Aaron "aj" Mitchell, V. King County ( 2021 )

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
AARON “AJ” MITCHELL,
DIVISION ONE
Appellant,
No. 82347-7-I
v.
UNPUBLISHED OPINION
KING COUNTY,
Respondent.
DWYER, J. — Aaron Mitchell appeals from the trial court’s order granting
King County’s motion for summary judgment with regard to his claims of failure to
accommodate and disparate treatment. Mitchell asserts that the trial court erred
by granting King County’s motion for summary judgment on the failure to
accommodate claim for two reasons. First, he argues that genuine issues of
material fact exist as to whether he was qualified to perform the essential
functions of his job. Second, he claims that factual disputes exist as to whether
King County failed to affirmatively adopt available measures that were medically
necessary to accommodate his conditions.
With regard to the disparate treatment claim, Mitchell contends that the
trial court erred by granting King County’s motion for summary judgment both
because genuine issues of material fact exist as to whether he was doing
satisfactory work and because King County medically separated him under
circumstances that raise a reasonable inference of unlawful discrimination.
No. 82347-7-I/2
Because Mitchell fails to establish an entitlement to relief on any of his
claims, we affirm.
I
In 2015, Aaron Mitchell was hired as a preventative maintenance
specialist, or “oiler,” for the solid waste division of King County’s Department of
Natural Resources and Parks (the Department). Mitchell’s work as an oiler
included pressure washing, changing the oil on heavy equipment, applying oil
filters to equipment, and operating an oil truck.
On May 30, 2018, Mitchell injured his thumb while he was changing an oil
filter. Subsequently, his thumb became infected. Mitchell went on medical leave
for approximately one month.
On July 10, 2018, Mitchell’s supervisor asked Mitchell to demonstrate how
he had injured his thumb. During the demonstration, Mitchell fell into an
inspection pit and injured his back. Mitchell then went on medical leave for
approximately two months.
On September 5, 2018, Mitchell searched for a tool that was located
inside a cabinet. While Mitchell was searching for the tool, the cabinet fell on
Mitchell and he sustained an injury to his shoulder. Again, Mitchell went on
medical leave. He never returned to work after this injury.
Following Mitchell’s shoulder injury, King County received numerous
communications from his healthcare providers regarding his physical and mental
health. In an activity prescription form, dated September 10, 2018, Dr. Kodi
MacLachlan stated that Mitchell was “not released to any work from . . . 9/10/18
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No. 82347-7-I/3
to 9/26/18.” This activity prescription form regarded Mitchell’s thumb, back, and
shoulder injuries.
Next, in an activity prescription form dated September 26, 2018, Dr.
MacLachlan stated that Mitchell “may perform modified duty . . . from . . . 9/26/18
to 10/11/18.”
However, on October 2, 2018, King County received a letter from Dr. Triet
Nguyen, which provided, in full:
To Whom It May Concern:
Aaron Mitchell was seen in my clinic on 9/28/18. He is excused
from work from 9/1/18 to 12/31/18.
According to a declaration by Lisa Aweeka, a senior human resources
analyst for the Department, Mitchell’s paid leave was set to exhaust on October
19, 2018. On October 12, Aweeka and Jamie Christensen, a disability services
consultant for the King County Department of Human Resources, met with
Mitchell “to discuss his leave status, leave without pay as an accommodation,
and the process and information required to approve leave without pay after his
protected leave expired.” During this meeting, according to a declaration by
Christensen, Christensen provided Mitchell with “a letter and medical
questionnaire for his healthcare provider to complete and return to” King County.
In a medical questionnaire dated October 15, 2018, Dr. Nguyen stated
that Mitchell was excused from work until December 31, 2018, because Mitchell
was experiencing “[d]epression and anxiety. Feels hopeless. Having paranoid
thoughts about co-workers.” This medical questionnaire asked whether there
were “any reasonable accommodations that may be considered that would allow
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No. 82347-7-I/4
Mr. Mitchell to perform all of his essential functions as a Prevention Maintenance
Specialist.” Dr. Nguyen responded to this question by stating “No.” Dr. Nguyen
did, however, answer in the affirmative to the following question: “Will Mr. Mitchell
be able to return to work and perform all the essential functions of his Prevention
Maintenance Specialist position, with or without reasonable accommodation?”
Dr. Nguyen stated that Mitchell’s “expected to return to work” date was
December 31, 2018. Finally, Dr. Nguyen stated that Mitchell “has been dealing
with racism and a hostile work environment.”
