Elliot Gibson, V. Costco Wholesale, Inc. ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
ELLIOT GIBSON,
No. 80976-8-I
Appellant,
DIVISION ONE
v.
UNPUBLISHED OPINION
COSTCO WHOLESALE, INC.,
Respondent,
DOES I through V, inclusive,
Defendants.
APPELWICK, J. — Gibson challenges the trial court’s award of summary
judgment to Costco on his disability discrimination claim. He argues Costco failed
to engage in an interactive process to determine a reasonable accommodation for
his disability before placing him on an unpaid leave. We affirm.
FACTS
Elliot Gibson has worked at the Costco Optical Lab (Lab) in Auburn since
2008. The Lab is one of two that collectively produce all prescription eyewear for
Costco’s North American warehouses. It is a large, airplane hangar-like facility
that operates around the clock. The production floor contains large machinery,
conveyer belts, workers, forklifts, hazardous chemicals, and a dedicated
environmental compliance team. The Lab is divided into several departments
including Stockroom, Surface, Anti-Reflective Coating, and Finish. For the most
No. 80976-8-I/2
part, these departments are not separated by physical barriers; they exist side-by-
side on the production floor.
Gibson began work on the production floor in the Stockroom in 2008. In
2012, he transferred to Finishing. In that position, he worked on the production
floor grinding eyeglass lenses into shape to fit the frame.
In December 2013, Gibson presented Costco with documentation from his
doctor indicating that he was unable to work around loud noises. His doctor
recommended that he be permitted to wear noise cancelling headphones. Costco
had some safety concerns with headphones on the production floor. Nevertheless,
Costco accommodated Gibson’s request. Shortly thereafter, Costco further
accommodated Gibson by facilitating a transfer back to the Stockroom, which is
generally quieter than Finishing.
On November 3, 2014, Gibson presented Costco with documentation from
his doctor that he was “[un]able to be around people [or] loud noises.” His doctor
indicated he would need to be intermittently absent from work for up to two days
per month for the next year. Costco agreed to this request, pursuant to its policy
allowing employees to take two “accommodation days” per month even if they are
unable to cover those days with sick or Family Medical Leave Act (FMLA) time. 29
U.S.C. §§ 2601-2654.
On November 12, 2014, Gibson’s supervisor and another manager had a
meeting with him to clarify his restrictions. In that meeting, Gibson acknowledged
that there were no jobs where he would not be around people, and that he told that
to his doctor. Because of this, Costco placed Gibson on a nine week leave of
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No. 80976-8-I/3
absence with instructions to get further clarification on his restrictions. The
manager documented the meeting on a transitional duty checklist.
On November 20, 2014, a manager sent Gibson a letter seeking further
clarification from his doctor on his inability to work around people. She informed
him that, should he have any difficulty obtaining the records, Costco was willing to
provide a physician to communicate with his doctor at Costco’s expense. She
invited him to contact her directly if he had any questions.
On January 8, 2015, Gibson’s manager sent him another letter informing
him that he had exhausted his FMLA and state law leave and provided dates when
he was anticipated to be eligible for further FMLA or state law leave. Despite his
exhaustion of leave, his manager indicated that he would still be allowed two
excused absences per month due to his documented health condition. He was
instructed to indicate absences taken for this purpose were due to his documented
medical condition when calling out of work. His manager offered to discuss any
further assistance that would help Gibson not miss work, and encouraged him to
reach out to her with any questions. Gibson signed this letter indicating that he
accepted the offered accommodation.
Thereafter, Gibson submitted further documentation from this doctor dated
January 2, 2015. That documentation indicated that Gibson would need
intermittent leave for up to seven days per month. Gibson’s manager sent another
letter on January 8, 2015 indicating that Costco would not be able to excuse more
than two days per month. She indicated that Gibson was able to access personal
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medical leave (PML): a one year job protected leave provided by Costco in addition
to FMLA and Gibson refused to sign that letter.
