Toni Gamble v. City Of Seattle

FIL.00
COURT OF APPEALS DIV I
STATE OF WASHINGTON
,2018 DEC 24 AM 10: 07
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
TONI GAMBLE, ) No. 76876-0-1
)
Appellant, )
) DIVISION ONE
v. )
)
CITY OF SEATTLE, a municipal ) PUBLISHED OPINION
corporation, )
)
Respondent. ) FILED: December 24, 2018
)
MANN,A.C.J. — Toni Gamble sued Seattle City Light (City Light) alleging that it
failed to reasonably accommodate her disability in violation of the Washington Law
Against Discrimination (WLAD), chapter 49.60 RCW. The trial court granted summary
judgment in favor of City Light after concluding that Gamble failed to establish a prima
facie case for a failure to reasonably accommodate. We affirm the trial court.
Gamble began working for the City of Seattle (City) as a laborer in 1987. In
1989, Gamble suffered a work related back injury. By 1996, the injury had worsened to
where Gamble could no longer work as a laborer. Gamble transferred to a position as
an Electrical Service Representative (representative) with City Light, a public utility and
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department of the City. As a representative, Gamble provided customer service support
to City Light's customers while working out of City Light's South Service Center in the
SODO/Georgetown area.
To accommodate her back injury, Gamble's then manager, Bryan Leuschen,
provided her with a standing desk, rubber floor mat, and padded seat cushions for her
work vehicle. Leuschen also allowed Gamble to work a "four ten" schedule,' which
allowed her to have every Wednesday off, and allowed her to work a part time flex
schedule after she underwent an unrelated surgery.2
In 2012, Leuschen retired and Jon Trout became Gamble's permanent
supervisor. From August through December 2012, Trout occasionally asked Gamble to
work out of the City Light's North Service Center. Then, in December 2012, Trout
asked Gamble to assist an overburdened senior representative by covering Seattle's
Queen Anne and Magnolia neighborhoods, out of the North Center.
On February 26, 2013, Gamble was almost in a motor vehicle collision while
driving a City Light vehicle. The event caused her to hurt her shoulder and aggravate
her back. As a result, Gamble went on medical leave from February 27, 2013 through
July 1,2013.
In 2015, Gamble sued City Light alleging, among other things, that it had failed to
reasonably accommodate her disability in violation of the WLAD. Gamble alleged that
City Light failed to accommodate her by removing her standing work station, and by
1 A four ten schedule allows an employee to work four days per week with ten hour shifts each
day.
2 While this schedule benefitted Gamble's medical condition it is not clear if it was officially offered
to her as an accommodation because everyone who worked for Gamble's unit was allowed to work four
tens.
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failing to provide her with a rubber mat at the North Center. Gamble also alleged that
meetings and work duties were scheduled at times and places that required her to drive
more than was necessary. Further, Gamble alleged that after her 2013 medical leave
City Light failed to allow her to work a four ten schedule, prevented her from returning to
work on a part time flex schedule, and refused to let her work from home. Finally,
Gamble alleged that City Light refused to let her switch her day off on one particular
incident so that she could attend a doctor's appointment.
Before trial, Gamble moved for summary judgment on her failure to
accommodate claim. The City responded with a cross motion for summary judgment.
The trial court denied Gamble's motion and granted the City's motion. Gamble's other
claims then went to a jury, who returned a verdict in favor of the City on all counts.
Gamble appeals the trial court's grant of the City's motion for summary judgment, denial
of her motion for summary judgment, and denial of her motion for reconsideration.
We review decisions on summary judgment de novo. Michak v. Transnation Title
Ins. Co., 148 Wn.2d 788, 794,64 P.3d 22(2003). When reviewing a summary
judgment decision, we "engage[] in the same inquiry as the trial court." Hines v. Todd
Pacific Shipyards Corp., 127 Wn. App. 356, 366, 112 P.3d 522 (2005). Summary
judgment is appropriate if, viewing the facts and reasonable inferences in the light most
favorable to the nonmoving party, there is no genuine issue of material fact and the
moving party is entitled to judgment as a matter of law. CR 56(c); Hines, 127 Wn. App.
at 366.