On December 24, 2018, Aweeka sent an e-mail message to Mitchell to
confirm that he was released to return to work on December 31. Mitchell did not
respond before December 31. Rather, Mitchell responded on January 1, 2019,
stating that he was “currently seeking further doctor treatment for [his] Physical
and Mental health” and that he was “still stressed” and “very concerned that
going back too soon might cause [him] additional problems and aggravate [his]
emotional distress.”
On January 2, 2019, Aweeka responded to Mitchell’s e-mail message and
stated, in part, that, “[i]n order to consider additional continuous leave beyond
12/31/18, I will need to receive an update from your healthcare professional no
later than end of business day, Monday, January 7, 2019.” Mitchell did not
respond to this e-mail message.
On January 11, 2019, Aweeka sent another e-mail message to Mitchell in
which she requested further information “on or before end of Business day,
Wednesday January 23, 2019.”
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No. 82347-7-I/5
That same day, Christensen sent a letter to Dr. Nguyen wherein
Christensen explained that Mitchell did not return to work on December 31, 2018,
and that the Department “requires an update from you regarding if Mr. Mitchell
will be released to return to work (on a full-time basis) and whether they can offer
any reasonable accommodations to help him perform the essential functions of
his job upon his return.” This letter also stated that the Department “will also
consider providing another extension of medical leave as an accommodation if it
is reasonable, medically necessary, and a definitive return to work date is
provided.” This letter requested that Dr. Nguyen respond by January 23, 2019.
The record does not contain a response from Dr. Nguyen.1
On January 22, 2019, Mitchell sent an e-mail message to Aweeka in
which he stated that he was “currently seeking further Treatment” and that he
had “an appointment with [his] doctor on the 25th.” Subsequently, Mitchell sent
Aweeka a letter from Joshua Canady, a licensed mental health counselor, in
which Canady stated that “Mitchell has an intake appointment for outpatient
mental health counseling scheduled with me for February 21st, 2019.”
In a letter dated February 7, 2019, Aweeka informed Mitchell that, “given
the most recent information from Mr. Canady, King County is granting an
extension of your accommodation [leave of absence without pay] from January 1,
2019 through March 1, 2019.”
Thereafter, Canady diagnosed Mitchell with posttraumatic stress disorder
and major depressive disorder. In a medical questionnaire dated March 1, 2019,
1King County’s response brief states that “King County received no further information
about Mitchell’s non-occupational condition from Dr. Nguyen.” Br. of Resp’t at 11.
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No. 82347-7-I/6
Canady stated that Mitchell required “at least 45 days” off from work “due to
triggers at work.”
With regard to Mitchell’s physical conditions, in an activity prescription
form dated January 31, 2019, Dr. Taylor Cox, a chiropractor, stated that
Mitchell’s prognosis was “poor for return to work.” On February 12, Christensen
sent a letter and medical questionnaire to Dr. Cox in which she requested, by
March 1, further information regarding Mitchell’s physical conditions. On March
26, Dr. Cox completed the medical questionnaire, wherein he stated that
“[p]sychosocial factors are preventing full and complete recovery” and that
“further chiropractic treatment will not be curative.” Dr. Cox also stated that
Mitchell’s return to work “is dependent upon psychosocial limitations, as
independent from physical accommodations,” and that the tasks required by
Mitchell’s job “would likely exceed [his] pain threshold, given his difficulty with job
training exercises with physical therapy.” Additionally, Dr. Cox stated that
Mitchell’s job “is likely too demanding for him, and [he] will likely require new job
training/placement.”
On April 12, 2019, Pat McLaughlin, the division director of King County’s
Solid Waste Division, informed Mitchell by letter that King County would not
accommodate an indefinite leave of absence and that the County was proposing
a medical separation. In this letter, McLaughlin informed Mitchell that a
Loudermill2 hearing would take place on April 29, 2019. The letter specified that
2 Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 105 S. Ct. 1487, 84 L. Ed. 2d 494(1985).
6
No. 82347-7-I/7
Mitchell could attend either in person or via telephone and that Mitchell could
submit further documentation regarding the proposed medical separation.
On April 19, 2019, Mitchell sent to Christensen an e-mail message, which
provided, in full:
Hello Jamie,
I’ve started the process of enrollment into a different outpatient
program.
I located an OutPatient program (IOP) (Bayside Marin RTC & IOP)
It last [sic] 10 weeks long in San Rafael, CA.
Neurostim treatment in Lakewood,WA (The TMS treatment is 30
Days long) I will enroll in the TMS therapy after Bayside treatment
is complete.
90 days Starting from May 17, 2019 Enrollment – Aug 20th 2019
(Mon, Wed, Fri 10am – 1pm) or evenings
Respectfully AJ
On April 24, 2019, Christensen responded to Mitchell’s e-mail message
and asked whether Mitchell planned to attend the scheduled Loudermill hearing.
