, if either, is an actual diagnosis
or simply medical terminology used to describe migraines that do not respond effectively to
treatment.
3 The first name of Rory Cox is used for clarity and to distinguish him from Doug Cox.
2
No. 44326 -1 - II
Atkinson believed that he could do his job as first assistant manager without concern for
his migraine symptoms approximately 80 to 90 percent of the time. The remaining time, when
he felt that his condition was too much to bear, Atkinson would either miss work, require time
sitting in the break room, or, on rare occasions, leave for the remainder of the day. Other times
Atkinson working, but would do so at a " lesser
during migraine symptoms, would continue
capacity" because of his discomfort.
Shortly after Atkinson was promoted to first assistant manager, his persistent migraines
became the focal point of a conversation between Atkinson, Rory, and Mike Palin. 4 Atkinson
told Atkinson that "[ he] to get [ his] migraines taken care of or ... look
claimed that Rory need[ s]
for work elsewhere." 3 Clerk' s Papers ( CP) at 446. This exchange prompted Atkinson to draft
Britton5
an e -mail to Ray Compton and John titled " Career Advice." 1 CP at 134. In the body of
the e -mail, Atkinson stated that "[ he has] now been advised to explore other career options,
whether something different in the company or different altogether, if [his] migraine condition
doesn' t improve." 1 CP at 134.
The following days Atkinson received a call from Britton assuring him -hat his medical
t
condition would not affect his mobility within the company. Britton advised Atkinson to
continue to move forward in his capacity as assistant manager. The e -mail was apparently
forwarded to Doug Cox, one of the zone managers for Les Schwab, who told Rory that
Atkinson' s migraines " were a medical issue [ and] they were not to be brought up in the context
4 Palin became the new second assistant manager when Atkinson was promoted from that role in
2006.
5
Compton was the district manager at the time of the 2006 e -mail. The record is not clear as to
what role Britton occupied for Les Schwab.
3
No. 44326 -1 - II
of the job." 3 CP at 525. Atkinson believed the e -mail began the souring of his relationship with
Rory and that "[ Rory] wanted to get back at [ Atkinson] for that" because Atkinson " went, in a
sense, above [ Rory' s] head to people in [ the] main office." 1 CP at 127.
In late 2007, Atkinson applied to the " manager' s list," which allowed him to be
considered for a store manager position by appearing and interviewing in front of a management
review board. 1 CP at 87. Desiring the endorsement of a current manager before applying for
the list, Atkinson sought and obtained the support of Rory, among others.
In January 2008, Atkinson interviewed before the management review panel. Following
that interview, Atkinson was not added to the manager' s list. Shortly thereafter, two members of
the review board, Gary Wanderschied and George Saddler, met with Atkinson and Rory to
discuss portions of Atkinson' s interview. Specifically, they discussed negative feedback from
the peer review portion, the need for increased physical output and improved communication
from Atkinson, in addition to the fact that his crew members accused him of disappearing from
time to time or " hiding." 2 CP at 199.
Over the course of the next year, Atkinson received a series of poor performance reviews.
In December 2008, Atkinson had a meeting with Rory during which Rory conveyed certain
performance concerns along with those expressed by Atkinson' s crew personnel. But Atkinson
believed that the difficulties he experienced towards the end of his employment with Les Schwab
emerged as a result of his 2006 e -mail and the subsequent deterioration of his relationship with
Rory.
Atkinson maintained that Rory often undermined his authority to other managers and
would " work things in a way that got the crew mad at [ him]." 1 CP at 128. Atkinson
complained . that Rory would tell other employees that Atkinson was " hiding out" in the
4
No. 44326 -1 - II
bathroom and that he " didn' t want to be ... part of the work" when he was actually vomiting
from illness. 3 CP at 490, 493. Atkinson stated that a former co- worker mentioned that Rory
just had it out for [ Atkinson]." 3 CP at 493. Atkinson also complained that Palin and other
6
members of the crew made insulting comments that belittled his condition. Atkinson claimed
that his work environment became uncomfortable because of the apparent animosity the other
managers developed toward his condition.
In January 2009, Rory e- mailed a list of concerns regarding Atkinson' s performance to
Greg L' Hommedieu, one of Les Schwab' s area managers. L' Hommedieu and Rory met with
Atkinson following the e -mail exchange to discuss where his performance as assistant manager
was lacking. L' Hommedieu reportedly warned Atkinson that failure to improve performance
promptly would result in his removal as assistant manager. In March 2009, when Atkinson' s
performance had not improved satisfactorily, Atkinson was " removed from his position" 7 as
assistant manager. 2 CP at 192.
Following his removal as assistant manager, Atkinson applied for and began to receive
disability benefits through the Social Security Administration ( SSA). Atkinson also met with Dr.
Elena Robinson after his termination. Dr. Robinson concluded that Atkinson was unable to work
in any capacity, including light duty, and that Atkinson could not perform the essential functions
of his job.
6
Atkinson stated that Palin disparaged him by referring to his migraines as " another little
headache." 1 CP at 97.
7 This process involves removal from a managerial role but does not fully terminate employment
until 30 days elapse.
No. 44326 -1 - II
Atkinson contended that he could have been more effective in his role as first assistant
manager had Les Schwab allowed him certain accommodations. In Atkinson' s view, he would
have been able to continue working as first assistant manager if his hours had been reduced, if
consistent, uninterrupted lunches were scheduled, and if he were provided the flexibility to take
8
breaks whenever he needed reprieve from his migraines. But according to Rory, the Chehalis
store' s fast pace and high sales volume meant that the management team' s presence was
essential and that they were unable to enjoy the luxury of regular, uninterrupted breaks and short
hours.