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Claims arising under the WLAD are typically inappropriate for resolution at
summary judgment "because the WLAD 'mandates liberal construction' and the
evidence will generally contain reasonable but competing inferences of both
discrimination and nondiscrimination that must be resolved by a jury." Johnson v.
Chevron U.S.A., Inc., 159 Wn. App. 18, 27, 244 P.3d 438(2010)(citing RCW
49.60.020). We will nevertheless "grant summary judgment when the plaintiff fails to
raise a genuine issue of fact on one or more prima facie elements." Johnson, 159 Wn.
App. at 27.
The WLAD prohibits an employer from discriminating against any person
because of "the presence of any sensory, mental, or physical disability[,]" RCW
49.60.180(3), and provides a cause of action "when the employer fails to take steps
reasonably necessary to accommodate an employee's" disability. Johnson, 159 Wn.
App. at 27. The WLAD defines disability as "the presence of a sensory, mental, or
physical impairment that: (i) is medically cognizable. .. or (ii) exists as a record or
history; or (iii) is perceived to exist." RCW 49.60.040(7)(a).
To set out a prima facie case for a failure to reasonably accommodate a
disability, the plaintiff must show that(1) the employee had a sensory, mental, or
physical abnormality that substantially limited his or her ability to perform the job, and
either (a) the impairment had a substantially limiting effect on the individual's ability to
perform the job, the individual's ability to apply or be considered for a job, or the
individual's access to equal benefits, privileges, or terms or conditions of employment or
(b) the employee put the employer on notice of the impairment's existence and medical
documentation established a reasonable likelihood that engaging in the job functions
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without an accommodation would create a substantially limiting effect;(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. See Davis v. Microsoft Corp., 149 Wn.2d 521, 532,70 P.3d 126 (2003);
Johnson, 159 Wn. App. at 28; RCW 49.60.040(7)(d).
Employers have an obligation to accommodate an employee's disability unless it
"would impose an undue hardship on the conduct of the employer's business." Doe v.
Boeing Co., 121 Wn.2d 8, 18, 846 P.2d 531 (1993). This duty "is limited to those steps
reasonably necessary to enable the employee to perform his or her job." Doe, 121
Wn.2d at 18. And this duty "does not arise until the employer is aware of
the... disability and physical limitations." Goodman v. Boeing Co., 127 Wn.2d 401,
408, 899 P.2d 1265 (1995). The onus is on the employee to "giv[e] the employer notice
of the disability." Goodman, 127 Wn.2d at 408 (internal citations removed). The
employee also "retains a duty to cooperate with the employer's efforts.. ..[The WLAD]
thus envisions an exchange between employer and employee where each seeks and
shares information to achieve the best" possible results. Goodman, 127 Wn.2d at 408-
09 (internal citations removed).
Gamble has a qualifying disability under the WLAD. Gamble's back injury
required her to change jobs in 1996 and required City Light to provide her with
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accommodations. Therefore, her back injury was a physical impairment that was both
medically cognizable and existed as a record or history. RCW 49.60.040(7)(a)(i)-(ii).
But to establish a prima facie case for a failure to accommodate, Gamble has to
show more than just a qualifying disability. She also has to show that her disability
substantially limited her ability to perform her job,3 that she notified City Light of her
need for accommodations, and that upon notice City Light failed to affirmatively adopt
reasonable accommodations. RCW 49.60.040(7)(d); Davis, 149 Wn.2d at 532;
Johnson, 159 Wn. App. at 28. It is the latter two of these requirements that are lacking.
Even if we assume that Gamble's back injury had a substantially limiting effect, for each
of City Light's alleged failures, Gamble either failed to notify City Light of her need for
updated accommodations, or City Light reasonably accommodated her needs.
A.
City Light appropriately accommodated Gamble's request for a standing work
station. When Gamble was temporarily transferred to the North Center she told Trout
that she required a standing work station. While Trout did not respond to her request
with the speed that Gamble desired, she contacted the facilities department herself and
City Light provided her a standing work station.4
City Light also appropriately accommodated Gamble's request for a part-time
schedule after returning from medical leave. On Monday June 24, 2013, Gamble
contacted City Light and asked if she could return to work part time that Tuesday, June
3 Or alternatively, that medical documentation established a reasonable likelihood that engaging
in her job without an accommodation would create a substantially limiting effect. RCW 49.60.040(7)(d)(ii).