On April 26, Mitchell responded and stated that he “won’t be attending the
loudermill meeting.” In a later declaration, Mitchell explained that he could not
attend the hearing because he “had legal obligations on the same day.”
On April 29, 2019, Mitchell’s union representative, Al Cummins, attended
the Loudermill hearing on Mitchell’s behalf. In a deposition, Aaron Jeide, a
human resources manager for the Solid Waste Division, stated that “the union
was both aware and consenting that the Loudermill continue, even though Mr.
Mitchell wasn’t attending.” Glynda Steiner, the deputy division director of the
Solid Waste Division, presided over the Loudermill hearing. Steiner reviewed the
details outlined in the letter that was sent to Mitchell in which McLaughlin
recommended that Mitchell be medically separated. According to Steiner, “the
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No. 82347-7-I/8
letter was . . . thorough and covered all of . . . the concerns that [she] had.” 3
Cummins did not provide any additional information regarding Mitchell’s
proposed medical separation.
3
This letter provided a summary of the reasons why the Solid Waste Division was
recommending that Mitchell be medically separated as follows:
Since June 2018 you have been on intermittent Family Medical Leave Act
(FMLA) leave due to your current medical conditions. On September 7, 2018,
you were placed on continuous FMLA medical leave and you have remained off
work since then. On October 22, 2018, your protected leave under the
FMLA\KCFML exhausted. Additional leave as an accommodation was granted
from October 23, 2018, through December 31, 2018; with and extension through
March 1, 2019, in the hopes that you would receive the necessary medical
treatment to be able to return to work.
The following is a summary of the most recent medical documentation that we
have received:
 September 28, 2018, medical note stated you were excused from work
from September 1, 2018, through December 31, 2018
 October 15, 2018, completed medical questionnaire stated that you
would be able to return to work and perform all essential functions of
your Prevention Maintenance Specialist position with or without
accommodation by December 31, 2018
 January 31, 2019, dated Activity Prescription Forms noted a poor
prognosis for returning to work at your job of injury at any date
 March 1, 2019, completed medical questionnaire stated you needed to
remain off of work for at least 45 days and your symptom reduction
treatment was estimated to take anywhere from 3-12 months. Your
provider was not able to “give analysis of employment capacity.”
 March 26, 2019, completed medical questionnaire from your Attending
Physician stated that your “job of injury is likely too demanding for [you]
and [you] will likely require new job training/placement.” Your attending
physician also noted that “reviewing job analysis reveals lifting,
push/pulling, and carrying that would likely exceed [your] pain threshold,
given [your] difficulty with job training exercises with physical therapy.”
He further noted that you cannot perform the physical activities described
in the Preventative Maintenance Specialist job analysis based on
permanent limitations which he described as being “prognosis for RTW
at JOI is poor, [you] require medical management of biopsychological
factors influencing pain and RTW.”
Additionally, you met with SWD Sr. Human Resource Analyst Lisa Aweeka and
Disability Services Consultant Jamie Christensen on Thursday, March 28, 2019.
At this meeting, you did not provide any updated information on your ability to
return to work. You noted that answers regarding your ability to return to work
should be directed to your treatment providers. Ms. Aweeka and Ms.
Christensen reviewed the medical documentation they had received with you and
explained that your providers were unable to provide any definitive return to work
date. King County cannot accommodate an indefinite leave of absence.
Therefore, SWD is proposing your non-disciplinary medical separation in
accordance with the Reasonable Accommodation in Employment for Individuals
with Disabilities Policy (PER-22-4-3-EP).
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No. 82347-7-I/9
In a letter dated May 6, 2019—which was eight months after Mitchell had
injured his shoulder—Steiner informed Mitchell that the “Solid Waste Division is
upholding the proposed non-disciplinary medical separation of [his] employment”
and that “[t]he separation is effective as of the date of this letter.”4 In this letter,
Steiner also informed Mitchell that Christensen “completed a review of [Mitchell’s]
transferrable skills and medical restrictions on April 8, 2019, and unfortunately
could not find any open, non-promotional positions for which [Mitchell] would be
minimally qualified to perform at this time.” In addition, this letter stated that
Mitchell was eligible for King County’s reassignment program for one year from
the date of medical separation.5
After Mitchell was medically separated, he did not contact anyone at King
County about utilizing the reassignment program.
4 On May 3, 2019, a doctor performed an independent medical examination of Mitchell’s
thumb, back, and shoulder injuries for three workers’ compensation claims. The reports for these
examinations concluded that, with regard to these three injuries, Mitchell was capable of returning
to his position as an oiler as of May 3. However, these reports were mailed to King County on
May 15 and 16. Thus, King County did not receive these reports until after Mitchell was medically
separated. In any event, the independent medical examination did not evaluate Mitchell’s mental
health conditions.