Atkinson filed a complaint against Les Schwab under the Washington Law Against
9
Discrimination ( WLAD) for disparate treatment, failure to provide reasonable accommodation,
and unlawful retaliation. Les Schwab moved for summary judgment on all claims. The trial
court found no genuine issue as to any material fact and granted Les Schwab' s motion for
summary judgment. Atkinson appeals.
ANALYSIS
We review summary judgment orders de novo, viewing the facts in the light most
favorable to the nonmoving party. Vallandigham v. Clover Park Sch. Dist. No. 400, 154 Wn.2d
16, 26, 109 P. 3d 805 ( 2005). Trial courts properly grant summary judgment where the pleadings
and affidavits show no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. CR 56( c). To defeat an employer' s motion for summary judgment
8 When asked whether he ever told Rory that a short lunch break would help alleviate some of
the pain during migraines, Atkinson said, " I believe I did ... three or four times" and that he
recalls being told that he should work through it; but Atkinson cannot remember when he
brought this up. 3 CP at 446.
9 Ch. 49. 60 RCW.
6
No. 44326 -1 - II
in an employment discrimination case, an employee must do more than express an opinion or
make conclusory statements; the employee must establish specific and material facts to support
each element of a prima facie case. Marquis v. City ofSpokane, 130 Wn.2d 97, 105, 922 P. 2d 43
1996).
DISPARATE TREATMENT
Atkinson contends that summary judgment in favor of Les Schwab was improper because
he established a prima facie disparate treatment claim. Specifically, he argues that he has direct
evidence of discriminatory intent or, in the alternative, that he meets the McDonnell Douglas'°
burden- shifting test. Viewing the evidence in a light most favorable to Atkinson, we hold that
Atkinson failed to produce sufficient evidence that discriminatory intent was a substantial factor
in his termination under the direct evidence test. We hold further that Atkinson failed to produce
sufficient evidence of pretext under the McDonnell .Douglas test Therefore, the trial court
properly granted Les Schwab summary judgment on Atkinson' s disparate treatment claims.
A. RULES OF LAW
Disparate treatment occurs when an employer treats some people less favorably than
11
others because of race, color, religion, sex, or other protected status. Hegwine v. Longview
Fibre Co., 162 Wn.2d 340, 354 n.7, 172 P. 3d 688 ( 2007). Disability discrimination can give rise
to a disparate treatment claim. McClarty v. Totem Elec., 157 Wn.2d 214, 222, 137 P. 3d 844
to McDonnell Douglas Corp. v. Green, 411 U. S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 ( 1973).
11
Disability is a protected status. RCW 49. 60. 180( 3).
7
No. 44326 -1 - II
12
2006). A plaintiff may establish a prima facie case by either offering direct evidence of an
employer' s discriminatory intent, or, when a plaintiff lacks direct evidence, by satisfying the
McDonnell Douglas burden -shifting test that gives rise to an inference of discrimination.
Kastanis v. Educ. Emps. Credit Union, 122 Wn.2d 483, 491, 859 P. 2d 26, 865 P. 2d 507 ( 1993).
B. DIRECT EVIDENCE TEST
Under the direct evidence test, a plaintiff can establish a prima facie case by providing
direct evidence that the defendant employer acted with a discriminatory motive in taking an
adverse employment action against an employee with a protected status. Kastanis, 122 Wn.2d at
491. A plaintiff must also establish that the discriminatory motivation was a "' significant or
substantial factor in an employment decision. ' Kastanis, 122 Wn.2d at 491 ( quoting Buckley v.
Hosp. Corp. ofAm., Inc., 758 F.2d 1525, 1530 ( 11th Cir. 1985)).
We generally consider an employer' s discriminatory remarks to be direct evidence of
discrimination. See Johnson v. Express Rent & Own, Inc., 113 Wn. App. 858, 862, 56 P. 3d 567
2002) ( reversing summary judgment for employer based on supervisor' s ageist comments that
plaintiff did not fit company' s image -
of a
" youthful, fit - GQ'
` looking mold").
Here, to satisfy the direct evidence test, Atkinson must demonstrate that Les Schwab
acted with a discriminatory motive, and that the discriminatory motive was a significant or
substantial factor in taking an adverse employment action against him based on his protected
Atkinson easily the employment action He was
disability status. satisfies adverse prong.
discharged from his position, which is the ultimate adverse employment action. In addition,
12
McClarty, Hill v. BCTI Income Fund - , 144 Wn.2d 172, 23 P. 3d 440 ( 2001), and Davis v.
I
Microsoft Corp., 149 Wn.2d 521, 70 P. 3d 126 ( 2003), utilize a definition of "disability" that has
since been superseded by statute. RCW 49. 60. 040( 7). But these cases remain good law for the
propositions for which we cite them.
8
No. 44326 -1 - II
Atkinson presented direct evidence of discriminatory motive in Rory' s comment that "[ he]
need[ s] to get [ his] migraines under control or find work elsewhere." 1 CP at 84.
Although a significant amount of time passed between Rory' s comment and Atkinson' s
termination, we assume, without deciding, that a statement of this nature constitutes direct
evidence of discrimination when viewed in a light most favorable to Atkinson. But even
assuming that Atkinson established that Rory' s comment was direct evidence of discrimination,
his disparate treatment claim still fails under the direct evidence test because he cannot produce
sufficient evidence that the discriminatory motive was a substantial factor in his termination.
