Deborah Hollis v. Snohomish County Medical Examiner's Office

IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DEBORAH HOLLIS, )
) No. 78034-4-1
Appellant, )
) DIVISION ONE
v. )
)
SNOHOMISH COUNTY MEDICAL )
EXAMINER'S OFFICE, ) UNPUBLISHED OPINION
)
Respondent. ) FILED: May 20, 2019
)
SMITH, J. — Deborah Hollis appeals the summary judgment dismissal of
her claims against her former employer, the Snohomish County Medical
Examiner's Office(SCMEO),for retaliation, disability discrimination, and failure to
accommodate her disabilities. Hollis did not meet her burden to present evidence
raising a genuine issue of material fact as to whether she suffered an adverse
employment action, a required element of retaliation. Additionally, Hollis did not
give SCMEO notice of her disability discrimination or failure-to-accommodate
claims before filing this lawsuit, as required by RCW 4.96.020. The remedy for
failure to provide notice before filing a lawsuit is usually dismissal without
prejudice if notice can still be given within the statute of limitations, as is the case
here. However, we hold that even if Hollis had given SCMEO timely notice of her
disability discrimination and failure to accommodate claims, those claims fail on
alternate bases. For these reasons, we affirm.
No. 78034-4-1/2
FACTS
In 2006, SCMEO hired Hollis as a medical investigator II. In 2013, Hollis
testified in a discrimination lawsuit by a coworker that led to the resignation of her
supervisor, Dr. Norman Thiersch. In December 2013, Hollis also filed her own
discrimination lawsuit against SCMEO and Dr. Thiersch, which settled in October
2014 and was dismissed.
Hollis suffers from diabetes. In December 2013, the same month she filed
her lawsuit against SCMEO, Hollis requested a workplace accommodation for
her diabetes and met with Heather Ole, SCMEO's operations manager. Hollis
asked Oie for new boots, a refrigerator to keep her lunch in, and the ability to
take breaks as necessary. The day after the meeting, Hollis purchased the boots
on SCMEO's credit card and Dr. Thiersch purchased a personal refrigerator for
Hollis's work space. Ole advised Hollis that she could take breaks to manage
her condition at any time and asked Hollis to notify her if she had any trouble
taking those breaks. After this initial meeting, Hollis never contacted Ole to
inform her that there were any issues with the accommodations.
In August 2015, Hollis complained to Dr. Daniel Selove, the chief medical
examiner hired in 2015, that she was not able to take her lunch breaks. Dr.
Selove advised Hollis that she should take her lunch breaks and to notify her
lead immediately if she needed assistance in doing so. Dr. Selove also advised
Hollis that she could take an additional snack or meal break later in the day, and
he offered to schedule a meal period for her to ensure that she would be able to
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No. 78034-4-1/3
eat. Dr. Selove told Hollis to contact Oie if she had any issues with her breaks.
Hollis did not inform Oie or Dr. Selove of any further issues taking breaks.
In August 2016, Hollis suffered a workplace injury to her finger and rotator
cuff while transporting a decedent. Hollis was restricted from pushing, pulling, or
lifting anything over five pounds. SCMEO assigned her light-duty work drafting
sections of its policy manual. While on light-duty assignment, Hollis interviewed
for a deputy coroner position with the Skagit County Coroner's Office. On
November 3, 2016, Skagit County informed Hollis that it had selected her for the
position and asked her to authorize a background check. On November 4, 2016,
SCMEO notified Hollis that there was no additional light-duty work and that it
would place her on administrative leave. Hollis tendered her resignation the
same day. On November 8, 2016, Hollis was released to perform her job without
restrictions. The next day, Dr. Selove informed Hollis that she could return to
work on her regular schedule. Hollis declined and began working for Skagit
County on November 16, 2016.
In March 2017, Hollis filed this lawsuit against SCMEO. She alleged
claims for retaliation, a hostile work environment,' disability discrimination, and
failure to provide a reasonable accommodation. Specifically, Hollis alleged that
coworkers loyal to Dr. Thiersch "engaged in behavior to ostracize or defame" her,
subjected her to a hostile work environment, and told new employees not to
associate with her because she was "'paranoid' and would likely sue them." She
1 At the trial court, Hollis conceded that her hostile work environment claim
is a subpart of the retaliation claim. Therefore, we address that claim as part of
the retaliation analysis.
