[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 174
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 175 [As amended by order of the Supreme Court July 17, 2001.] *Page 176
We are asked to clarify the evidentiary standard that a plaintiff with a chapter 49.60 RCW employment discrimination claim must meet to survive a motion for judgment as a matter of law. The Court of Appeals adopted the so-called `pretext-plus' standard, which was recently rejected by the United States Supreme Court in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). We, too, reject the pretext-plus standard and thus vacate the Court of Appeals' opinion. We affirm its rulings in this case on different grounds.
FACTS In August 1993, Randy Potter of the Business Computer Training Institute, Inc. (BCTI) hired Eleanor Hill, who was 53 years old at the time. She soon proved to be the top recruiter in BCTI's Tacoma-Lacey marketing office. On January 14, 1994, Hill signed the following notice:
It is a policy of BCTI that an employee not discuss financial arrangements with any other employee[,] i.e. current salary, raises, problems with hours or commissions, and/or benefits. Doing so is grounds for immediate and automatic termination. If problems or questions arise[,] discuss them with your supervisor.
Def.'s Ex. 29. That month, Hill told her supervisors, Terry Clark and Potter, that she was interested in transferring to BCTI's Southcenter office, since she was moving to Seattle to live near her mother, who was ill and in her 80s. They assured her that such a transfer could be arranged. They took no action, however, explaining later that they did not construe her comments as a formal request for a transfer. Hill moved to Seattle in February 1994 and began commuting to her work in Tacoma. A recipient of social security benefits since 1988 for, inter alia, chronic asthma, Hill told Potter and Clark on several occasions over the next few months that she believed the commute was aggravating her asthma and that she needed to transfer offices. *Page 177
On May 3, 1994, Hill was hospitalized for several days following a severe asthma attack. Hill's daughter called BCTI to inform the company that Hill had been hospitalized for asthma and Potter and Clark each called Hill at the hospital. She reiterated her desire for a transfer, and both supervisors promised to help arrange it, though neither took any action toward that end.
Hill was absent from work the rest of May, reportedly recuperating. During that time, she phoned Tammy Johnson, public relations supervisor at BCTI's Southcenter office, to ask if there were any job openings. `Not at this time,' Hill was told, but `[k]eep in touch.' Report of Proceedings (RP) at 131-32. On May 24, Hill carpooled with Southcenter office employees to BCTI's annual company-wide retreat in Port Townsend. On the way, Hill and Johnson discussed a possible office transfer. Johnson and Rose Medley, who was also present, later said under oath (1) that Hill had insisted she would transfer to the Southcenter office only if offered similar pay, hours, and benefits, and (2) that Hill had claimed she was already earning $8 an hour, working 40 hours a week, and receiving benefits. At the time, Hill was working part-time, for $7.50 an hour, without health care benefits. In a sworn deposition, Hill said she told Johnson she was making `$7.50 or $8, around that figure' at BCTI's Tacoma office and working `37, 35, 37 [hours], something along there' per week. RP at 184-85. But later, when asked at trial, `Did you tell the people at Southcenter then what you were making at Tacoma?' Hill responded under oath, `Never.' RP at 138. Hill denied violating the company policy, having simply told Johnson that she `would have to make $8 an hour' and `have full-time and benefits' before she would agree to a transfer. RP at 137.
After the retreat, Hill followed-up with Johnson by phone and scheduled a job interview for the following week. On June 6, 1994, Hill returned to work and spoke with Potter. She requested a transfer to BCTI's Southcenter office, explaining that her asthma was making the commute *Page 178 unbearable. Under oath, Potter later claimed this was the first time Hill had formally requested a transfer. Potter promised Hill he would talk to Clark about it. The next day, Potter asked Hill whether it was true that she was already pursuing the transfer on her own and that she had disclosed her current salary and benefits to Johnson. Hill admitted doing the former after repeatedly — and unsuccessfully — asking Potter and Clark to arrange the transfer, but denied disclosing her terms of employment. On or about June 8, 1994, Potter and Clark met with Hill. When Hill repeated her earlier characterization of her conversations with Johnson, she was fired. Hill was given the following explanation for her termination: `Because you lied to us. You didn't tell us the truth.' RP at 148. Neither Potter nor Clark was later able to recall any other instance when Hill's honesty was in doubt. The record indicates that Hill, an African-American, was replaced at BCTI by an African-American man and a Caucasian woman, both under age 40.