Atkinson contends that animosity existed between himself and his superiors because of
his condition, especially after he sent the 2006 e -mail. He asserts that his termination nearly
three years later was the culmination of a deteriorated relationship. In response to Les Schwab' s
assertion that Atkinson' s inconsistent performance was the reason for his termination, Atkinson
claims that disciplinary action for performance- related issues does not make sense because he
had the consent and support of several of the area managers to appear before the management
review board. In his view, Atkinson' s performance " was -good enough to -run a multimillion
dollar store." 1 CP at 88.
But Atkinson' s subjective opinion does not establish that his medical condition was a
substantial factor in his discharge13 and several of Atkinson' s reviews indicate performance
concerns as the sole factor that motivated Les Schwab' s decision. In March 2008, Atkinson' s
13
See Steckl v. Motorola, Inc., 703 F. 2d 392, 393 ( 9th Cir. 1983) ( stating that mere assertion that
defendant had discriminatory motivation and intent is inadequate to preclude summary
judgment); see also Chen App. 183, 191, 937 P. 2d 612 ( An employee' s
v. State," 86 Wn.
assertion of good performance to contradict the employer' s assertion of poor performance does
not give rise to a reasonable inference of discrimination.), review denied, 133 Wn.2d 1020
1997).
9
No. 44326 -1 - II
performance review suggested that his commitment to the store, his ability to work cooperatively
with customers and co- workers, and his ability to balance his workload in a" rapid pace"
environment needed improvement. 2 CP at 203. Atkinson' s review in July 2008 mentioned
subpar communication skills and the need for development as a crew leader.
In a December 2008 meeting, Rory told Atkinson that a " quantum leap" in job
performance was necessary. 2 CP at 210. Also, in 2008, neutral members of the management
review board traveled from Portland, Oregon to Chehalis specifically to meet with Atkinson to
discuss ways he could improve in certain areas before he next interviewed for the list, including
management skills and issues mentioned in negative reviews from his crew members.
Moreover, it was Rory who both hired Atkinson and played an integral, if not the
primary, role in the decision to remove him. When someone is both hired and fired by the same
decision makers within a relatively short period of time, there is a strong inference that he or she
was not discharged because of any attribute the decision makers were aware of at the time of the
14
hiring. Hill v. BCTI Income Fund - , 144 Wn.2d 172, 189, 23 P. 3d 440 ( 2001) (
I citing Bradley
v.. Harcourt, Brace & Co. 104 F. 3d 267, 270 -71 ( 9th Cir. 1996)). Here, Atkinson was hired by
Rory in 2003, promoted by Rory in 2006, and fired by Rory in 2009. Atkinson made it clear that
Rory was aware of Atkinson' s condition when he was initially hired.
Atkinson does not show that Les Schwab' s alleged discriminatory motive was a
substantial factor in the decision to terminate his employment. Atkinson' s burden under RCW
49.60. 180 is to present evidence sufficient for a trier of fact to reasonably conclude that the
14
See Bradley v. Harcourt, Brace & Co., 104 F. 3d 267, 270 -71 ( 9th Cir. 1996) ( "[ W]here the
same actor is responsible for both the hiring and the firing of a discrimination plaintiff, and both
actions occur within a short period of time, a strong inference arises that there was no
discriminatory motive. ").
10.
No. 44326 -1 - II
alleged unlawfully discriminatory animus was more likely than not a substantial factor in the
adverse employment action. Hill, 144 Wn.2d at 186 -87. Atkinson' s inability to demonstrate that
discrimination against his disability was a substantial factor leading to his termination fails to
create any genuine issue of material fact sufficient to reverse the trial court' s summary dismissal
of his claim. Accordingly, Atkinson fails to establish a prima facie case of disparate treatment
under the direct evidence test.
C. MCDONNELL DOUGLAS TEST
In the alternative, Atkinson argues that he satisfied the McDonnell Douglas burden -
shifting test. Atkinson contends that any reason for his termination offered by Les Schwab was a
pretext. Though Atkinson may be able to establish the elements of a prima facie case under the
McDonnell Douglas burden- shifting test, his disparate treatment claim fails because he cannot
demonstrate that Les Schwab' s articulated reasons for Atkinson' s termination were pretext.
Under the McDonnell Douglas test, a plaintiff establishes a prima facie case if he
presents evidence that ( 1) he belongs to a protected class; ( 2) he was treated less favorably in the
terms or conditions of his employment (3) than a similarly situated, nonprotected employee; and
4) he and the nonprotected " comparator" were doing substantially the same work. Johnson v.
Dep' t of Soc. & Health Servs., 80 Wn. App. 212, 227, 907 P. 2d 1223 ( 1996).
If the plaintiff establishes his prima facie case under McDonnell Douglas, then a legally
mandatory, rebuttable presumption of discrimination temporarily takes hold, and the evidentiary
burden shifts to the defendant to produce admissible evidence of a legitimate, nondiscriminatory
explanation for the adverse employment action sufficient to raise a genuine issue of fact as to
whether the defendant discriminated against the plaintiff. Hegwine, 162 Wn.2d at 354. If the
employer meets this intermediate production burden, the presumption established by having the
11
No. 44326 -1 - II
prima facie evidence is rebutted and the presumption simply drops out of the picture. Hegwine,
162 Wn.2d at 354. Once the presumption is removed, the plaintiff is then afforded a fair
opportunity to show the defendant' s stated reason for the adverse action was in fact a pretext.