In November 2015, Gibson submitted further documentation from his doctor
indicating that he was able to work only three days per week, four hours per day.
It also indicated that he could not push or pull any more than 20 pounds, and could
only stand, walk, bend or stoop for up to 3 hours per day. In response, Costco
offered a temporary, part-time assignment in the Stockroom that allowed him to
work within his restrictions. Gibson declined that accommodation. He later
provided additional documentation with further restrictions, including that he was
unable to stand or sit continuously for more than 30 minutes.
On November 17, 2015, Costco offered Gibson a temporary assignment at
the Auburn Humane Society Thrift Shop under Costco’s Interim Community
Employment Program (ICEP). Under the program, Gibson would be able to work
at the thrift store while receiving his full Costco pay and benefits. While working at
the store, his manager checked in with him regarding his physical restrictions and
ability to perform job functions. Gibson worked at the store until February 10, 2016.
At the conclusion of his ICEP assignment, Costco placed Gibson on leave.
On March 17, 2016, Costco conducted a job assessment meeting (JAM)
with Gibson. Costco utilizes JAMs where an employee has medical restrictions on
their ability to perform their job functions. They are designed to clarify restrictions,
determine whether they can be reasonably accommodated, and assess whether
there are open positions that the employee can be reassigned to within their
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No. 80976-8-I/5
restrictions. The meetings generally include the employee, manager, and a neutral
note taker.
At the JAM, Gibson and Costco determined that he was still unable to meet
the essential requirements of his Stockroom job. The Lab had no other open
positions. Gibson was placed on leave until his restrictions changed or until
another position which fit his restrictions became available. These findings were
memorialized in contemporaneous notes, which Gibson signed to indicate his
agreement.
On June 1, 2016, Costco offered Gibson a position as a member services
assistant, and installed a stand/sit desk for him. This position is the only position
in the Lab that does not require significant physical strain. The position is
nevertheless demanding. It involves working to resolve problems with incomplete
or erroneous eyeglass orders. Costco has high standards for the prompt resolution
of these issues. Its goal is to have all eyeglass orders processed within 48 hours.
The position also involves managing phone traffic to and from the Lab, monitoring
building access, and greeting visitors. Costco expects all phone calls to be
answered within three rings. To accomplish this, all Member Services employees
are expected to answer calls. When someone is unable to answer a call, it will
increase the workload for the other employees. Costco believes that “reliable
attendance and cognitive focus and engagement” are essential functions of the
job.
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No. 80976-8-I/6
On December 28, 2017, Gibson requested another leave to address
“auditory hallucinations.” At that time, Gibson had accrued 205 hours of FMLA
leave. After those hours were exhausted, Costco allowed him to continue leave
under its PML policy. He remained on PML leave for 12 weeks.
On March 26, 2018, Gibson was cleared to return to work, but at a reduced
schedule of five hours per day, four days per week. Costco held another JAM with
Gibson the next day. At that meeting, Costco offered Gibson a Temporary
Transitional Duty (TTD) position in Member Services that allowed his reduced
schedule. Costco offers TTD when an employee has restrictions that prevent them
from performing essential functions of their job. It is essentially a temporary, light-
duty assignment that removes one or more essential function of the employee’s
job. Costco generally limits TTD to 12 weeks. Gibson’s TTD in this instance was
for a total of 12 weeks. Gibson accepted the offer.
During this TTD, Costco noticed that, in addition to his reduced hours,
Gibson was taking a number of additional breaks. Often, he would simply leave
his workstation without informing anyone, sometimes for long periods of time,
prompting complaints from other employees.
When asked about the breaks, Gibson indicated that he required breaks as
an additional medical accommodation. Costco management met with him to
discuss the accommodation the following day, April 26, 2018. Costco indicated
that Gibson would need to provide medical documentation of his need for this
accommodation. Still, Costco allowed the breaks pending Gibson providing the
necessary documentation.