Hill brought this action against BCTI in Pierce County Superior Court, claiming she had been unlawfully fired because of age, race, and disability, in violation of chapter 49.60 RCW, Washington's Law Against Discrimination (WLAD).1 At the close of Hill's case in chief, BCTI moved to dismiss all claims as a matter of law under CR 50. The court granted a directed verdict on Hill's disability-based claim, but permitted the two remaining claims to go to the jury. The jury rejected Hill's race-based claim, but found it more probable than not that BCTI had unlawfully fired her because of her age and awarded her $119,000 in damages. The court denied BCTI's motion for a judgment notwithstanding the verdict and awarded Hill costs and attorney fees.
BCTI appealed the jury verdict, and Hill cross-appealed the directed verdict. The Court of Appeals affirmed the latter, but set aside the jury's age discrimination verdict for *Page 179 insufficient evidence, relying on court rulings adopting the `pretext-plus' standard. Hill v. BCTI Income Fund-I, 97 Wn. App. 657,661, 986 P.2d 137 (1999) (citing, e.g., Fisher v. Vassar College,114 F.3d 1332 (2d Cir. 1997), cert. denied, 522 U.S. 1075 (1998)). After we granted review, the United States Supreme Court rejected the `pretext-plus' standard. Reeves, 120 S.Ct. at 2108.
ANALYSIS RCW 49.60.180(2) makes it unlawful for employers `[t]o discharge or bar any person from employment because of age, sex, marital status, race, creed, color, national origin, or the presence of any sensory, mental, or physical disability.' Because workplace discrimination is `a matter of state concern . . . [that] threatens not only the rights and proper privileges of its inhabitants but menaces the institutions and foundation of a free democratic state,' RCW 49.60.010, the Legislature has mandated that WLAD provisions `shall be construed liberally for the accomplishment of the purposes thereof.' RCW 49.60.020. While employers deserve protection from frivolous lawsuits and from jury verdicts not reasonably supported by evidence, courts must carefully consider all allegations of unlawful discrimination, since the WLAD `embodies a public policy of `the highest priority." Xieng v. Peoples Nat'l Bank,120 Wn.2d 512, 521, 844 P.2d 389 (1993) (quoting Allison v. HousingAuth., 118 Wn.2d 79, 86, 821 P.2d 34 (1991)).
Direct, "smoking gun" evidence of discriminatory animus is rare, since "[t]here will seldom be `eyewitness' testimony as to the employer's mental processes," United States Postal Serv. Bd. of Governors v.Aikens, 460 U.S. 711, 716, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983), and "employers infrequently announce their bad motives orally or in writing."deLisle v. FMC Corp., 57 Wn. App. 79, 83, 786 P.2d 839 (1990). Consequently, it would be improper to require every plaintiff to produce "direct evidence of discriminatory intent." Aikens, 460 U.S. at 714 n. 3. Courts have thus *Page 180 repeatedly stressed that `[c]ircumstantial, indirect and inferential evidence will suffice to discharge the plaintiff's burden.' Sellsted v. Wash. Mut. Sav. Bank, 69 Wn. App. 852, 860, 851 P.2d 716, reviewdenied, 122 Wn.2d 1018 (1993). "Indeed, in discrimination cases it will seldom be otherwise. . . .' deLisle, 57 Wn. App. at 83.