Hegwine, 162 Wn.2d at 354. If a plaintiff cannot present evidence that the defendant' s reasons
for the adverse employment action are untrue or pretext, summary judgment is proper: Domingo
v. Boeing Emps. ' Credit Union, 124 Wn. App. 71, 78, 98 P. 3d 1222 ( 2004).
Even assuming, without deciding, that Atkinson has established a disparate treatment
prima facie case under the McDonnell Douglas test, his claim fails because he is unable to
demonstrate that Les Schwab' s proffered reasons for his termination were pretext and this failure
is fatal to his claim.
To prove pretext, a plaintiff must show that the defendant' s articulated reasons ( 1) had no
basis in fact, ( 2) were not really motivating factors for its decision, ( 3) were not temporally
connected to the adverse employment action, or ( 4) were not motivating factors in employment
decisions for other employees in the same circumstances. Fulton v. Dep' t of Soc. & Health
Servs., 169 Wn. App. -137; 161; 279 P..3d 500 ( 2012)._ To meet this burden, the employee is not
-
required to produce evidence beyond that already offered to establish a prima facie case or direct
smoking gun" evidence. Sellsted v. Wash. Mut. Say. Bank, 69 Wn. App. 852, 860, 851 P. 2d
716, review denied, 122 Wn.2d 1018 ( 1993).
A court may grant summary judgment when the record conclusively revealed some other,
nondiscriminatory reason for the employer' s decision, or if the plaintiff created only a weak
issue of fact as to whether the employer' s reason was untrue and there was abundant and
uncontroverted independent evidence that no discrimination occurred. Milligan v. Thompson,
110 Wn. App. 628, 637, 42 P. 3d 418 ( 2002). Thus, the trial court should submit the case to a
12
No. 44326 -1 - II
jury only when it determines that all three facets of this burden -shifting scheme are met and that
the parties have produced sufficient evidence supporting reasonable but competing inferences of
both discrimination and nondiscrimination. Fulton, 169 Wn. App. at 149.
Under these facts, our analysis of the pretext issue under McDonnell Douglas will depend
on substantially the same evidence as the " substantial factor" analysis above. Assuming that the
burden did shift to Les Schwab to articulate a nondiscriminatory reason for its decision to
discharge Atkinson, it has done so with a lengthy and detailed list of performance concerns. The
burden then shifts back to Atkinson to show that the reasons are mere pretext for a
discriminatory purpose, and if he cannot, summary judgment for Les Schwab is appropriate.
Grimwood v. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 364, 753 P. 2d 517 ( 1988).
Our Supreme Court' s pretext analysis in Grimwood is illustrative. There, the plaintiff
worked as the director of food services for the University of Puget Sound ( UPS). Grimwood,
110 Wn.2d at 356. Following his termination, Grimwood alleged age discrimination, but UPS
contended that serious performance issues were the actual reason. Grimwood, 110 Wn.2d at 357.
In support of his position, Grimwood offered letters from users of his services expressing
satisfaction with the same. Grimwood, 110 Wn.2d at 364. But the court stated that these letters
were insufficient to overcome the reasons articulated by UPS for Grimwood' s termination
because the letters did not come from anyone charged with evaluation of his performance
whereas UPS supported its own reasons with statements from individuals who did evaluate and
supervise Grimwood. Grimwood, 110 Wn.2d at 365.
Moreover, the court _
found that the employer' s reasons for discharging plaintiff were
bolstered by the fact that there were written complaints long before plaintiff's termination and by
the fact that some complaints about his performance came from those under plaintiff' s
13
No. 44326 -1 - II
supervision rather than someone with authority to discharge. Grimwood, 110 Wn.2d at 365.
UPS had also warned Grimwood six months before his termination that continued substandard
performance in the designated areas would be cause for dismissal. Grimwood, 110 Wn.2d at
365. The employer called Grimwood' s job deficiencies to his attention in writing, suggested
ways he could improve his performance, and expressed a willingness to assist him in correcting
the problems. Grimwood, 110 Wn.2d at 364 -65.
Here, in addition to his own opinion, Atkinson offers declarations that either support his
performance or question Les Schwab' s motivation for removing him. But like Grimwood, none
came from anyone having supervisory power. Instead, these declarations were from family
members and a former co- worker.
Furthermore, as mentioned above, Les Schwab presented evidence establishing that it had
well -documented concerns regarding Atkinson' s performance. These issues were documented in
performance reviews, meeting notes, and e- mails. They were expressed by store managers, area
managers, and members of a promotion review board. Some of these documents indicate
performance concerns expressed by employees under Atkinson' s - supervision, who had no
authority to discharge him.
Atkinson fails to establish that Les Schwab' s reasons for terminating Atkinson' s
employment had no basis in fact or were not really motivating factors in the ultimate decision.
Even when the evidence is viewed in a light most. favorable to Atkinson, Les Schwab presented
abundant and uncontroverted evidence that no discrimination occurred, and Atkinson' s evidence
is too weak to establish that the reasons offered by Les Schwab were mere pretext. Accordingly,
Atkinson' s disparate treatment claims fail, and summary judgment was therefore appropriate on
this claim.
14
No. 44326 -1 - II
ACCOMMODATION
Atkinson next argues that Les Schwab failed to reasonably accommodate his medical
needs. He does not assert that he requested and was subsequently denied accommodations;
rather, he contends that certain accommodations had been offered since the beginning of his
employment with Les Schwab and that Rory began to withdraw those accommodations. Les
Schwab responds that Atkinson cannot retroactively request accommodations and that if the law
did allow such a request, the accommodations he sought were unreasonable because they are
15
essential functions of his position. Viewing the evidence in a light most favorable to Atkinson,
we hold that he failed to produce evidence sufficient to establish a prima facie case that Les
Schwab failed to offer reasonable accommodations because the accommodations Atkinson
desired would have altered essential functions of Atkinson' s position. Therefore, summary
judgment was properly granted in favor of Les Schwab on this claim.