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No. 78034-4-1/4
also alleged that she received a less-than-satisfactory performance evaluation,
that SCMEO limited her light-duty work after her workplace injury, and that she
constructively discharged herself "[a]s a result of this discriminatory and
retaliatory act and the on-going and unremedied hostile work environment."
SCMEO moved for summary judgment on all claims. The trial court
determined that Hollis presented only conclusory statements to support her
claims, that there was no evidence of a nexus between her discrimination lawsuit
and subsequent treatment, and that summary dismissal was proper for all claims.
Hollis appeals.
ANALYSIS
Retaliation
Hollis argues that the trial court improperly dismissed her retaliation claim
because she established a prima facia case of retaliation. Because Hollis has
not presented evidence that raises a genuine issue of material fact as to whether
she experienced an adverse employment action, we disagree.
This court reviews summary judgment orders de novo. Keck v. Collins,
184 Wash. 2d 358, 370, 357 P.3d 1080 (2015). "[S]ummary judgment is appropriate
where there is 'no genuine issue as to any material fact and . . . the moving party
is entitled to a judgment as a matter of law." Elcon Constr., Inc. v. E. Wash.
Univ., 174 Wash. 2d 157, 164, 273 P.3d 965(2012)(second alteration in original)
(quoting CR 56(c)). Although the evidence is viewed in the light most favorable
to the nonmoving party, if that party is the plaintiff and she fails to make a factual
showing sufficient to establish an element essential to her case, summary
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No. 78034-4-1/5
judgment is warranted. Young v. Key Pharm., Inc., 112 Wash. 2d 216, 225, 770
P.2d 182(1989). Once the moving party shows there are no genuine issues of
material fact, the nonmoving party must bring forth specific facts to rebut the
moving party's contentions. Elcon Constr., 174 Wash. 2d at 169. "[M]ere
allegations, denials, opinions, or conclusory statements" do not establish a
genuine issue of material fact. Intl Ultimate, Inc. v. St. Paul Fire & Marine Ins.
122 Wash. App. 736, 744, 87 P.3d 774 (2004).
The Washington Law Against Discrimination, chapter 49.60 RCW,
"prohibits employers from retaliating against employees who oppose
discriminatory practices." Cornwell v. Microsoft Corp., 192 Wash. 2d 403, 411, 430
P.3d 229(2018)(quoting RCW 49.60.210(1)). To establish a prima facie case of
retaliation, Hollis must show that(1) she engaged in a statutorily protected
activity,(2) SCMEO took an adverse employment action against her, and (3)
there is a causal link between the activity and the adverse action. Alonso v.
Qwest Commc'ns Co., 178 Wash. App. 734, 753-54, 315 P.3d 610 (2013).
Because chapter 49.60 RCW substantially parallels Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17, federal discrimination cases are
persuasive. Antonius v. King County, 153 Wash. 2d 256, 266, 103 P.3d 729 (2004).
It is uncontested that Hollis engaged in a statutorily protected activity
when she filed her discrimination lawsuit against SCMEO in 2013. But, Hollis
fails to establish a prima facie case of retaliation because she does not present
evidence raising a genuine issue of material fact as to whether she suffered an
adverse employment action.
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No. 78034-4-1/6
"An actionable adverse employment action must involve a change in
employment conditions that is more than an inconvenience or alteration of job
responsibilities, such as reducing an employee's workload and pay." Tyner v.
State, 137 Wash. App. 545, 564-65, 154 P.3d 920 (2007)(internal quotation marks
omitted)(quoting Kirby v. City of Tacoma, 124 Wash. App. 454, 465, 98 P.3d 827
(2004)). "It includes a demotion or adverse transfer, or a hostile work
environment." Boyd v. Dep't of Soc. & Health Servs., 187 Wash. App. 1, 13, 349
P.3d 864 (2015). Whether an action "is materially adverse depends upon the
circumstances of the particular case, and should be judged from the perspective
of a reasonable person in the plaintiff's position." Tyner, 137 Wash. App. at 565
(internal quotation marks omitted)(quoting Burlington N. & Santa Fe Ry. v.