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No. 80976-8-I/7
Gibson provided medical documentation May 1, 2018. The documentation
Gibson provided indicated only that he should “take breaks as needed 5-20
minutes to manage symptoms.” Costco wanted more information, including what
the anticipated frequency of the breaks would be, whether they could be
scheduled, how long the accommodation would be necessary, and whether a
different accommodation would suffice. Costco asked Gibson for further
clarification on the note, but he was unable to provide any.
On May 5, 2018, Costco management conducted another meeting with
Gibson to determine if it could continue to accommodate Gibson’s restrictions. At
that meeting, it was determined that Gibson would be allowed to continue on
transitional duty until May 31, working his reduced schedule and taking breaks as
needed to manage his symptoms. Gibson signed a letter indicating his acceptance
of the offer. On May 17, the TTD was extended to July 5, 2018.
During this TTD, Costco informally tracked Gibson’s breaks. It found the
breaks to be unpredictable in frequency and duration. During his 5 hour shift, he
would take 2 to 3 breaks, often approaching or exceeding 20 minutes, sometimes
30 minutes. On multiple occasions, the breaks during his shift totaled more than
an hour. Gibson often did not tell others that he was leaving his station, despite
policy and practice to do so.
On June 20, 2018, Costco management met with Gibson to discuss the
upcoming end to his TTD. Management informed him that, when his TTD ended
he would need to resume a full-time schedule and provide medical documentation
of his ability to do so. Gibson claims that management termed this as a “full
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No. 80976-8-I/8
release,” which Gibson interpreted to mean able to work a full-time schedule. An
internal management e-mail termed it a “full duty release.” The sender of that e-
mail indicated that the “full duty release” e-mail was a standard message sent to
management whenever an employee was nearing the end of a TTD period.
Nobody from Costco management told Gibson that he would need an
unconditional release in order to return to work.
Costco provided testimony from its designated corporate officer that it has
no policy of requiring a full release at the end of TTD. Instead, the practice is to
require an employee coming off of TTD to be able to perform all essential job
functions.
On June 22, 2018, Gibson presented Costco with a note from his doctor
indicating he could “return to work immediately.” The note did not indicate any
restrictions on Gibson’s ability to work. That day, Gibson worked a full eight hour
shift but still took periodic unscheduled breaks. When asked if he still required
unplanned breaks on a possibly hourly basis, Gibson indicated that he did. Gibson
claims that management informed him that if he still required these breaks, he
would be unable to return to work, and instead would be offered an unpaid leave
of absence. Gibson was then placed on leave.
On June 22 and 23, 2018, Costco management e-mailed Gibson, but
received no response. Management also called and left a message, but he did not
respond. On July 4, 2018, Gibson sent an e-mail to Costco reminding it that he
had questions and asking for further details on why he had been placed on leave.
Management responded the next day. Management provided more detailed
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No. 80976-8-I/9
written responses to his questions on December 18, 2018. On June 29 and July
5, Costco sent Gibson leave paperwork to share with his doctor, but he did not
respond.
On July 11, 2018, a representative of Costco’s third party accommodations
assistance provider, Briotix Health Limited Partnership, called Gibson and offered
assistance obtaining medical documentation to move the process along. Gibson
declined assistance. Briotix called again on July 17 and left a message. Gibson
did not respond.
On July 21, 2018, Gibson provided a work restriction form—dated July 12—
which set forth several work restrictions. The form indicated that Gibson still
required breaks of 5-15 minutes hourly as needed. The form indicated that this
would be required at a minimum until October 31, or until “treatment success.”
The form also indicated that he was limited in his ability to perform under stress,
maintain composure, work with others, and respond to feedback and criticism.
Costco determined it could not accommodate this restriction for this amount of
time, and placed Gibson on leave until October 31, or until his restrictions changed,
whichever came first.
On July 25, 2018, after unsuccessfully trying to reach Gibson multiple times
by phone, Costco sent Gibson a letter to notify him of the status of his employment.