Recognizing this reality, the United States Supreme Court established an evidentiary burden-shifting protocol in McDonnell Douglas Corp. v.Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), to "compensate for the fact that direct evidence of intentional discrimination is hard to come by." Price Waterhouse v. Hopkins,490 U.S. 228, 271, 109 S.Ct. 1775, 104 L.Ed.2d 268 (1989) (O'Connor, J., concurring). "The shifting burdens of proof set forth in McDonnellDouglas are designed to assure that the "plaintiff [has] his [or her] day in court despite the unavailability of direct evidence.'" Sellsted,69 Wn. App. at 864 (first alteration in original) (quoting Chipolliniv. Spencer Gifts, Inc., 814 F.2d 893, 898 (3d Cir.), cert. dismissed,483 U.S. 1052 (1987) (quoting Trans World Airlines, Inc. v. Thurston,469 U.S. 111, 121, 105 S.Ct. 613, 83 L.Ed.2d 523 (1985))).
Washington courts have largely adopted the federal protocol announced in McDonnell Douglas for evaluating motions for judgment as a matter of law in discrimination cases brought under state and common law, where the plaintiff lacks direct evidence of discriminatory animus. Kastanisv. Educ. Employees Credit Union, 122 Wn.2d 483, 490, 859 P.2d 26,865 P.2d 507 (1993). Still, while federal employment law rulings represent "a source of guidance, we bear in mind that they are not binding and that we are free to adopt those theories and rationale which best further the purposes and mandates of our state statute." Grimwoodv. Univ. of Puget Sound, Inc., 110 Wn.2d 355, 361-62, 753 P.2d 517 (1988); see also Allison, 118 Wn.2d at 90-91. While McDonnell Douglas requires both parties to carry their respective `intermediate evidentiary burdens' to avoid an unfavorable judgment as a matter of law, `[t]he ultimate *Page 181 burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.' Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253,101 S.Ct. 1089, 67 L.Ed.2d 207 (1981).
(1) Prima Facie Case: The plaintiff bears the first intermediate burden, namely, that of setting forth a prima facie case of unlawful discrimination. McDonnell Douglas, 411 U.S. at 802. A prima facie case of racial discrimination, for instance, is generally established "by showing (i) that [the plaintiff] belongs to a racial minority; (ii) that he [or she] applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his [or her] qualifications, he [or she] was rejected; and (iv) that, after his [or her] rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.' Id.2 Unless a prima facie case of discrimination is set forth, the defendant is entitled to prompt judgment as a matter of law. Kastanis, 122 Wn.2d at 490 (citingBurdine, 450 U.S. at 254).
(2) Nondiscriminatory Explanation: If a prima facie case is established, a "legally mandatory, rebuttable presumption" of discrimination temporarily takes hold, Burdine, 450 U.S. at 254 n. 7, 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." Burdine,450 U.S. at 254-55; Wilmot v. Kaiser Aluminum Chem. Corp., 118 Wn.2d 46,70, 821 P.2d 18 (1991). This is merely a burden of production, not of persuasion. Grimwood, 110 Wn.2d at 364. "If the defendant fails to meet this production burden, the plaintiff is entitled to an order establishing liability as a matter of law," Kastanis, *Page 182 122 Wn.2d at 490, "because no issue of fact remains in the case." Burdine,450 U.S. at 254. If, however, the defendant meets this intermediate production burden, the presumption established by the prima facie evidence is rebutted and, "having fulfilled its role of forcing the defendant to come forward with some response, [the presumption] simply drops out of the picture." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 510-11,113 S.Ct. 2742, 125 L.Ed.2d 407 (1993).3
(3) "Evidence of Pretext": Once the presumption is removed, the burden of proof shifts back to the plaintiff, who must then `be afforded a fair opportunity to show that [defendant's] stated reason for [the adverse action] was in fact pretext.' McDonnell Douglas, 411 U.S. at 804. If the plaintiff proves incapable of doing so, the defendant becomes entitled to judgment as a matter of law. Grimwood, 110 Wn.2d at 365.