White 548 U.S. 53, 126 S. Ct. 2405, 2417, 165 L. Ed. 2d 345 (2006)).
Hollis argues that she presented evidence of several different adverse
employment actions. We disagree.
First, Hollis argues that management monitored her use of SCMEO's
showers and bathrooms to show that she was misusing work time. As evidence
of this, Hollis cites to exhibit C to her response to SCMEO's motion for summary
judgment. This document is not legible, and Hollis does not explain what it
contains. SCMEO states that exhibit C documents that an employee complained
that Hollis was showering after the start of her 6:00 a.m. shift, that Oie called
Hollis at 6:20 a.m. one morning and a coworker said she was showering, and
that Oie and Dr. Selove decided that Dr. Selove would remind Hollis to be ready
to work at the start of her shift. Hollis does not refute SCMEO's description of the
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No. 78034-4-1/7
exhibit. As described, it is not evidence of an adverse employment action
because actions that are disciplinary or investigatory in nature are not adverse
employment actions. Kirby, 124 Wash. App. at 465. Furthermore, Hollis points to
nothing in the record that raises an issue of fact as to whether management's
actions otherwise resulted in a change in her employment conditions. Therefore,
Hollis did not meet her burden to show that management's response to her use
of the showers during work was an adverse employment action.
Second, Hollis cites a negative performance evaluation as evidence of an
adverse employment action. In that evaluation, Hollis was rated "Does Not
Consistently Meet Expectations" for the "Partnership" criteria. Hollis argues that
this evaluation inconsistently applied expectations because it both praised her
manner with some individuals and criticized her communication with other
individuals. But in her briefing on summary judgment, Hollis admitted that this
evaluation was not final. An undeserved and negative performance evaluation
can be an adverse employment action, but there is no adverse employment
action if the evaluation is subject to modification by the employer. Brooks v. City
of San Mateo, 229 F.3d 917, 929-30 (9th Cir. 2000). Therefore, because the
evaluation was not final, Hollis did not meet her burden to show that the negative
evaluation was an adverse employment action.
Third, Hollis argues that management restricted her opportunities to train
new medical investigators and that such restriction was an adverse employment
action. She cites to an email in which she complained to Dr. Selove that a new
employee was receiving training in the autopsy department rather than with her
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No. 78034-4-1/8
in the investigations department, and that she should be able to train because of
her seniority. But Dr. Selove's response indicated that the new employee would
train in the investigations department after his training in autopsy was complete.
Dr. Selove did not state that Hollis could not train the new employee. Therefore,
this email does not raise a genuine issue of material fact that Dr. Selove denied
Hollis any training opportunities.
Finally, Hollis argues that she was subjected to an adverse employment
action in the form of a hostile work environment. To demonstrate a hostile work
environment, Hollis must establish that she suffered harassment that was
unwelcome and that the harassment affected the terms and conditions of her
employment, occurred because Hollis is a member of a protected class, and was
imputable to SCMEO. Loeffelholz v. Univ. of Wash., 175 Wash. 2d 264, 275, 285
P.3d 854 (2012). Here, Hollis alleges that other employees and management
ridiculed and tormented her based on her diabetes and subjected her to
undesirable and offensive conduct that compounded the difficulty of managing
her diabetes. At oral argument, Hollis alleged that Dr. Selove failed to stop other
employees from harassing her as a way of retaliating against her for her
participation in the 2013 lawsuits. She contends that she has raised an issue of
fact as to whether she was harassed based on the behavior of her coworkers
that she described in her declaration. Again, we disagree.
"Though the trial court may be lenient to a nonmoving party's affidavits
presented in response to a motion for summary judgment, it may not consider
conclusory statements contained in the nonmoving party's affidavits." Baldwin v.
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No. 78034-4-1/9
Silver, 165 Wash. App. 463, 471, 269 P.3d 284 (2011). A fact "is what took place,
an act, an incident, a reality as distinguished from supposition or opinion . . .[and
u]ltimate facts or conclusions of fact are insufficient." Grimwood v. Univ. of Puget
Sound, Inc., 110 Wash. 2d 355, 359, 753 P.2d 517(1988), abrogated on other
grounds ta Mikkelsen v. Pub. Util. Dist. No. 1 of Kittitas County, 189 Wash. 2d 516,
527, 404 P.3d 464 (2017). "A nonmoving party cannot defeat a motion for
summary judgment with conclusory statements of fact." Baldwin, 165 Wash. App.
at 471.