The letter indicated that Costco was unable to accommodate his restrictions at that
time, that his leave was extended to October 31, 2018, and asked him to notify
Costco if his restrictions changed.
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No. 80976-8-I/10
On July 26, 2018, Gibson filed a complaint against Costco with the Equal
Employment Opportunity Commission (EEOC). On October 8, 2018, Gibson
commenced this suit in King County Superior Court, alleging that Costco had
violated the Washington Law Against Discrimination1 (WLAD).
On October 25, 2018, Gibson e-mailed Costco in anticipation of the end of
his leave of absence. He indicated that he was ready to work full-time with the
same break restrictions. Costco replied that if he was ready to return to work,
Costco needed a medical release, “with or without restrictions.” Gibson replied
that Costco should be able to use the same paperwork he had submitted at the
start of his leave.
On November 9, 2018, Costco held another JAM meeting with Gibson to
discuss further job accommodations. At the meeting, the parties discussed
Gibson’s continued need for breaks during the workday. Costco indicated that the
breaks posed difficulty because there were not enough employees to answer the
phones when he was not at his workstation. Costco asked Gibson to go back to
his medical providers for further clarification on his needed accommodations.
On December 12, 2018, Gibson submitted an updated medical form on his
restrictions. It said,
Elliott has difficulty handeling [sic] stressful social interactions and
evaluations . . . He has been practicing exercises taught to him by
psychologist [sic]. He is ready to return to work but will need time to
practice using his new mental health tools when stressors arise. He
would benefit from being allowed to take a 5-15 minute break every
hour. He may not need breaks this often, but knowing this is an
1
Chapter 49.60 RCW.
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No. 80976-8-I/11
option will decrease his overall stress level helping him be more
successful at work.
The parties held another JAM on December 28, 2018. At the
meeting, it was determined that Gibson would be allowed to come back to
work on a trial basis. During this trial period, Gibson was instructed to notify
managers when he took breaks so they could be logged. Management
confirmed to Gibson that their willingness to allow him back to work arose
from their sense from his new documentation that his condition was
improving. Costco indicated their sense that the frequency and duration of
Gibson’s required breaks had lessened and would continue to do so over
time.
On January 2, 2019, Gibson returned to work in the Member
Services Department. He still took breaks, but they were of less frequency
and duration than they had been prior to his leave.
In April 2019, Gibson submitted medical documentation indicating he
may need to return to a part-time schedule and needed to take longer
breaks. Costco agreed to a reduced schedule and allowed him to take
breaks as needed. Gibson began having attendance issues as well,
compiling unexcused absences sufficient to trigger discipline. Costco did
not formally discipline Gibson, opting instead to discuss the issue with him
informally.
Gibson requested another leave of absence on October 10, 2019.
Costco granted this request. Costco claims Gibson is still employed at
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No. 80976-8-I/12
Costco, and Gibson does not dispute this. It is unclear from the record
whether he is on leave or working regularly at this time.
All the while, this lawsuit has continued. On November 15, 2019, the
parties each requested summary judgment. The trial court denied Gibson’s
motion and granted summary judgment for Costco.
Gibson appeals.
DISCUSSION
Gibson argues that Costco failed to adequately engage in an interactive
process to accommodate his disability. Specifically, he takes issue with Costco’s
decision to place him on leave in June 2018. He claims this decision was based
on Costco’s unlawful policy requiring employees to provide a “full release” at the
end of a transitional duty assignment. So, he argues, the trial court erred in
granting summary judgment for Costco.2
I. Washington Law Against Discrimination
The WLAD makes it unlawful for an employer to discriminate against an
employee because of the presence of any sensory, mental, or physical disability.
RCW 49.60.180(3). It requires an employer to reasonably accommodate an
2
Gibson’s original complaint alleged violations of WLAD and the
Washington Family Leave Act (WFLA), former chapter 49.78 RCW, repealed by
LAWS OF 2006, ch. 59, § 23, LAWS OF 2017, ch. 5, § 98. Costco moved for summary
judgment on both claims. The trial court granted the motion. Gibson assigns error
to the trial court’s grant of summary judgment but provides no argument regarding
his WFLA claim. Appellants are required to provide argument in support of the
issues presented for review, including citations to the record. RAP 10.3(a)(6).