The United States Supreme Court's initial articulation of this third intermediate evidentiary burden fostered great confusion nationwide. Several lower federal courts concluded that, once a plaintiff had (a) set forth a prima facie case of employment discrimination and (b) discredited the employer's explanation, a verdict for the plaintiff was required. The Court sharply rejected such logic in St. Mary's Honor Ctr. v. Hicks.4 That decision, however, then led other lower federal courts to conclude that such a showing was never adequate to support a circumstantial discrimination claim and should always result in a judgment for the defendant as a matter of law.
Federal circuits soon found themselves split into three distinct camps over how to apply the third McDonnell *Page 183 Douglas intermediate burden.5 `Pretext-only' courts held that a "prima facie case combined with sufficient evidence to disbelieve [the] employer's explanation always creates [a] jury issue of whether [the] employer intentionally discriminated," Reeves, 530 U.S. at 104 (emphasis added), thereby always precluding judgment as a matter of law for the defendant. "Pretext-plus" courts held that such a showing is never by itself adequate to prove employment discrimination and therefore, without more, should always result in judgment for the defendant as a matter of law. Reeves, 530 U.S. 140. "Hybrid-pretext" courts held that while such a showing "is entitled to considerable weight, such that [a] plaintiff should not be routinely required to submit evidence over and above proof of pretext," id. such evidence could sometimes prove insufficient to avoid a judgment as a matter of law. Aka v. Wash. Hosp. Ctr.,156 F.3d 1284, 1292 (D.C. Cir. 1998).
This past June, however, the United States Supreme Court issued a unanimous decision in Reeves, a federal Age Discrimination in Employment Act (ADEA) case, in an effort to
Reeves, 530 U. S. at 104 (cases collected). The Court resolved the conflict in a way that displeased both plaintiffs and defendants in employment discrimination cases. Defendants were displeased because the Court expressly rejected the so-called `pretext-plus' position. See,e.g., Washington Defense Trial Lawyers Amicus Br. at 5. The Court ruled that *Page 184resolve a conflict among the [federal] Courts of Appeals as to whether a plaintiff's prima facie case of discrimination (as defined in [McDonnell Douglas]), combined with sufficient evidence for a reasonable factfinder to reject the employer's nondiscriminatory explanation for its decision, is adequate to sustain a finding of liability for intentional discrimination.
it is permissible for the trier of fact to infer the ultimate fact of discrimination from the falsity of the employer's explanation. . . . Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive. In appropriate circumstances, the trier of fact can reasonably infer from the falsity of the explanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evidence law that the factfinder is entitled to consider a party's dishonesty about a material fact as "affirmative evidence of guilt." Moreover, once the employer's justification has been eliminated, discrimination may well be the most likely alternative explanation, especially since the employer is in the best position to put forth the actual reason for its decision. Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.Reeves, 530 U.S. at 147-48 (citations omitted).6 However, in a statement that displeased employment discrimination plaintiffs, the Court also rejected the "pretext-only" position:
Reeves, 530 U.S. at 148 (citations omitted) (emphasis added) (quotingSt. Mary's, 509 U.S. at 524 (quoting Aikens, 460 U.S. at 716)).7This is not to say that such a showing by the plaintiff will always be adequate to sustain a jury's finding of liability. Certainly there will be instances where, although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory. For instance, an employer would be entitled to judgment as a matter of law if 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 *Page 185 uncontroverted independent evidence that no discrimination had occurred. To hold otherwise would be effectively to insulate an entire category of employment discrimination cases from review under [Fed.R.Civ.P. 50], and we have reiterated that trial courts should not "treat discrimination differently from other ultimate questions of fact."