5 In particular, this letter provided:
As a result of the decision to medically separate you, you are eligible for King
County’s Reassignment Program which provides eligible individuals who can no
longer perform the essential functions of their King County position due to a
disability, but can work in another capacity with six months of priority placement
into non-promotional job vacancies for which they meet the minimum
qualifications. Eligible individuals can start Reassignment Program services
immediately, or no later than one year from the effective date of medical
separation. King County Department of Natural Resources and Parks requested
that the Reassignment Program Coordinator conduct a preliminary initial review
of your transferrable skills and medical restrictions to see if you could
immediately be placed into another open King County position you qualify for.
Jamie Christensen completed a review of your transferrable skills and medical
restrictions on April 8, 2019, and unfortunately could not find any open, non-
promotional positions for which you would be minimally qualified to perform at
this time that fell within your medical restrictions. Please contact Ms.
Christensen if you have questions or would like additional information on the
Reassignment Program.
9
No. 82347-7-I/10
On August 16, 2019, Mitchell filed a complaint in the King County Superior
Court. In this complaint, Mitchell alleged that King County was liable to Mitchell
for racial discrimination, retaliation, harassment, and religious discrimination.
Mitchell subsequently filed an amended complaint, reasserting his original claims
and further alleging that King County was additionally liable for wrongful
termination in violation of public policy. King County moved for summary
judgment with regard to the claims alleged in the amended complaint. The trial
court granted this motion.
Before the trial court granted King County’s motion for summary judgment
with regard to the claims set forth in Mitchell’s amended complaint, Mitchell filed
a second amended complaint, which added claims of failure to accommodate
and disparate treatment under the Washington Law Against Discrimination
(WLAD).6 King County filed a second motion for summary judgment with regard
to these two additional claims. The trial court granted King County’s second
motion for summary judgment.
Mitchell appeals.
II
Mitchell first asserts that the trial court erred by granting King County’s
motion for summary judgment with regard to his failure to accommodate claim.
According to Mitchell, genuine issues of material fact exist as to whether he was
qualified to perform the essential functions of his job and whether King County
6 Ch. 49.60 RCW.
10
No. 82347-7-I/11
failed to affirmatively adopt available measures that were medically necessary to
accommodate his conditions. We disagree.
A
We review de novo a trial court’s order granting summary judgment.
Gibson v. Costco Wholesale, Inc., 17 Wn. App. 2d 543, 555, 488 P.3d 869,
review denied, 497 P.3d 391 (2021). Summary judgment is appropriate when
there is no genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. CR 56(c). On review, we view all facts and their
reasonable inferences in the light most favorable to the nonmoving party.
Gibson, 17 Wn. App. 2d at 555-56.
WLAD is to be construed liberally to effectuate its purpose of remedying
discrimination. Gibson, 17 Wn. App. 2d at 556. As a result, “summary judgment
is often inappropriate in WLAD cases.” Gibson, 17 Wn. App. 2d at 556.
However, “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.” Gibson, 17 Wn. App. 2d at 556.
B
To establish a prima facie case of failure to accommodate a disability, an
employee 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.”
11
No. 82347-7-I/12
Davis v. Microsoft Corp., 149 Wn.2d 521, 532, 70 P.3d 126 (2003) (italicization
omitted) (quoting Hill v. BCTI Income Fund-I, 144 Wn.2d 172, 192-93, 23 P.3d
440 (2001), abrogated on other grounds by Mikkelsen v. Pub. Util. Dist. No. 1 of
Kittitas County, 189 Wn.2d 516, 404 P.3d 464 (2017)).
King County concedes “that Mitchell satisfied the first and third parts of the
test.”7 However, King County asserts that Mitchell failed to demonstrate that
genuine issues of material fact exist as to whether (1) he was qualified to perform
the essential functions of his job, and (2) King County failed to affirmatively adopt
measures that were available to it and medically necessary to accommodate
Mitchell’s conditions.
“An ‘essential function’ is a job duty that is fundamental, basic, necessary,
and indispensable to filling a particular position.” Gibson, 17 Wn. App. 2d at 559
(citing Davis, 149 Wn.2d at 533). “The ability to work a particular schedule can
be an essential function.” Gibson, 17 Wn. App. 2d at 559-60 (citing Davis, 149
Wn.2d at 535-36). Additionally, our Supreme Court has recognized that, “as
federal case law shows, job presence or attendance may indeed be an essential
job function.” Davis, 149 Wn.2d at 534. Indeed, federal appellate courts have
explained that, “‘[e]xcept in the unusual case where an employee can effectively
perform all work-related duties at home, an employee who does not come to
work cannot perform any of his job functions, essential or otherwise.’” Samper v.
Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1239 (9th Cir. 2012) (internal
7 Br. of Resp’t at 17.
12
No. 82347-7-I/13
quotation marks omitted) (quoting E.E.O.C. v. Yellow Freight Sys., Inc., 253 F.3d
943, 948 (7th Cir. 2001)).8
Similarly, another federal appellate court has opined that an employee
who could not work for six months was not capable of performing the essential
functions of her job and, in turn, the employer was not required to keep the job
available for such a duration to accommodate the employee:
By her own admission, [the employee] couldn’t work at any point or
in any manner for a period spanning more than six months. It
perhaps goes without saying that an employee who isn’t capable of
working for so long isn’t an employee capable of performing a job’s
essential functions—and that requiring an employer to keep a job
open for so long doesn’t qualify as a reasonable accommodation.
After all, reasonable accommodations—typically things like adding
ramps or allowing more flexible working hours—are all about
enabling employees to work, not to not work.
Hwang v. Kansas State Univ., 753 F.3d 1159, 1161-62 (10th Cir. 2014).
Consistent with these authorities, we have explained that “[r]easonable
accommodation ‘envisions an exchange between employer and employee where
each seeks and shares information to achieve the best match between the
employee’s capabilities and available positions.’” City of Seattle v. Am.
Healthcare Servs., Inc., 13 Wn. App. 2d 838, 857, 468 P.3d 637 (2020) (quoting
Goodman v. Boeing Co., 127 Wn.2d 401, 408-09, 899 P.2d 1265 (1995)). “Once
an employer is notified [of an employee’s disability], it is ‘the employer’s burden
to take “positive steps” to accommodate the employee’s limitations,’ although the
8 In determining the scope of WLAD, Washington courts may look to federal case law.
Kumar v. Gate Gourmet Inc., 180 Wn.2d 481, 491, 325 P.3d 193 (2014) (“Even though almost all
of the WLAD’s prohibitions predate [42 U.S.C. § 2000e-2(a)], the [Americans with Disabilities
Act]’s, and the [Age Discrimination in Employment Act]’s, Washington courts still look to federal
case law interpreting those statutes to guide our interpretation of the WLAD.”).
13
No. 82347-7-I/14
employee also retains a duty to cooperate with the employer’s efforts by
explaining the disability and qualifications.” Am. Healthcare Servs., 13 Wn. App.
2d at 857 (quoting Goodman, 127 Wn.2d at 408).
C
Mitchell failed to establish a genuine issue of material fact as to whether
he was qualified to perform the essential functions of his job. Indeed, after
approximately eight months, Mitchell’s healthcare providers could not, following
numerous requests, provide King County with a date by which he would be able
return to work, with or without reasonable accommodations. Because Mitchell
was not able to return to work after such a lengthy duration, he was not qualified
to perform the essential functions of his job. See Davis, 149 Wn.2d at 534;
Hwang, 753 F.3d at 1161; Samper, 675 F.3d at 1239.
Moreover, King County was not required to keep Mitchell’s job position
open for a longer period of time in order to accommodate his physical and mental
health conditions. See Hwang, 753 F.3d at 1161. King County was, however,
required to take positive steps to accommodate Mitchell’s conditions. See Am.
Healthcare Servs., 13 Wn. App. 2d at 857. And the record indicates that King
County did exactly that.
After King County received the letter in which Dr. Nguyen stated that
Mitchell was excused from work until December 31, 2018, Christensen provided
Mitchell with a medical questionnaire to give to Dr. Nguyen. This medical
questionnaire asked, “Are there any reasonable accommodations that may be
considered that would allow Mr. Mitchell to perform all of his essential functions
14
No. 82347-7-I/15
as a Prevention Maintenance Specialist?” Dr. Nguyen responded to this
question by stating “No.”
Additionally, in a letter dated January 11, 2019, and addressed to Dr.
Nguyen, Christensen asked “whether [King County] can offer any reasonable
accommodations to help [Mitchell] perform the essential functions of his job upon
his return.” The record does not contain a response to this letter from Dr.
Nguyen.
Next, after Canady diagnosed Mitchell with posttraumatic stress disorder
and major depressive disorder, King County provided Canady with a medical
questionnaire. This medical questionnaire asked, “Is it medically required that
Mr. Mitchell remain off of work while he seeks treatment with you?” Canady
responded in the affirmative and explained that it was medically required that
Mitchell remain off of work “for at least 45 days due to triggers at work.” This
medical questionnaire also asked, “Will Mr. Mitchell be able to return to work and
perform all the essential functions of his . . . position, with or without reasonable
accommodation (a copy of Mr. Mitchell’s position’s job analysis is attached for
you to reference)?” Canady responded, “I am a master’s level clinician and due
to agency regulations cannot give analysis of employment capacity.”