Failure to provide this argument renders the issue undeserving of appellate
consideration. Holland v. City of Tacoma, 90 Wn. App. 533, 537-38, 954 P.2d 290(1998). We proceed to consider whether the trial court erred in granting summary
judgment to Costco on Gibson’s WLAD claim.
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No. 80976-8-I/13
employee with a disability unless the accommodation would pose an undue
hardship. Frisino v. Seattle Sch. Dist. No. 1, 160 Wn. App. 765, 777, 249 P.3d
1044 (2011). Generally, the best way for the employer and employee to
determine a reasonable accommodation is through a flexible interactive
process. Id. at 779. The duty to accommodate is continuing. Id. at 781.
Employers may wish to test one mode of accommodation, and then test
another. See id. “An employer’s previously unsuccessful attempts at
accommodation do not give rise to liability if the employer ultimately provides a
reasonable accommodation.” Id.
II. Standard of Review
We review summary judgment decisions de novo. Frausto v. Yakima HMA,
LLC, 188 Wn.2d 227, 231, 393 P.2d 776 (2017). Summary judgment is
appropriate where there are no genuine issues of material fact and the moving
party is entitled to judgment as a matter of law. CR 56(c). All facts and reasonable
inferences must be interpreted in the light most favorable to the non-moving party.
Sabey v. Howard Johnson & Co., 101 Wn. App. 575, 582, 5 P.3d 730 (2000).
WLAD is to be construed liberally to effectuate its purpose of remedying
discrimination. Clipse v. Commercial Driver Servs., Inc., 189 Wn. App. 776, 790,
358 P.3d 464 (2015). Because of this, summary judgment is often inappropriate
in WLAD cases. Frisino, 160 Wn. App. at 777. But, summary judgment is still
appropriate where the plaintiff fails to raise a genuine issue of material fact on one
or more of the prima facie elements of a WLAD claim. Id.
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No. 80976-8-I/14
To state a prima facie case for failure to accommodate under WLAD,
Gibson must show:
(1) That he had an impairment that is medically recognizable or
diagnosable or exists as a record or history; and
(2) That . . .
(a) [he] gave [Costco] notice of the impairment . . . ; . . .
....
(3) That . . .
(a) the impairment has . . . a substantially limiting effect on
(i) his . . . ability to perform his . . . job; . . .
....
(4) That he would have been able to perform the essential functions
of the job in question with reasonable accommodation; and
(5) That the employer failed to reasonably accommodate the
impairment.
6A WASHINGTON PRACTICE: WASHINGTON PATTERN JURY INSTRUCTIONS: CIVIL
330.33, at 364-65 (7th ed. 2019).
It is uncontested that Gibson has a disability which Costco knows prevents
him from performing the essential functions of his job absent accommodation. The
parties contest only elements (4) and (5).
III. June Leave Determination Did Not Violate WLAD
A. No Policy of Automatic Leave
Gibson claims that Costco automatically denied Gibson’s request for
accommodation at the end of his 12 week TTD period without engaging in any
actual discussion with him regarding his job functions, the potential impact of his
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No. 80976-8-I/15
requested accommodation, and alternative accommodations that could have
allowed him to perform his job duties. This claim mischaracterizes the record.
Gibson requested leave in December 2017. He was granted 12 weeks
leave.3 When that leave expired in March 2018, he was medically cleared to work
only five hours per day, four days per week. Costco offered and Gibson accepted
a TTD which allowed him to work under those medical restrictions for 2 weeks.
The TTD was later extended by agreement to May 31 and then again to July 5.
This part-time TTD is not a form of required accommodation. See Davis v.
Microsoft Corp., 149 Wn.2d 521, 534-36, 70 P.3d 126 (2003) (employer is not
required by WLAD to provide a reduced work schedule as an accommodation).