Here, Hollis's declaration stated that she has diabetes and must eat meals
at times that correlate to her medications and blood sugar and that she needs to
use the bathroom more frequently and for prolonged periods of time. Hollis
explained that she "was ridiculed for requesting breaks and accused of
attempting to take control of the schedule" and "faced the intolerable choice of
avoiding censure and ridicule and maintaining healthy blood sugar levels." Hollis
also stated that she "began looking for other work because the environment had
become so hostile" and she "faced daily battles in merely being able to do [her]
job, [ri]ot to mention the constant stream of unfounded complaints from co-
workers that management indulged and investigated." These statements are
conclusory because they do not include any detail about the specific acts of
harassment Hollis suffered. Therefore, they do not raise an issue of fact as to
whether she suffered harassment, a required element of a hostile work
environment.
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No. 78034-4-1/10
Because Hollis did not present evidence that raises a genuine issue of
material fact as to whether she suffered any adverse employment action,
summary dismissal of her retaliation claim was proper.
Hollis argues that SCMEO's actions need not affect the terms and
conditions of her employment to be adverse employment actions. In support of
this proposition, she cites Tyner. But Tyner states that "'[a]n actionable adverse
employment action must involve a change in employment conditions that is more
than an inconvenience or alteration of job responsibilities, such as reducing an
employee's workload and pay." Tyner, 137 Wash. App. at 564-65 (emphasis
added)(internal quotation marks omitted)(quoting Kirby, 124 Wash. App. at 465).
Hollis also cites Boyd for the proposition that an employment action is adverse
merely if it would dissuade a reasonable employee from making a charge of
discrimination. Boyd does state that an "employee must show that a reasonable
employee would have found the challenged action materially adverse, meaning
that it would have 'dissuaded a reasonable worker from making or supporting a
charge of discrimination." Boyd, 187 Wash. App. at 13 (internal quotation marks
omitted)(quoting Burlington N., 548 U.S. at 68). But it also acknowledges that
"[a]n adverse employment action involves a change in employment that is more
than an inconvenience or alteration of one's job responsibilities." Boyd, 187 Wn.
App. at 13. Neither Tyner nor Boyd,stands for the proposition that Hollis can
establish an adverse employment action without a change in employment
conditions.
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No. 78034-4-1/1 1
Hollis also argues that Burlington Northern, a 2006 United States
Supreme Court decision, held that an adverse employment action is anything
that discourages an employee from bringing a claim for retaliation. It does not.
In that case, the Court held that to constitute an adverse employment action, an
employer's conduct must be "materially adverse to a reasonable employee,"
meaning that "the employer's actions must be harmful to the point that they could
well dissuade a reasonable worker from making or supporting a charge" of
unlawful conduct by the employer. Burlington N., 548 U.S. at 57. But this
standard is still one of "material adversity" that does not include "trivial harms,"
and the reaction must be that of a "reasonable employee." Burlington N., 548
U.S. at 68. "[P]etty slights, minor annoyances, and simple lack of good manners
will not create such deterrence." Burlington N., 548 U.S. at 68. Under the
evidence presented, Hollis does not establish that she suffered a material
adversity.
For the first time in her reply brief, Hollis argues that Reed v. Kindercare
Learning Centers LLC, No. C15-5634BHS, 2016 WL 7231454(W.D. Wash. Dec.
14, 2016)(court order), requires reversal. We decline to address this case
because we need not address cases cited for the first time in a reply brief.
Cowiche Canyon Conservancy v. Bosley, 118 Wash. 2d 801, 809, 828 P.2d 549
(1992).
Hollis next argues, also for the first time in her reply brief, that she was
subject to additional adverse employment actions, including different treatment in
the availability of light-duty work, the refusal to permit her to work, and Dr.