A. RULES OF LAW
Our high court has laid out four elements that an employee must show to establish a
prima facie case of failure - -reasonably
to accommodate a disability: - ( 1) the employee has 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
15 Les Schwab also argues in its brief that Atkinson did not engage in the " interactive process"
which is the terminology our courts use to describe the communication that must occur between
the employer and the employee so that the employer remains reasonably apprised as to the
employee' s accommodation needs. While Les Schwab is likely correct that this failure would
defeat Atkinson' s accommodation claim, each party devotes more focus to the issues set forth in
the analysis below. We do not address whether Atkinson failed to engage in the interactive
process because his accommodation claim is fatally flawed on other grounds.
15
No. 44326 -1 - II
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. Riehl v.
Foodmaker, Inc., 152 Wn. 2d 138, 145, 94 P. 3d 930 ( 2004). Our analysis focuses primarily on
the second element —the essential functions of the job.
B. ESSENTIAL FUNCTION
An employer is not required to offer accommodations that alter the essential functions or
fundamental job duties of a given position. Davis v. Microsoft Corp., 149 Wn.2d 521, 534, 70
P. 3d 126 ( 2003). In Davis, a systems engineer sued his former employer for failing to
reasonably accommodate him when various medical issues required him to reduce his hours and
workload drastically. 149 Wn.2d at 527. As a systems engineer, Davis was regularly required to
work over 50 hours a week, sometimes between 60 to 80 hours when new products were
launched. Davis, 149 Wn.2d at 526.
The court in Davis affirmed a grant of summary judgment in favor of Microsoft noting
that the varying hour requirements, the frequent travel, and the unpredictable customer demands,
taken together, constituted an essential function of Davis' s position. 149 Wn.2d -at 526. This
case and Davis are factually similar in some key respects. Here, Atkinson felt that extended
hours and inconsistent breaks exacerbated his migraine symptoms. Atkinson claims that he
could have been accommodated fairly if his work hours were reduced to 40 or 50, a level similar
to those he worked in the " sales and service" position. Atkinson also felt that Les Schwab
should allow him the flexibility necessary to take breaks and uninterrupted lunches when he
experienced migraines. But long hours, changing conditions, and availability to handle issues
that arise unexpectedly are key aspects of a managerial role. The Chehalis Les Schwab averaged
more than five million dollars in sales annually. To handle this volume, there were nearly 30
16
No. 44326 -1 - II
employees and only 3 managers at any given time. The management team was expected to be at
the location before the hourly employees and to stay later. The luxury of completely
uninterrupted breaks was not available to managers as it may have been for others.
By his own admission, Atkinson never knew whether he did or did not need additional
flexibility to take breaks because of the sudden onset of his migraines. It appears that Atkinson
desired the slower pace of his " sales and service" job but with the higher compensation of the
assistant manager position. Atkinson was well during his employment and it was
reasonable for Les Schwab to expect longer hours from salaried managers than they would
hourly employees. Atkinson' s desired accommodations would have required Les Schwab to
alter essential functions of his position. This is a result that the law neither intends nor requires.
The trial court did not err in granting summary judgment in favor of Les Schwab on Atkinson' s
accommodation claim.
C. APPLICATION OF CLEVELAND V. POLICY MANAGEMENT SYSTEMS CORP.
Atkinson also claims that the trial court granted summary judgment in favor of Les
Schwab on Atkinson' s accommodation claim largely because Atkinson claimed total- disability
on his application for disability benefits under the SSA. According to Atkinson, Cleveland"
precludes summary judgment on these. grounds. Les Schwab argues that Atkinson' s claim of
total disability for the purpose of SSA benefits was diametrically opposed to his assertion that he
could perform the essential functions of his job with reasonable accommodations. Because
Atkinson offered no explanation to resolve the inconsistency between his SSA disability
16
Atkinson made nearly $ 115, 000 in his last year with Les Schwab.
17
Cleveland v. Policy Mgmt. Sys. Corp., 526 U. S. 795, 119 S. Ct. 1597, 143 L. Ed. 2d 966
1999).
17
No. 44326 -1 - II
application and his current accommodation claim, his argument that Cleveland precludes
summary judgment fails.
The Court in Cleveland determined that claims for Social Security Disability Insurance
Act18 (
SSDI) under the Social Security SSA) and for damages under the Americans with
Disabilities Act19 ( ADA) do not inherently conflict to the point that receipt of SSDI benefits
estops the recipient from pursuing an ADA claim. Cleveland v. Policy Mgmt. Sys. Corp., 526
20
U.S. 795, 802 -03, 119 S. Ct. 1597, 143 L. Ed. 2d 966 ( 1999). The Court explained that the
confusion derives from the fact that the ADA requires that an individual maintain the ability to
perform essential functions of her job, at least with reasonable accommodation, while eligibility
for SSDI benefits is reserved for those having disabilities so severe that they are "` unable to do
their] previous work ' and ' cannot ... engage in any other kind of substantial gainful work
which exists in the national economy. ' Cleveland, 526 U. S. at 797 ( alteration in original)
quoting 42 U. S. C. § 423( d)( 2)( A)).