On June 20, 2018, Costco management met with Gibson to discuss the
upcoming end to his TTD. Gibson needed medical clearance to return to full-time
employment and perform essential job functions. Gibson had not provided medical
clearance to that point. He was informed that without it, he would be placed on
leave.4 Whether Gibson was regarded as still being on leave during his TTD or
being returned to leave when the TTD expired, it is undisputed that he had not
been reinstated and could not be without medical clearance. This was a correct
statement of law and fact, not an inappropriate automatic leave policy.
3
At this time, Gibson had roughly 205 hours of FMLA leave available. He
exhausted those hours and covered the remainder through Costco’s PML policy.
4
Gibson was ineligible for FMLA or state law leave at this time point in time.
His leave was based solely on Costco’s internal PML policy.
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No. 80976-8-I/16
B. No Policy of Full Release after TTD
Gibson claims that before his 2018 TTD ended, Costco specifically
instructed him to provide a full-time work release from his doctor, not a full-duty
release. He claims he was nonetheless placed on an unpaid leave solely because
the release he provided was for a return to work full-time rather than full-duty. The
record does not support this claim.
Gibson could be reinstated to his full-time job answering calls in member
services only if medically cleared to perform all the essential functions of the job.
Costco never claimed he must do so without accommodation of his disability. As
of the June 20 meeting, he had not provided that clearance nor identified the
accommodations necessary to return full-time.
Two days later, Gibson produced a doctor’s authorization to return to full-
time work. No limitation or accommodations were noted. On June 22, Gibson
reported to member services to work a normal shift. He took unscheduled breaks
throughout the day. He was told this was not acceptable and placed on leave.
The record is clear that he had not provided medical documentation of his current
accommodation needs, and had not obtained Costco’s agreement to such
accommodations. Only on July 21 did Gibson produce medical documentation of
accommodations needed to return to his job full-time.5 Costco did not violate the
WLAD by not reinstating him without medical clearance nor by placing him on
leave as a result. The full-duty claim lacks factual merit.
5
The work restriction form was dated July 12. It indicated that Gibson would
require breaks “up to 5-15 min. hourly,” and that the accommodation would be
needed until “[October 31, 2018] or treatment success.”
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No. 80976-8-I/17
C. No Failure to Interact on Accommodation
Gibson argues Costco failed to engage in the interactive process before
placing him on leave in June 2018. He asserts that unless requested by the
employee or to prevent discharge, a forced unpaid leave of several months cannot
be considered a reasonable accommodation. To accommodate, the employer
must affirmatively take steps to help the disabled employee continue working—
either at their existing position or through attempts to find a position compatible
with their skills and limitations. Griffith v. Boise Cascade, Inc., 111 Wn. App. 436,
442-43, 45 P.3d 589 (2002).
Costco had been engaging with Gibson since 2013. Costco was engaging
in the interactive process on June 20, 2018 when it met with Gibson, and on June
22 when Gibson worked an additional shift. He was placed on leave because he
had not responded in that process with the necessary medical information and, as
a result, had not achieved agreed upon accommodations. Costco reached out to
him repeatedly during June and July and continued reaching out until December
when it received revised medical documentation of accommodation needs that it
believed allowed Gibson to return to work. The record is also clear that Gibson
did not respond to all of Costco’s attempts to reach him. The record is clear that
the reason Gibson was placed on leave in June and continued on leave for several
months was not a failure of Costco to engage in the interactive process.
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No. 80976-8-I/18
IV. The Accommodation Requested Was Not Reasonable
Gibson argues that, at the time of his leave in June 2018, he was able to
perform the essential functions of his job. Costco counters that “reliable
attendance” is an essential function, which Gibson was unable to provide. Gibson
argues that he did not have attendance issues and that his breaks improved his
cognitive focus.