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No. 78034-4-1/12
Selove's email publicizing her training complaints to the staff. But "[a] reply brief
should . .. be limited to a response to the issues in the brief to which the reply
brief is directed." RAP 10.3(c). Therefore, we decline to consider these
additional alleged adverse employment actions. See State v. Hudson, 124
Wash. 2d 107, 120, 874 P.2d 160(1994)(raising an issue for the first time in a reply
brief unfairly deprives the respondent of an opportunity to respond and presents
the court with an issue that has not been fully developed).
Finally, Hollis argues that declarations from Ethan Greggerson, Hayley
Thompson, and herself create a genuine issue of material fact as to whether
there is a causal link between her protected activity of filing the 2013 lawsuit and
her alleged adverse employment actions. "An employee proves causation 'by
showing that retaliation was a substantial factor motivating the adverse
employment decision." Cornwell, 192 Wash. 2d at 412 (quoting Allison v. Hous.
Auth., 118 Wash. 2d 79, 96, 821 P.2d 34(1991). We agree that Greggerson's
declaration presents a genuine issue of material fact that retaliation was a
substantial factor in the alleged adverse employment actions. Greggerson's
declaration states,"When I began my employment as a trainee with SCMEO, I
was told by staff and supervisors that I should stay clear of Deborah Hollis,
saying that she had filed lawsuits against the County and was 'paranoid' and
'untrustworthy." This statement, taken in the light most favorable to Hollis, is
evidence that the alleged adverse employment actions were based on her
discrimination lawsuit. But because Hollis did not present evidence that raises a
genuine issue of material fact as to whether she suffered an adverse
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No. 78034-4-1/13
employment action, evidence of a causal link to those alleged adverse
employment actions does not change the ultimate result and summary judgment
was proper.
Failure To Accommodate and Disability Discrimination
Hollis argues that the trial court improperly dismissed her disability
discrimination and reasonable accommodation claims. We disagree.
As an initial matter, we note Hollis did not give SCMEO proper notice of
these claims. RCW 4.96.020(2) requires that lap claims for damages against a
local governmental entity. . . shall be presented to the agent within the
applicable period of limitations within which an action must be commenced."
Furthermore, "[n]cs action subject to the claim filing requirements of this section
shall be commenced against any local governmental entity. . . for damages
arising out of tortious conduct until sixty calendar days have elapsed after the
claim has first been presented to the agent of the governing body thereof." RCW
4.96.020(4).
"The purpose of claim filing statutes is to 'allow government entities time to
investigate, evaluate, and settle claims." Lee v. Metro Parks Tacoma, 183 Wn.
App. 961, 968, 335 P.3d 1014(2014)(quoting Medina v. Pub. Util. Dist. No. 1 of
Benton County, 147 Wash. 2d 303, 310, 53 P.3d 993(2002)). "Allowing time for
investigation and evaluation also provides an opportunity for governmental
entities to assess the potential costs and benefits of litigation." Lee, 183 Wn.
App. at 968. "Washington case law requires strict compliance with the filing
procedures." Hintz v. Kitsap County, 92 Wash. App. 10, 14, 960 P.2d 946 (1998).
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No. 78034-4-1/14
"The proper remedy for failure to comply with a notice of claim statute is
dismissal of the suit." Hintz, 92 Wash. App. at 14. Dismissal without prejudice is
proper when the statute of limitations on a claim has not yet expired. See Hintz,
92 Wash. App. at 12 (noting that wrongful discrimination claim previously dismissed
without prejudice where statute of limitations had not yet expired).
Here, the claim signed by Hollis on September 27, 2016, describes
retaliatory behavior by county management and staff but does not allege that
SCMEO discriminated against her based on any disability or failed to reasonably
accommodate her disabilities. Therefore, Hollis did not meet her burden to show
that she gave SCMEO notice of her disability discrimination or failure-to-
accommodate claims.
But, the statute of limitations on Hollis's claims has not yet expired. As a
result, one remedy is dismissal without prejudice, which would allow Hollis time
to comply with the claim filing statute. However, as described below, Hollis did
not raise a genuine issue of material fact that SCMEO failed to accommodate her
disability. And she waived her argument that dismissal of the disability
discrimination claim was improper because she did not address it in her opening
brief on appeal. Therefore, we hold that dismissal without prejudice is
unnecessary and summary judgment on those claims is warranted.