4 We decline to address whether the month delay in Gamble receiving the standing work station,
in and of itself, amounted to a WLAD violation because the parties did not brief this issue. Norcon
Builders, LLC v. GMP Homes VG, LLC, 161 Wn. App. 474, 486, 254 P.3d 835(2011)(We "will not
consider an inadequately briefed argument.")
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25, and Thursday, June 27, and then full time the following week. Trout replied that he
did not have any work for her the next day, but that he would "work[] with the
team ... to create a modified work schedule for[Gamble]that will meet [her] physical
restrictions."
While Gamble alleges that this was a failure to reasonably accommodate her
disability, the WLAD "does not require an employer to offer the employee the precise
accommodation he or she requests." Doe, 121 Wn.2d at 20. It was unreasonable for
Gamble to contact City Light after being on medical leave for months and expect to be
accommodated the next day. Trout did not deny her request for accommodation but
instead informed her that he would be able to accommodate her request the next week.
Gamble chose to return to work full time the following week, and was able to do so
without incident. This was not a failure to accommodate.
B.
For the majority of Gamble's allegations, she failed to properly put City Light on
notice of her need for accommodations. Gamble argues that because City Light and
Leuschen were on notice of her disability since 1996, that this notice was imputed to
Trout in 2012. See Kimbro v. Atl. Richfield Co., 998 F.2d 869, 876 (9th Cir. 1989)
(finding the employer to be on constructive notice of the employee's disability when the
employee's manager had actual knowledge of the disability). We agree. But here the
relevant issue is not whether City Light was on notice of Gamble's disability but rather
whether City Light was on notice that her previous accommodations were no longer
reasonably accommodating her disability. City Light's knowledge of Gamble's disability
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does not relieve Gamble of her duty to inform City Light that her accommodations were
lacking.
An employer must be able to ascertain whether its efforts at
accommodation have been effective in order to determine whether more is
required to discharge its duty. The employee therefore has a duty to
communicate to the employer whether the accommodation was effective.
This duty flows from the mutual obligations of the interactive process. To
hold otherwise would be inequitable to the employer and would undercut
the statute's goal of keeping the employee with the impairment on the job.
Frisino v. Seattle School Dist. No. 1, 160 Wn. App. 765, 783, 249 P.3d 1044(2011)
(internal citation omitted)(citing Goodman, 127 Wn.2d at 408-09). The WLAD envisions
an exchange between the employer and the employee to ensure that the employee's
needs are properly addressed. See Goodman, 127 Wn.2d at 408 ("Reasonable
accommodation [is] an exchange between employer and employee").
At oral argument, Gamble's counsel asserted that the exchange between
employer and employee is only necessary before an individual is determined to have a
qualifying disability. RCW 49.06.040(7)(d) provides "[o]nly for the purposes of qualifying
for reasonable accommodation in employment, an impairment must be known or shown
through an interactive process." But just because an interactive process is required
when determining whether a qualifying disability exists, does not mean that an
interactive process is not also required for determining the reasonableness of
accommodations. Gamble offers no support for the proposition that an employee never
has to go back to the employer with their ongoing concerns, and our decision in Frisino
counsels otherwise. See 160 Wn. App. at 779 ("[T]he best way for the employer and
employee to determine a reasonable accommodation [(not a qualifying disability)] is
through a flexible, interactive process."(emphasis added)).
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Here, Gamble failed to inform City Light that she required a rubber mat at the
North Service Center. In fact, she testified that she never asked anyone for a rubber
mat because "a little floor mat was not worth bothering anyone about." Gamble also
never discussed with Trout how her work schedule was affecting her back. To the
contrary, she testified that on the days that she was at work she was never forced to
miss a work requirement because of her back.
Similarly, Gamble never asked for permission to work from home as an
accommodation. Gamble testified at her deposition that she asked Trout permission to
work from home in order to have "more quiet time and private time to do" her work.5
And Leuschen only allowed Gamble to work from home occasionally. He explained,
'We did a little experiment .. . I didn't approve a full 8 hours of work at home; she was
able to be productive for 2-4 hours [and] had to come in for supervision." The trial court
noted:"She was never told she could work at home. She was told she could work on
occasion... but her job is a face-to-face job." Therefore, Gamble did not put City Light
on notice that she needed to work from home as an accommodation for her disability.