Furthermore, in the letter informing Mitchell that King County was
proposing a medical separation, McLaughlin invited Mitchell to attend a
Loudermill hearing on April 29, 2019. This letter also specified that Mitchell could
attend either in person or via telephone, and that Mitchell could submit further
documentation regarding the proposed medical separation. This Loudermill
15
No. 82347-7-I/16
hearing provided Mitchell with an opportunity to present further information
regarding his physical and mental health conditions. However, Mitchell did not
attend the hearing. Moreover, Cummins, Mitchell’s union representative who
attended the hearing on Mitchell’s behalf, consented to the Loudermill hearing
proceeding as scheduled. At the hearing, Cummins did not provide any
additional information regarding Mitchell’s proposed medical separation.
D
The record also demonstrates that King County attempted to
accommodate Mitchell’s conditions through reassignment both before and after
Mitchell was medically separated. See Griffith v. Boise Cascade, Inc., 111 Wn.
App. 436, 444, 45 P.3d 589 (2002) (“Reassignment is a reasonable
accommodation.”). According to a letter dated May 6, 2019, wherein the deputy
division direction informed Mitchell of his medical separation, Christensen
“completed a review of [Mitchell’s] transferrable skills and medical restrictions on
April 8, 2019, and unfortunately could not find any open, non-promotional
positions for which [Mitchell] would be minimally qualified to perform at this time.”
This letter also informed Mitchell that he was eligible for King County’s
reassignment program for one year from the date of the medical separation and
advised him to contact Christensen with any questions regarding the
reassignment program. However, Mitchell never contacted anyone at King
County about utilizing the reassignment program.
E
Mitchell raises several arguments as to why he believes that genuine
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No. 82347-7-I/17
issues of material fact exist as to whether (1) he was capable of performing the
essential functions of his job, or (2) King County failed to take affirmative
measures to reasonably accommodate his physical and mental health conditions.
First, Mitchell asserts that, in an e-mail message sent to Aweeka on April
19, 2019, he provided a return to work date of August 20, 2019. The referenced
e-mail message provides, in full:
Hello Jamie,
I’ve started the process of enrollment into a different outpatient
program.
I located an OutPatient program (IOP) (Bayside Marin RTC & IOP)
It last [sic] 10 weeks long in San Rafael, CA.
Neurostim treatment in Lakewood,WA (The TMS treatment is 30
Days long) I will enroll in the TMS therapy after Bayside treatment
is complete.
90 days Starting from May 17, 2019 Enrollment – Aug 20th 2019
(Mon, Wed, Fri 10am – 1pm) or evenings
Respectfully AJ
This e-mail message did not provide a return to work date. At best, this e-
mail message states that, in the event that Mitchell was able to enroll in these
two treatment programs, the programs would end by August 20, 2019.9
Moreover, this e-mail message provides no indication that these programs would
effectively treat Mitchell’s physical and mental health conditions such that, by
August 20, 2019, he would have been able to return to work and perform the
essential functions of his job.10
Next, Mitchell contends that King County improperly relied on the opinion
9 According to a declaration by Mitchell, Mitchell ultimately did not enroll in the Bayside
Marin outpatient program “because [he] no longer had medical insurance.” Instead, Mitchell
enrolled in a different outpatient treatment program, which ended on September 14, 2019.
10 Even if Mitchell provided a return to work date of August 20, 2019, Mitchell failed to
establish a fact issue as to whether King County did not reasonably accommodate him. Indeed,
had Mitchell returned to work on August 20, 2019, he would have been on leave for just short of
17
No. 82347-7-I/18
of Dr. Cox in deciding to medically separate him. According to Mitchell, Dr. Cox,
as a chiropractor, was unqualified to opine on Mitchell’s mental health conditions
when he concluded that Mitchell’s job was “likely too demanding for him.”
However, Dr. Cox stated that the tasks required by Mitchell’s job “would likely
exceed [his] pain threshold, given his difficulty with job training exercises with
physical therapy.” (Emphasis added.) Such a determination did not, as Mitchell
claims, plainly fall outside the scope of Dr. Cox’s expertise as a chiropractor.
In fact, as of the date of separation, Mitchell had provided King County
with no competent information from a health care provider regarding his mental
health conditions and his capacity to work other than that from Dr. Cox. Indeed,
the sole professional addressing these concerns was Canady who, by his own
admission, was not competent to “give [an] analysis of employment capacity.”