An “essential function” is a job duty that is fundamental, basic, necessary,
and indispensable to filling a particular position. Davis, 149 Wn.2d at 533. The
ability to work a particular schedule can be an essential function. See id. at 535-
36. Employers are not required to eliminate essential job functions to
accommodate a disability. Pulcino v. Fed. Express Corp., 141 Wn.2d 629, 643, 9
P.3d 787 (2000), overruled in part on other grounds by McClarty v. Totem Elec.,
157 Wn.2d 214, 137 P.3d 844 (2006). Nor is an employer required to reassign
essential job functions to other employees. Id. at 644.
In March 2018, Gibson submitted medical clearance to return from leave for
five hours a day, four days a week. That became the basis for his TTD. On May
1, 2018 Gibson submitted medical documentation indicating that he “[t]ake breaks
as needed. 5-20 minutes to manage symptoms.” Though Gibson provided a
medical clearance to return to work full-time on June 22, it did not update any
accommodation needs. The medical accommodation information provided to
Costco was not updated again until July 21, 2018. It requested 5 to 15 minute
breaks per hour, through October 31 or until treatment success.
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No. 80976-8-I/19
Gibson’s position involved answering phones and greeting visitors to the
Lab. These functions require Gibson to be at his workstation. Costco introduced
evidence that “reliable attendance and cognitive focus and engagement” are
essential functions of Gibson’s Member Services position. Gibson explains the
purpose of the extra breaks he sought were to afford him time to engage in guided
meditation, allowing him to “think more clearly” and “focus better and for longer
periods of time”—an outcome clearly related to and important for Gibson’s
“cognitive focus and engagement” requirement. But, the purpose of the breaks
and the need for such breaks is not in question. What is at issue is whether Gibson
was performing the essential functions of his job if he was taking these breaks.
Gibson argues that he did not have attendance issues. He equates
“attendance” with showing up to his scheduled shift. But, the issue is not whether
showed up for work. The issue is whether he was capable of performing essential
functions on a full-time basis with the requested accommodation, while he was
present for a shift. If he is not, the requested accommodation is not reasonable.
Gibson is unable to perform an essential function while his breaks take him
physically away from his workstation. The record is clear that the amount of break
time accommodation he has requested was 5 to 20 minutes as needed. Yet, the
weeks immediately prior to the June leave, while he was working a 5 hour shift on
his TTD, his breaks often approached or exceeded the maximum duration,
sometimes being up to 30 minutes long. More than once, his breaks (in total)
exceeded 1 hour of his already-reduced 5 hour shift. The amount of time he was
on break during the TTD was very significant. If viewed as a requested
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No. 80976-8-I/20
accommodation, it is equivalent to converting a full-time position to a part-time
position. WLAD does not require an employer to make such an accommodation.
See Davis, 149 Wn.2d at 535-36. And, in June, Gibson had not provided Costco
any medical documentation or even a personal assurance that he would be away
from his work station less than he had been demonstrating during his part-time
shifts on the TTD.
Gibson argues that his June leave was not about essential functions,
because he was allowed to return to work with what he describes as the same
breaks accommodation Costco had rejected in June. But, the new breaks
restriction differed in ways that were significant to Costco. First, the medical
documentation describing this restriction indicated that Gibson had developed new
coping techniques. Second, the new medical documentation indicated that the
breaks “would benefit” Gibson rather than being “needed.” Third, the
documentation indicated that the breaks may not even be needed, but that having
them available would decrease Gibson’s symptoms. Taken together, Costco
believed this new documentation showed meaningful improvement that Costco
thought could continue if Gibson were allowed to go back to work.
V. Conclusion
The evidence, viewed in the light most favorable to Gibson, fails to raise a
genuine issue of material fact as to whether Costco reasonably accommodated
him or engaged in an interactive process with him, or whether he would have been
able meet the essential functions of his position with reasonable accommodation.
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No. 80976-8-I/21
He fails to make a prima facie case under WLAD. The trial court did not err in
granting summary judgment for Costco.
We affirm.
WE CONCUR:
21