First, Hollis did not establish a prima facie case that SCMEO failed to
reasonably accommodate her disabilities. To do so, Hollis must show that she
has a disability that substantially limited her ability to perform the job, she was
qualified to perform the essential functions of the job, she gave SCMEO notice of
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No. 78034-4-1/15
the disability and its accompanying substantial limitations, and upon notice,
SCMEO failed to adopt measures that were available and medically necessary to
accommodate the disability. Davis v. Microsoft Corp., 149 Wash. 2d 521, 532, 70
P.3d 126 (2003).
It is undisputed that Hollis had two disabilities (her diabetes and her
workplace injury to her rotator cuff and finger) and that she gave SCMEO notice
of these disabilities and their limitations. But Hollis presented no evidence that
raises a genuine issue of material fact as to whether SCMEO failed to
accommodate those disabilities.
Hollis argues that she provided evidence that she was ridiculed for
requesting breaks, accused of attempting to take control of the schedule, and
monitored in the bathroom. These allegations all relate to Hollis's ability to take
breaks. But the record shows that after her complaints in 2013 and 2015, Oie
and Dr. Selove, respectfully, told Hollis that she should take breaks as necessary
to manage her diabetes and let them know if she had any problems doing so.
Hollis does not point to any evidence in the record that after those
accommodations were made, she told Oie or Dr. Selove that the
accommodations were not working because she was not able to take her breaks
or that she needed alternative accommodations. Because Hollis did not
communicate to SCMEO that the accommodations it provided were not working,
she has not raised a genuine issue of material fact that it failed to accommodate
her diabetes. See Frisino v. Seattle Sch. Dist. No. 1, 160 Wash. App. 765, 783,
249 P.3d 1044(2011)(Because an employer "must be able to ascertain whether
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No. 78034-4-1/16
its efforts at accommodation have been effective," an employee "has a duty to
communicate to the employer whether the accommodation was effective.").
Hollis also argues that there is an issue of fact as to whether SCMEO
failed to reasonably accommodate her workplace injury. Specifically, Hollis
argues that despite a restriction that she not lift or push anything over five
pounds with her right arm, she could still lift and transport bodies with the
assistance of other first responders or apparatuses.
But "Washington law is well settled that to prove a claim for failure to
accommodate, a plaintiff must demonstrate that he or she can perform the
essential functions of the job as determined and applied by the employer—not
that the employer could revamp the essential functions of a job to fit the
employee." Fey v. State, 174 Wash. App. 435, 452, 300 P.3d 435 (2013). "[A]n
employer's duty to reasonably accommodate a disabled worker does not require
the employer 'to alter the fundamental nature of the job, or to eliminate or
reassign essential job functions." Fey, 174 Wn. App. at 452(quoting Pulcino V.
Fed'I Express Corp., 141 Wash. 2d 629, 644, 9 P.3d 787(2000), overruled in part
on other grounds la McClarty v. Totem Elec., 157 Wash. 2d 214, 137 P.3d 844
(2006)).
Here, the record includes a description of the essential tasks for medical
investigators, which states that Hollis must be able to lift and carry "in excess of
100# . . . while removing larger bodies from scene," "lift in excess of 100# while
moving deceased bodies" and pull "in excess of 100 # of initial force to remove
gurney from truck." SCMEO was not required to eliminate these essential tasks
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No. 78034-4-1/17
or reassign them to other first responders at a scene. Furthermore, the essential
task description does not describe any apparatuses that would allow an
employee with a five-pound restriction on lifting and pushing to perform these
essential tasks alone. Therefore, Hollis did not raise an issue of fact that she
was able to perform the job's essential tasks with an accommodation. Summary
judgment was proper.
Second, Hollis waived any argument that her disability discrimination claim
was improperly dismissed because she raised it for the first time in her reply
brief. Cowiche Canyon, 118 Wash. 2d at 809. Although Hollis argues that she
provided circumstantial evidence of her disability discrimination claim in her
opening brief, the portion of the opening brief cited is part of the retaliation
argument and does not address disability discrimination. Therefore, this
argument fails.
For the reasons described above, we affirm the summary judgment
dismissal of Hollis's claims.
WE CONCUR:
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