The United States Supreme Court thus embraced a "hybrid-pretext" standard similar, if not identical, to the one articulated two years earlier by the District of Columbia Circuit in Aka. The Aka court held that, while a plaintiff "cannot always" survive a motion for judgment as a matter of law with a prima facie case plus evidence sufficient to disbelieve the employer's proffered explanation, "such a showing does have considerable evidentiary significance." 156 F.3d at 1292. Moreover, if such a showing permits a reasonable factfinder to "infer that the employer's explanation is not only a mistaken one in terms of the facts, but a lie, that should provide even stronger evidence of discrimination."Id. at 1293; see also St. Mary's, 509 U.S. at 511.
For the reasons articulated in both Reeves and Aka, we, too, reject the "pretext-only" and "pretext-plus" standards in circumstantially based discrimination claims brought under state law. Instead, we hold that while a McDonnell Douglas prima facie case, plus evidence sufficient to disbelieve the employer's explanation, will ordinarily suffice to require determination of the true reason for the adverse employment action by a factfinder in the context of a full trial,8 that will not always be the case. In the words of the *Page 186 United States Supreme Court:
Reeves, 530 U.S. at 148-49.Whether judgment as a matter of law is appropriate in any particular case will depend on a number of factors. Those include the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion for judgment as a matter of law.
(4) Trial Required: Once a court determines that the parties have met all three McDonnell Douglas intermediate burdens and that the record contains reasonable but competing inferences of both discrimination and nondiscrimination, "it is the jury's task to choose between such inferences." Carle v. McChord Credit Union, 65 Wn. App. 93, 102,827 P.2d 1070 (1992) (citing United States v. Stanley, 928 F.2d 575, 577 (2d Cir.), cert. denied, 502 U.S. 845 (1991)); see also Hume v. Am.Disposal Co., 124 Wn.2d 656, 667-68, 880 P.2d 988 (1994) ("When all three facets of the [McDonnell Douglas] burden of production have been met, the case must be submitted to the jury." (quoting Carle,65 Wn. App. at 102)). The trier of fact must then hear and evaluate the parties' dueling explanations for the adverse action and reasonably determine whether the plaintiff has carried his or her ultimate evidentiary burden.9 That ultimate burden in cases brought under RCW49.60.180 is to *Page 187 present evidence sufficient for a trier of fact to reasonably conclude that the alleged unlawfully discriminatory animus was more likely than not a substantial factor in the adverse employment action. Mackay v.Acorn Custom Cabinetry, Inc., 127 Wn.2d 302, 311, 898 P.2d 284 (1995) (citing Kastanis, 122 Wn.2d at 491). If the jury returns a verdict that is not reasonably grounded in the evidence presented, a motion for a judgment notwithstanding the verdict (JNOV) should be granted, as in any other case. Reeves, 530 U.S. at 148-49.
I Applying these principles to the instant case, we first consider whether BCTI's JNOV motion on Hill's age discrimination claim was correctly adjudicated. Motions for judgments as a matter of law are reviewed de novo, applying the same legal standard as the trial court.Hume, 124 Wn.2d at 667.
Aluminum Co. of Am. v. Aetna Cas. Sur., 140 Wn.2d 517, 529, 998 P.2d 856 (2000) (quoting Goodman v. Goodman, 128 Wn.2d 366, 371, 907 P.2d 290 (1995))."A JNOV is proper only when the court can find, `as a matter of law, that there is neither evidence nor reasonable inference therefrom sufficient to sustain the verdict.' Brashear v. Puget Sound Power Light Co., 100 Wn.2d 204, 208-09, 667 P.2d 78 (1983) (quoting Hojem v. Kelly, 93 Wn.2d 143, 145, 606 P.2d 275 (1980)). A motion for a JNOV admits the truth of the opponent's *Page 188 evidence and all inferences that can be reasonably drawn therefrom, and requires the evidence be interpreted most strongly against the moving party and in the light most favorable to the opponent. No element of discretion is involved. Davis v. Early Constr. Co., 63 Wn.2d 252, 254-55, 386 P.2d 958 (1963)."