The court reconciled the seemingly divergent provisions by characterizing the total
disability necessary for SSDI benefits as " often impl[ying] a context -
related legal conclusion."
Cleveland, 526 U. S. at 802. In effect, a person can be considered legally disabled for the'
purpose of the SSA while perhaps able to work if offered the kind of reasonable
accommodations that the SSA does not take into account. Cleveland, 526 U.S. at 802 -03.
18
42 U. S. C. A. § 423( d)( 2)( A).
19
42 U.S. C. A § 12111( 8).
20
The ADA is the federal counterpart to WLAD. See Clarke v. Shoreline Sch. Dist. No. 412,.
106 Wn.2d 102, 118, 720 P. 2d 793 ( 1986) ( stating that Washington courts look to federal
discrimination law in interpreting the WLAD).
18
No. 44326 -1 - II
Atkinson is correct that his application for ( and subsequent receipt of) SSDI benefits in
and of itself does not constitute appropriate grounds for summary dismissal of his WLAD claims
nor does it estop him from seeking money damages. But Atkinson' s accommodation argument
is flawed for two reasons: ( 1) he fails to explain the contradiction between his SSDI application
and his WLAD claims as Cleveland requires, 526 U. S. at 806; and ( 2) days after his termination,
Atkinson' s doctor made several additional statements that described the extent of Atkinson' s
condition and his inability to work.
The Cleveland Court held that although an ADA plaintiff is not estopped from seeking
damages after receiving SSDI benefits, he or she cannot simply ignore the apparent contradiction
arising out of the earlier claim of total disability. 526 U. S. at 806. A discrimination plaintiff
must proffer a sufficient explanation as to the inconsistencies and if they fail to do so, prior
assertions of inability to work in the earlier application will appear to negate essential elements
of ADA claims, rendering summary judgment appropriate.21
In his application for SSDI benefits, Atkinson describes himself as being completely
bedridden by the severe pain associated with his migraines. Atkinson mentions that his job
duties required him to run, walk, climb, and lift for approximately five to seven hours a day.
Atkinson then claims that he cannot walk, drive, lift objects, or interact with others during
migraines, and that he was unable to work beginning on March 6, 2009. On March 18, 2009, 12
days after Atkinson was removed from his position, Atkinson' s doctor, Dr. Robinson, filled out a
medical certification form on which she answered several questions about Atkinson' s condition
21 "
Summary judgment for a defendant is appropriate when the plaintiff `fails to make a showing
sufficient to establish the existence of an element essential to [ her] case. "' Cleveland, 526 U. S.
at .806 ( alteration in original) ( quoting Celotex Corp. v. Catrett, 477 U. S. 317, 322, 106 S. Ct.
2548, 91 L. Ed. 2d 265 ( 1986)).
19
No. 44326 -1 - II
and the work -
related limitations it creates. She answered " no" to the question inquiring as to
whether Atkinson was able to perform work of any kind, including light duty tasks. 1 CP at 180.
She also answered "[ n] o" when asked whether Atkinson could perform one or more of the,
essential functions of his job. 1 CP at 180.
In early June 2009, Atkinson saw Dr. Robinson again who concluded their meeting with
a report stating that Atkinson' s condition had not improved and that she recommended that
Atkinson not return to work.
Atkinson has made no . attempt to explain the contradictory nature of his previous
statements or to resolve the disparities between those statements and his current belief that he
can perform the essential functions of his former job. Atkinson submitted a declaration by
Merrill Cohen, who claimed to have a " vocational rehabilitation practice" and who served
regularly as a " vocational expert" in disability adjudications before administrative law judges. 4
CP at 762. The essential premise of Cohen' s declaration is that applications for various benefits
by unemployed workers often require conclusory statements that appear mutually exclusive but
actually are not.
But Cohen is describing the relationship between Atkinson' s application for emergency
unemployment benefits and Atkinson' s need for accommodation. Cohen addresses the fact that
Atkinson indicated that he was fully able to work on the aforementioned application ostensibly to
preempt any attempt by Les Schwab to defeat Atkinson' s accommodation argument based on the
statements Atkinson provided to the Employment Security Department of Washington.
Though somewhat similar, this is not what Cleveland requires. Rather, Atkinson was
required to explain inconsistencies created by his previous statements that he was fully unable to
20
No. 44326 -1 - II
work in any capacity and to reconcile those statements with his later claim that his employer
failed to reasonably accommodate him. This is the explanation Atkinson failed to address.
Furthermore, a party cannot create a genuine issue of fact sufficient to survive summary
judgment simply by contradicting his or her own previous sworn statement. Cleveland, 526 U. S.
at 806. Atkinson and Atkinson' s doctor stated that he was unable to work because of his
condition. Atkinson has acted in accordance with those statements since his termination from
Les Schwab and has not returned to employment. Atkinson' s accommodation claim fails
because he has not established the existence of any genuine issue of material fact regarding his
ability to perform the essential functions of his former job. Summary judgment was proper on
this claim.
RETALIATION
Atkinson next asserts that Rory developed a discriminatory animus towards Atkinson
following his 2006 e -mail to Les Schwab' s corporate office. Atkinson alleges that Rory took
retaliatory action in the form of (1) complaints about Atkinson' s disability, ( 2) overt criticism of
Atkinson' s work, ( 3) increasing Atkinson' s workload, and ( 4) undermining Atkinson' s authority.
Viewing the evidence in a light most favorable to Atkinson, we hold that he failed to produce
evidence sufficient to establish the requisite causal link between his participation in statutorily
protected activity and the adverse employment action taken against him. Therefore, summary
judgment was properly granted in favor of Les Schwab on Atkinson' s retaliation claim.