Gamble alleged that City Light failed to allow her to adjust her schedule for a
doctor's appointment. Gamble asked Trout if she could switch her day off from
Wednesday, October 3 to Friday, October 5, but did not specify this was because of a
doctor's appointment. Trout asked Gamble to keep her regular day off because a
training had previously been scheduled for October 5 that Gamble, as the training
supervisor, was supposed to lead. One of Gamble's duties as a supervising
representative includes "planning and directing employee training." Gamble agreed to
5 Gamble also asked Trout for permission to work from home once because her mule was sick.
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keep her scheduled day off, but then took a sick day on October 5 anyway. Gamble
never notified City Light that she required the schedule change to accommodate her
disability or because she had a doctor's appointment that day, and she took October 5th
off in any event.
C.
Gamble's allegation that City Light failed to reasonably accommodate her by
preventing her from working a four ten schedule requires a separate analysis. Before
Gamble left on medical leave, Gamble was allowed to work a four ten schedule. When
viewed in the light most favorable to Gamble, this schedule was offered to her as an
accommodation. While Gamble was on leave, City Light changed its policy and no
longer allowed anyone to work four tens. Gamble's four ten schedule was the only
accommodation that was at least arguably removed. However, neither Gamble nor City
Light discussed the sufficiency of the new schedule or whether it reasonably
accommodated Gamble. Therefore, the question becomes whose duty it was to
discuss the sufficiency of Gamble's new schedule with the other.
In Frisino, this court analyzed whether a school district's trial and error process
of finding appropriate accommodation was reasonable. 160 Wn. App. at 779. The
court noted that the employee had the burden to communicate with the employer
because "determining whether the accommodation[s] w[ere] effective turned on
information in [the employee's] control." Frisino, 160 Wn. App. at 783.
Here, upon returning from leave, Gamble requested to work the new schedule
which allowed for one day off every two weeks: "I understand that we are no longer
working 4/10's so I would like the [new]schedule with alternating Wednesdays off." City
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Light granted her request. Therefore, as far as City Light knew, Gamble's new schedule
was precisely the accommodation that she desired. Had this schedule been insufficient
that was information solely in Gamble's control.
In Conneen v. MBNA America Bank, N.A., the Third Circuit analyzed a similar
situation under the Americans with Disabilities Act(ADA). 334 F.3d 319(3rd Cir. 2003).
There, Conneen suffered from a disability that made it difficult for her to arrive at work
on time, and MBNA accommodated her by allowing her to work an adjusted schedule.
MBNA later came under the impression that Conneen no longer required her
accommodation. Upon the removal of her accommodation, Conneen did not inform
MBNA that her disability remained or that she still require the adjusted schedule. See
Conneen, 334 F.3d at 321-24. In affirming the trial court's grant of summary judgment
in favor of MBNA,the Third Circuit noted that "neither the law nor common sense can
demand clairvoyance of an employer." Conneen, 334 F.3d at 331.
Conneen is similar to Gamble's situation. In Conneen, the employee was
previously accommodated but when her accommodations were removed she failed to
inform her employer of an issue. Conneen, 334 F.3d at 321. Similarly, here, Gamble's
four ten accommodation was removed but Gamble never told City Light that this was an
issue. In Conneen, MBNA "had every reason to believe that the [disability] no longer
existed... and [Conneen] did nothing to inform [MBNA]that it did." Conneen, 334 F.3d
at 331. Further,"once[MBNA]threatened to withdraw the accommodation,[Conneen]
remained silent. [She] never contacted [her doctor], and never notified [MBNA]of her
condition." Conneen, 334 F.3d at 333. Similarly here, City Light had every reason to
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believe that the new schedule was reasonably accommodating Gamble and she did not
put City Light on notice that it was insufficient.
The burden fell to Gamble to inform City Light that she required a four ten
schedule as an accommodation for her disability. Not only did Gamble fail to inform City
Light that her new schedule was negatively impacting her disability, but she specifically
requested the new schedule. Therefore, City Light did not violate the WLAD by failing
to provide Gamble with a four ten schedule.
We affirm.
igtil, 4p.v--
WE CONCUR:
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