It is unlawful for employers "[t]o discharge . . . any person from employment because of age." RCW 49.60.180(2). To make out a McDonnellDouglas prima facie case of wrongful discharge due to age, a plaintiff must show that he or she (1) was within the statutorily protected age group; (2) was discharged by the defendant; (3) was doing satisfactory work; and (4) was replaced by a significantly younger person.10Grimwood, 110 Wn.2d at 362. The record shows that Hill was (1) between 40 and 70 years of age at the time, RCW 49.44.090; 49.60.205; (2) by all accounts excelled at her job as a BCTI recruiter; (3) was discharged by BCTI; and (4) was replaced by significantly younger persons. Indeed, BCTI concedes that Hill successfully established a prima facie case of age discrimination. See BCTI's Opening Br. at 2, 7. Hill also presented sufficient evidence to raise a material question of fact regarding the accuracy of BCTI's explanation for her firing.
That, however, does not resolve the issues raised by BCTI's JNOV motion.11 As the United States Supreme Court has pointed out, "there will be instances where, *Page 189 although the plaintiff has established a prima facie case and set forth sufficient evidence to reject the defendant's explanation, no rational factfinder could conclude that the action was discriminatory." Reeves,530 U.S. at 148. We believe this is such a case. Hill failed to present sufficient evidence to reasonably support even a circumstantial case of wrongful discharge due to age.
When someone is both hired and fired by the same decisionmakers within a relatively short period of time, there is a strong inference that he or she was not discharged because of any attribute the decisionmakers were aware of at the time of hiring. 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.") (citing Lowev. J. B. Hunt Transp., Inc., 963 F.2d 173, 175 (8th Cir. 1992) ("It is simply incredible, in light of the weaknesses of plaintiff's evidence otherwise, that the company officials who hired him at age fifty-one had suddenly developed an aversion to older people less than two years later.")).12 For a plaintiff to prevail under such circumstances, the evidence must answer an obvious question: if the employer is opposed to employing persons with a certain attribute, why would the *Page 190 employer have hired such a person in the first place?13 The record here fails even to suggest an answer.
Indeed, the only age-related evidence in the record was the ages of the persons involved. Potter himself was over 40 years old when Hill was fired, and there was no evidence or testimony that he or anyone else at BCTI had made derogatory ageist comments or otherwise discriminated against older workers, or that Hill's age had proved problematic in any way. And while Hill's testimony raised a question of fact regarding BCTI's explanation for firing her, its probative value in establishing Hill's ultimate claim of age discrimination proved minimal.14
We find as a matter of law that no trier of fact could, after considering such evidence in light of the fact that the same decision makers had authority over both Hill's hiring as well as her firing less than a year later, reasonably conclude that her age was more likely than not a substantial factor in BCTI's decision to terminate her. The trial court thus erred in denying BCTI's JNOV motion, and we affirm the Court of Appeals' reversal of that ruling.15 *Page 191 II Secondly, we evaluate the issue raised in Hill's cross-appeal, namely, whether the trial court was correct to enter a directed verdict in favor of BCTI pursuant to CR 50(a)(1)16 on Hill's claim that BCTI failed to accommodate an alleged disability in violation of RCW 49.60.180(2). While the Legislature did not define "disability,"17 it authorized the Human Rights Commission in RCW 49.60.120(3) to adopt and promulgate rules and regulations to carry out the statute's provisions. Former WAC162-22-040, which was so promulgated, provided in relevant part:
(1) For the purpose of determining whether an unfair practice under RCW 49.60.180, 49.60.190, or 49.60.200 has occurred:
(a) A condition is a "sensory, mental, or physical handicap" if it is an abnormality and is a reason why the person having the condition did not get or keep the job in question. . . . In other words, for enforcement purposes a person will be considered to be handicapped by a sensory, mental, or physical condition if he or she is discriminated against because of the condition and the condition is abnormal.