Finally, Mitchell asserts that a genuine issue of material fact exists as to
whether King County adequately engaged in an interactive process in order to
provide him with a reasonable accommodation. This is so, Mitchell argues,
because King County did not inquire into the nature of his mental health
conditions. According to Mitchell, “[w]ithout attempting to understand the nature
and extent of Mitchell’s mental health disability, King County could not have
identified possible reasonable accommodations that would have allowed Mitchell
to continue working.”11 However, as already explained, King County took
positive steps to inquire into the nature of Mitchell’s mental health conditions by
one year. As already explained, an employer is not required to keep a job position open for such
a duration. See Hwang, 753 F.3d at 1161.
11 Br. of Appellant at 24-25.
18
No. 82347-7-I/19
requesting both Dr. Nguyen and Canady to provide further information regarding
these conditions in the form of answers to medical questionnaires. In any event,
whereas an employer bears the burden “‘to take “positive steps” to accommodate
the employee’s limitations, . . . the employee . . . retains a duty to cooperate with
the employer’s efforts by explaining the disability and qualifications.” Am.
Healthcare Servs., 13 Wn. App. 2d at 857 (quoting Goodman, 127 Wn.2d at
408). In other words, it was Mitchell who had a duty to explain his mental health
conditions and qualifications to King County. As such, the record indicates that
King County, by asking both Mitchell and his healthcare providers whether the
County could provide any reasonable accommodations so that Mitchell could
return to work, adequately engaged in the interactive process.
In sum, Mitchell failed to establish genuine issues of material fact as to
whether he was qualified to perform the essential functions of his job and
whether King County failed to take affirmative measures to reasonably
accommodate his physical and mental health conditions. Accordingly, the trial
court did not err by granting King County’s motion for summary judgment with
regard to Mitchell’s claim of failure to accommodate.
III
Mitchell next contends that the trial court erred by granting King County’s
motion for summary judgment with regard to his claim of disparate treatment.
This is so, Mitchell avers, because genuine issues of material fact exist as to
whether he performed satisfactory work and King County medically separated
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him under circumstances that raise an inference of unlawful discrimination.
Again, we disagree.
In cases alleging disparate treatment under WLAD, Washington courts
apply “the evidentiary burden-shifting scheme announced in McDonnell
Douglas.[12]” Mikkelsen, 189 Wn.2d at 526. Under this framework, the plaintiff
must first establish a prima facie case of discrimination. Mikkelsen, 189 Wn.2d at
527. Although the elements of a prima face case vary depending on the relevant
facts, the parties agree that Mitchell was required to demonstrate that (1) he is a
member of a protected class, (2) he suffered an adverse employment action, (3)
he was doing satisfactory work, and (4) the action occurred under circumstances
that raise an inference of unlawful discrimination. See Marin v. King County, 194
Wn. App. 795, 808-09, 378 P.3d 203 (2016).
If the plaintiff establishes a prima facie case of discrimination, “the burden
shifts to the defendant, who must ‘articulate a legitimate, nondiscriminatory
reason for the adverse employment action.’” Mikkelsen, 189 Wn.2d at 527
(quoting Scrivener v. Clark College, 181 Wn.2d 439, 446, 334 P.3d 541 (2014)).
Finally, “if the defendant meets this burden, the plaintiff must produce
sufficient evidence showing that the defendant’s alleged nondiscriminatory
reason for the adverse employment action was a pretext.” Mikkelsen, 189 Wn.2d
at 527. “‘An employee may satisfy the pretext prong by offering sufficient
evidence to create a genuine issue of material fact either (1) that the defendant’s
reason is pretextual or (2) that although the employer’s stated reason is
12 McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668(1973).
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No. 82347-7-I/21
legitimate, discrimination nevertheless was a substantial factor motivating the
employer.’” Mikkelsen, 189 Wn.2d at 527 (quoting Scrivener, 181 Wn.2d at 446-
47).
“Summary judgment for an employer is seldom appropriate in employment
discrimination cases because of the difficulty of proving discriminatory
motivation.” Mikkelsen, 189 Wn.2d at 527. “To overcome summary judgment,
the plaintiff needs to show only that a reasonable jury could find that
discrimination was a substantial factor in the employer’s adverse employment
action.” Mikkelsen, 189 Wn.2d at 528.
The parties agree that Mitchell was a member of a protected class and
that he suffered an adverse employment action.13 However, Mitchell asserts that
genuine issues of material fact exist as to whether he was doing satisfactory
work and whether the medical separation occurred under circumstances that
raise an inference of unlawful discrimination.