A. RULES OF LAW
The WLAD prohibits retaliation against a party asserting a claim based on a perceived
violation of his civil rights or participating in an investigation into alleged workplace
discrimination. RCW 49. 60. 210( 1). To establish a prima facie retaliation case, a plaintiff must
21
No. 44326 -1 - II
show that ( 1) he engaged in statutorily protected activity, ( 2) his employer took adverse
employment action against him, and ( 3) there is a causal link between the activity and the
adverse action. Short v. Battle Ground Sch. Dist., 169 Wn. App. 188, 205, 279 P. 3d 902 ( 2012).
Our focus here is whether Atkinson engaged in statutorily protected activity and if so, whether
that activity was causally linked to his demotion.22
B. STATUTORILY PROTECTED CONDUCT
An employee engages in WLAD -
protected activity when he opposes employment
practices forbidden by antidiscrimination law or other practices that he reasonably believed to be
discriminatory. Short, 169 Wn. App. at 205. It is not necessary that the conduct complained of
actually be unlawful because "` [ a] n employee who opposes employment practices reasonably
believed to be discriminatory is protected by the opposition clause whether or not the practice is
actually discriminatory. "' Graves v. Dep' t of Game, 76 Wn. App. 705, 712, 887 P. 2d 424 ( 1994)
internal quotation marks omitted) ( quoting Gifford v. Atchison, Topeka & Sante Fe Ry., 685
F. 2d 1149, 1157 ( 9th Cir. 1982)). Absent some reference to the plaintiff' s protected status, a
general complaint about an employer' s unfair conduct does not rise to the level of protected
activity in a discrimination action under WLAD. Alonso v. Qwest Commc ' ns Co., 178 Wn. App.
734, 315 P. 3d 610, 620 -21 ( 2013) ( citing Graves, 76 Wn. App. at 712)).
Here, Atkinson sent an e -mail to company managers above his local managerial structure
because he was concerned about Rory' s statement and the implication that Atkinson' s condition
may be a detriment to his continued mobility. Atkinson was fearful that his disability alone
would bar him from future promotion. Refusal to promote an employee because of a disability
22 Because Atkinson was removed from his managerial role, the second element is easily
satisfied and not contested by the parties.
22
No. 44326 -1 - II
would be a violation of WLAD. RCW 49. 60. 180( 3). It is fair to conclude that Atkinson wrote
the e -mail in opposition to an employment practice that he reasonably believed would be
discriminatory. When the evidence is viewed in a light most favorable to Atkinson as the
nonmoving party, his e -mail constitutes protected activity.
C. CAUSATION
Atkinson must also demonstrate that sending the e -mail and his removal as manager were
causally linked. Causation can be inferred from the timing of the adverse action; proximity in
time between the adverse action and the protected activity, coupled with the existence of
satisfactory work performance and supervisory evaluations suggest an improper motive. Kahn v.
Salerno, 90 Wn. App. 110, 130 -31, 951 P. 2d 321, review denied, 136 Wn.2d 1016 ( 1998).
Moreover, to show a causal connection, the employee must specifically show that the employer' s
motivation for the discharge was the employee' s exercise or intent to exercise the protected
rights. Wilmot v. Kaiser Aluminum & Chem. Corp., 118 Wn.2d 46, 68 -69, 821 P. 2d 18 ( 1991).
The plaintiff need not establish that retaliation for protected activity was the sole reason for the
adverse employment- action; he must show only that retaliation was -a substantial- motivating
-
factor. Allison v. HousingAuth., 118 Wn.2d 79, 96, 821 P. 2d 34 ( 1991).
Atkinson fails to establish the causation element. He makes a speculative assertion that
Rory wanted to retaliate after Atkinson sent the e -mail because "[ Rory] felt like I was going after
him." 1 CP at 127. Describing the alleged retaliation, Atkinson states, "[ T] here [ were] a lot of
instances where there was just no leeway," and that "[ Rory] would work things in a way that got
23
No. 44326 -1 - II
the crew mad at [ him]." 1 CP at 128. Atkinson claims that Rory told employees he was " hiding
out" in the bathroom when he was experiencing illness from migraines. 3 CP at 490. Atkinson
recounts a specific instance when Rory approved his vacation time off then told the other
employees he was upset with Atkinson for being elsewhere during a busy time.
Notwithstanding the fact that Atkinson may have found these behaviors offensive, they
do not appear to be connected with his 2006 complaint nor are they adverse employment actions
in themselves. Furthermore, there is a striking lack of temporal proximity which tends to
indicate that there is no nexus between Atkinson' s e -mail and his discharge. Francom v. Costco
Wholesale Corp., 98 Wn. App. 845, 863, 991 P.2d 1182, review denied, 141 Wn.2d 1017 ( 2000).
The court in Francom noted that 15 months had passed between the plaintiff' s complaint and an
adverse employment action when it declared a connection unlikely. 98 Wn. App. at 863.
Here, nearly three full years passed23 between Atkinson' s 2006 e -mail and his 2009
termination. During this time, Rory supported Atkinson' s attempted promotion to store
manager. Finally, there was evidence of repeated unsatisfactory performance evaluations before
Atkinson' s termination Atkinson fails to establish that his participation in a protected activity
was a substantial factor in his termination. Even when viewed in a light most favorable to
Atkinson, he fails to establish a prima facie case for retaliation. Summary judgment to Les
24
Schwab on Atkinson' s unlawful retaliation claim was properly granted.