(b)"The presence of a sensory, mental, or physical handicap" includes, but is not limited to, circumstances where a sensory, mental, or physical condition:
(i) Is medically cognizable or diagnosable;
(ii) Exists as a record or history; or
*Page 192(iii) Is perceived to exist, whether or not it exists in fact.
Former WAC162-22-040(1) (1975), repealed by St. Reg. 99-15-025 (July 12, 1999).18
This court first applied this definition in Phillips v. City ofSeattle, 111 Wn.2d 903, 906-08, 766 P.2d 1099 (1989). Four years later, we noted that its "circular" nature had proved "problematic," since it "requires a factual finding of discrimination because of the condition in order to determine whether the condition is a [`disability'] in the first place." Doe v. Boeing Co., 121 Wn.2d 8, 15, 846 P.2d 531 (1993) (citingPhillips, 111 Wn.2d at 906-08); see also Fell v. Spokane Transit Auth.,128 Wn.2d 618, 637 n. 23, 911 P.2d 1319 (1996) (finding the commission's definition "curious," "circular," and "hardly crystal-like in its clarity").19 In Pulcino v. Fed. Express Corp., 141 Wn.2d 629, 641,9 P.3d 787 (2000), we found the commission's definition "unworkable" in the context of analyzing reasonable accommodation claims and were forced to employ an alternative definition of "disability," requiring that an allegedly disabled plaintiff establish only "that (1) he or she has/had a sensory, mental, or physical abnormality and (2) such abnormality has/had a substantially limiting effect upon the individual's ability to perform his or her job."
To establish a prima facie case of failure to reasonably *Page 193 accommodate a disability under our case law, a plaintiff must show that (1) the employee had a sensory, mental, or physical abnormality that substantially limited his or her ability to perform the job; (2) the employee was qualified to perform the essential functions of the job in question; (3) the employee gave the employer notice of the abnormality and its accompanying substantial limitations; and (4) upon notice, the employer failed to affirmatively adopt measures that were available to the employer and medically necessary to accommodate the abnormality. SeePulcino, 141 Wn.2d at 643; MacSuga v. County of Spokane, 97 Wn. App. 435,442, 983 P.2d 1167 (1999), review denied, 140 Wn.2d 1008 (2000);Martini v. Boeing Co., 88 Wn. App. 442, 458, 945 P.2d 248 (1997),aff'd, 137 Wn.2d 357, 971 P.2d 45 (1999); Goodman v. Boeing Co.,127 Wn.2d 401, 408, 899 P.2d 1265 (1995); Hume, 124 Wn.2d at 667; Doe,121 Wn.2d at 18; Dean v. Mun. of Metro Seattle, 104 Wn.2d 627, 639,708 P.2d 393 (1985).
Here, there is no evidence that BCTI failed to undertake any measure that was medically necessary to reasonably accommodate Hill's physical abnormality. Indeed, the uncontested medical expert testimony was that Hill's asthmatic condition did not make a transfer to BCTI's Southcenter office "medically necessary." Clerk's Papers at 220, 222-23. Washington law does not require employers to provide disabled persons with medically unnecessary accommodations. Pulcino, 141 Wn.2d at 643; Doe,121 Wn.2d at 19. Since the record contains insufficient evidence to make out even a prima facie case of failure to reasonably accommodate a disability, the trial court was correct to adjudicate Hill's disability discrimination claim as a matter of law.20 *Page 194 CONCLUSION Adopting a "hybrid-pretext" interpretation of the United States Supreme Court's third McDonnell Douglas intermediate burden for purposes of state law, we vacate the Court of Appeals' opinion to the extent that it relies on a "pretext-plus" standard. We affirm the Court of Appeals' rulings on different grounds and remand to the trial court for entry of a judgment consistent with this opinion.
ALEXANDER, C.J., SMITH, MADSEN, SANDERS, and IRELAND, JJ., and GUY, J., Pro Tem., concur.