To satisfy the requirement that an employee was doing satisfactory work,
the employee bears the burden to establish that he or she “was doing
satisfactory work when the termination decision was made.” Griffith v. Schnitzer
Steel Indus., Inc., 128 Wn. App. 438, 446, 115 P.3d 1065 (2005) (emphasis
13 An adverse employment action means “‘a significant change in employment status,
such as hiring, firing, failing to promote, reassignment with significantly different responsibilities,
or a decision causing a significant change in benefits.’” Marin, 194 Wn. App. at 808 (quoting
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761, 118 S. Ct. 2257, 141 L. Ed. 2d 633 (1998)).
Although medical separation does not fit squarely within the examples provided in the quoted
definition, medical separation is akin to termination and, therefore, it is an adverse action. See,
e.g., Aki v. Univ. of California Lawrence Berkeley Nat’l Lab., 74 F. Supp. 3d 1163, 1175 n.4 (N.D.
Calif. 2014) (stating that “medical separation” is “an adverse action”); El-Bey v. City of New York,
151 F. Supp. 2d 285, 297 (S.D.N.Y. 2001) (stating that an employee who was, among other
things, placed on “unpaid medical separation leave” established “the ‘adverse action’ element of
his prima facie case”).
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No. 82347-7-I/22
added); accord Ennis v. Nat’l Ass’n of Bus. & Educ. Radio, Inc., 53 F.3d 55, 58
(4th Cir. 1995) (stating that an employee performs satisfactory work when, “at the
time of the discharge, she was performing her job at a level that met her
employer’s legitimate expectations” (emphasis added)).
On May 6, 2019, when Mitchell was medically separated, he had not
performed his job for eight months. Approximately two months before Mitchell
was medically separated, Canady explained, with regard to Mitchell’s mental
health conditions, that Mitchell required “at least 45 days” off from work “due to
triggers at work.” However, Mitchell subsequently informed Aweeka that he had
“started the process of enrollment” into two treatment programs that would, at
best, end on August 20, 2019. Moreover, approximately one month before
Mitchell was medically separated, Mitchell’s chiropractor, Dr. Cox, explained that
the tasks required by Mitchell’s job “would likely exceed [his] pain threshold,
given his difficulty with job training exercises with physical therapy,” and that
Mitchell’s job is “likely too demanding for him, and [he] will likely require new job
training/placement.” On this record, there is no indication that Mitchell, at the
time he was medically separated, was performing (much less capable of
performing) satisfactory work.14
Additionally, to satisfy the requirement that an adverse employment action
occurred under circumstances that raise an inference of unlawful discrimination,
14 Mitchell contends that “[i]t is more logical to examine Mitchell’s job performance prior to
his leave, which was satisfactory.” Br. of Appellant at 33. However, a determination as to
whether an employee was doing satisfactory work is made “when the termination decision was
made.” Griffith, 128 Wn. App. at 446; accord Ennis, 53 F.3d at 58. As already explained, there is
no indication in the record that Mitchell was anywhere near being capable of performing his job in
any manner, let alone satisfactorily, when he was medically separated.
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No. 82347-7-I/23
an employee must “point[] to . . . evidence that [the employer] took an adverse
action against him because of his protected class.” Marin, 194 Wn. App. at 810
(emphasis added). Mitchell contends that a genuine issue of material fact exists
to raise an inference of unlawful discrimination because Aweeka, in several e-
mail messages, referred to Mitchell’s mental health conditions as “Non-
occupational” and “non-work related.” Mitchell asserts that the language used by
Aweeka is significant because, in previous e-mail messages, Aweeka referred to
Mitchell’s mental health conditions as “work related” and Christensen stated that
Mitchell “mentioned that the reason why Dr. Nguyen has taken him off of work is
related to his [on the job injury] claims.” According to Mitchell, “[t]his stark
change in language indicates discriminatory motive as there is a deliberate
refusal to acknowledge the nature of Mitchell’s disability.”15
However, Mitchell fails to show how, exactly, these descriptions of his
mental health conditions indicate that King County medically separated him
because of his status as a member of a protected class. Instead, the record
indicates that King County medically separated Mitchell only because, after eight
months, neither he nor his healthcare providers were able to provide King County
with a date by which he could return to work, with or without reasonable
accommodations.
Because Mitchell failed to establish a genuine issue of material fact with
regard to two elements of his prima facie case, the trial court did not err by
15 Br. of Appellant at 33.
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granting King County’s motion for summary judgment on his claim of disparate
treatment.16
Affirmed.
WE CONCUR:
16Mitchell also contends that he is entitled to an award of attorney fees on appeal
pursuant to RCW 49.60.030. Because Mitchell is not a prevailing party, he is not entitled to an
award of attorney fees.
24