23
See also Villiarimo v. Aloha Island Air, Inc., 281 F. 3d 1054, 1065 ( 9th Cir. 2002) ( finding that
18 months between complaint and action is too long to give inference of causation).
24
Atkinson also attempts to advance a hostile work environment claim. We decline to consider
this issue because Atkinson did not advance this argument below. A hostile work environment
claim does not appear in Atkinson' s response to Les Schwab' s motion for summary judgment
nor does it appear as a cause of action in his complaint. We consider only evidence and issues
called to the attention of the trial court. RAP 9. 12.
24
No. 44326 -1 - II
SANCTIONS AND MOTION TO STRIKE
Atkinson appeals the trial court' s denial of his second motion for sanctions claiming that
he was prejudiced by the inability to obtain necessary discovery. Additionally, Atkinson
contends that the trial court erred in striking entire witness declarations instead of only
inadmissible portions. We hold that the trial court did not abuse its discretion in refusing to
impose additional sanctions nor did it strike Atkinson' s witnesses' declarations.
A. RULES OF LAW
A trial court exercises broad discretion in imposing discovery sanctions under CR 26( g)
or 37( b) and its determination will not be disturbed absent a clear abuse of discretion. Magana v.
Hyundai Motor Am., 167 Wn.2d 570, 582, 220 P. 3d 191 ( 2009). A trial court abuses its
discretion when its order is manifestly unreasonable or based on untenable grounds. Mayer v.
Sto Indus., Inc., 156 Wn.2d 677, 684, 132 P. 3d 115 ( 2006). " A discretionary decision rests on
untenable grounds' or is based on ` untenable reasons' if the trial court relies on unsupported
facts or applies the wrong legal standard; the court' s decision is ` manifestly unreasonable' if `
the
court, despite applying the correct legal standard to the supported facts, adopts a view that no
reasonable person would take. "' Mayer, 156 Wn.2d at 684 ( internal quotation marks omitted)
quoting State v. Rohrich, 149 Wn.2d 647, 654, 71 P. 3d 6338 ( 2003)).
An appellate court reviews all trial court rulings made in conjunction with a summary
judgment motion de novo. Folsom v. Burger King, 135 Wn.2d 658, 663, 958 P. 2d 301 ( 1998).
25
No. 44326 -1 - II
This includes a ruling on a motion to strike evidence. Rice v. Offshore Sys., Inc., 167 Wn. App.
77, 85, 272 P. 3d 865, review denied, 174 Wn.2d 1016 ( 2012).
B. DENIAL OF SECOND MOTION FOR SANCTIONS
Atkinson deposed Stacey Lynch, a human resources manager for Les Schwab. During
the first deposition, counsel for Les Schwab instructed Lynch not to respond to the majority of
Atkinson' s inquiries. In response, Atkinson moved for sanctions, requesting a continuance of the
summary judgment hearing, attorney fees, and costs. for a second deposition. The trial court
granted Atkinson' s motion in part.
Still unsatisfied after conducting the second deposition, Atkinson filed a second motion
for sanctions to which he also attached declarations from Gerry Arnson, Cohen, and Valissa
Holdt. Les Schwab moved to strike thesee declarations, but the court substantially denied the
motion, striking only inadmissible hearsay statements. The trial court also denied Atkinson' s
second motion for sanctions.
Atkinson' s primary contention is that Les Schwab continued to obstruct the discovery
process because Lynch answered, " I don' t know" to over 100 of his questions during her second
deposition. 4 CP at 666. Atkinson asked an array of questions that someone who works in
human resources would not be expected to know, including questions concerning stock market
investment, Les Schwab' s gross revenue, why Les Schwab' s chief executive officer is a lawyer,
25
and where he is admitted to practice.
25
Atkinson also fails to cite authority other than the standard of review. We can refuse to
consider this argument on these grounds alone. RAP 10. 3( a)( 5) -( 6); Cowiche Canyon
Conservancy v. Bosley, 118 Wn.2d 801, 809, 828 P. 2d 549 ( 1992).
26
No. 44326 -1 - II
The record shows that Lynch made an effort to prepare for questions on topics that
pertained to the case and that were reasonably within her knowledge. Furthermore, in making its
ruling, the trial court considered the full transcript of Lynch' s second deposition. The trial court
is in a better position than an appellate court to determine the appropriate discovery sanctions.
Magana, 167 Wn.2d at 582 n. 5. For this reason deference should normally be given to the trial
court' s decision. Magana, 167 Wn.2d at 583 ( citing Wash. State Physicians Ins. Exch. & Ass' n
v. Fisons Corp., 122 Wn.2d 299, 339, 858 P. 2d 1054 ( 1993)). Given the record, the trial court
did not base its decision on untenable or manifestly unreasonable grounds and, therefore, did not
abuse its discretion.
C. MOTION TO STRIKE
Atkinson contends that the trial court abused its discretion in choosing to strike
declarations. Atkinson' s argument fails. Three declarations were the subject of Les Schwab' s
motion to strike. The order denying that motion specifically indicates that the declarations will
be considered except for those portions that contain inadmissible statements. Moreover, the
order granting Les Schwab' s motion for summary judgment lists every part of the record that the
trial court considered before making its determination. Each one of the declarations which
Atkinson claims should not have been struck was, in fact, not struck. The trial court did not en.
27
No. 44326 -1 - II
We affirm.
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 in accordance with RCW
2. 06. 040, it is so ordered.
We concur:
WC SWICK, C. J.
LE
28