Shannon Kries et vir v. WA-SPOK Primary Care, LLC

FILED
SEPTEMBER 10,2015
In the Office of the Clerk of Court
W A State Court of Appeals, Division III
IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
DIVISION THREE
SHANNON KRIES AND PETER KRIES, )
) No. 32879-1-111
Appellants, )
)
v. )
)
WA-SPOK PRIMARY CARE, LLC, ) PUBLISHED OPINION
)
Respondent. )
FEARING. J. - This appeal discusses whether a health clinic must employ or
provide a reasonable accommodation to a wounded employee, when the clinic asserts
concerns about the wound spreading infection to patients. The trial court granted
defendant WA-SPOK Primary Care, LLC, dba Women's Clinic at Deaconess Hospital
summary judgment and dismissed plaintiff Shannon Kries' disability discrimination suit.
Because of disputed material facts, we reverse.
FACTS
Shannon Kries bore a surgical wound with inserted drains that led her employer,
the Women's Clinic, to discharge her from employment. This statement of facts
describes Kries' wound, explains the healing process of wounds, analyzes the risks of
wounds, provides the treatment history for Kries' wound, recounts employment policies
at the Women's Clinic, and relates the clinic's responses to Kries' attempts to return to
work. Because the trial court dismissed Shannon Kries' claim for disability
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Kries v. WA-SPOK Primary Care, LLC
discrimination on summary judgment, we present the fact~ in a light most favorable to
Kries.
Shannon Kries is a trained medical assistant. In 2007, while employed at
Community Health Association of Spokane (CHAS), Kries underwent a panniculectomy,
the removal of excess skin around the abdomen after weight loss. The surgery left an
open wound. Defense expert, Dr. Michael Gillum, concedes that Shannon Kries' wound
was a physiological condition identified in medical records, prerequisites for
consideration as a disability under state law. CHAS allowed Kries to return to work after
her surgery as long as she packed and covered the wound as her doctor instructed. Kries
continued to work at CHAS through the end of 2009.
On December 31, 2009, the Women's Clinic at Deaconess Hospital hired Shannon
Kries as its lead medical assistant. In this position, Kries served as the clinic's
receptionist and assisted in taking patients' health history, vital signs, and blood.
Upon Shannon Kries' hire, the Women's Clinic instructed Kries to complete a
preplacement assessment questionnaire, which sought the employee's medical history.
Kries completed and signed the form, but did not date it. The completed form did not list
Kries' stomach surgery. Kries did not remember returning the completed form to the
Women's Clinic. Kries testified that she told clinic personnel about her wound.
Nevertheless, she did not recall informing her immediate supervisor about the wound
when she was hired.
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Shannon Kries' abdominal wound slowly healed at the time she commenced
employment with the Women's Clinic in January 2010. Kries cleaned the wound at
home in the morning and evening, packed the lesion with gauze, bandaged it, and
covered it with clothes. Kries never packed or dressed the wound while at work, and the
wound never weeped or leaked at the Women's Clinic. The Women's Clinic presented
no evidence that Kries passed an infection to a patient or employee.
On June 8, 2010, Shannon Kries sought treatment from Dr. Stephen Olson because
her abdominal wound stopped healing. Kries' original wound had decreased from thirty
two centimeters to fifteen centimeters in size, but remained at the smaller size for months.
Olson recommended surgery to stimulate healing. Kries spoke with her Women's Clinic
supervisor, Carolyn Barnes, and informed her that she needed leave for the surgery. The
clinic allowed Kries leave, even though her short tenure did not qualify her for leave
under the Family Medical Leave Act (FMLA).
On July 14,2010, Stephen Olson operated on Shannon Kries. Olson inserted two
drains through separate quarter inch skin incisions in the abdomen, and the drains exited
through two separate holes in the skin. Dr. Olson inserted the drains adjacent to the
wound. He sutured and stapled shut the wound.
On July 27,2010, Stephen Olson granted Shannon Kries an unrestricted release to
return to her Women's Clinic job with both medical drains in place. Olson considered
Kries' wound as closed, not open. In Olson's opinion, Kries did not pose a risk to herself
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It or others since work clothes covered the drains and the closed wound. The signed work
; release stated that Kries carried no infection.
I
I Mary Wise, a registered nurse and the Women's Clinic's employee health
coordinator, refused to permit Shannon Kries reemployment until Kries' abdominal
wound fully healed. Wise based her decision on the clinic's infection control policy.
The opening sentence to the nine-page policy read:
No one is allowed to work with an open or draining wound.
Clerk's Papers (CP) at 248. Neither the infection control policy nor the return to work
policy defined "open or draining wound." According to Dr. Michael Gillum, Deaconess
Hospital chair of the Infection Control Committee, the policy applies "across the board,"
regardless of whether the employee holds a patient care position or non-patient care
position. CP at 367.
The Women's Clinic also maintained a "Policy for Return to Work with
Restrictions following Non-Work Related Injury, Surgery, or Personal Medical
Conditions" (return to work policy). CP at 445. The return to work policy differentiated
between direct patient care and non-patient care work employees. The policy read, in
relevant part:
Part 1: All employees involved in direct patient care regardless of
job code ...
A. Restrictions that will NOT be allowed in patient care are as
follows:
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No sutures or open wounds on hands or forearms.
B. Restrictions that may be allowed in patient care areas with
the approval of Employee Health and the department manager are as
follows:
Sutures or wounds that can be completely covered, other than
hands/forearms (i.e. chest, leg, face).
Part 2: All employees in non-patient care areas (Administrative,
Medical records, PFS, etc.)
B. Restrictions that may be allowed in non-patient care areas
with the approval of Employee Health and the department manager
are as follows:
Sutures or wounds that can be completely covered.
CP at 445. The return to work policy was silent on whether or not an employee with an
inserted drain could return to work.
According to Sharyl Bergerud, director of infection control at Deaconess Hospital,
the Women's Clinic conducts an evaluation of an employee on a "case-by-case" basis to
assess the status of a wound and, in turn, whether the employee may return to work. CP
at 335. Importantly, no one examined Shannon Kries' wound or drains to determine if
restrictions would be appropriate and capable of allowing Kries to return to work in either
a patient care or non-patient care position.
Shannon Kries' immediate supervisor, Carolyn Barnes, spoke with clinic Human
Resources Department and Employee Health Care Coordinator Mary Wise about
returning Kries to work. Barnes learned that Kries could not return in any capacity so
long as Kries had a draining wound because the infection control policy governed.
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Barnes could have provided Kries non-patient care work if the Women's Clinic allowed
Kries to return to employment. Kries wanted to return to work in any capacity and would
accept a reduction in pay. She made weekly calls to Wise and Carolyn Barnes to update
them on her progress and inquire about other positions.
The various medical professionals testifying in this case, including the parties'
experts, offered diverse definitions of "open wound" and "draining wound." Dr. Stephen
Olson, Shannon Kries' attending general surgeon, defined an "open wound" as one that
had a break in the skin when the dermis and epidermis are not intact. CP at 337. He
defined a "draining wound" as one where drainage came out of the wound. CP at 337.
He opined that one could have a draining wound without it being an open wound. Olson
did not consider Kries' wound to be an open wound. After surgery, he closed the wound
with staples. The wound remained closed despite the drains, because each drain exited
through the skin and not through the wound.
Dr. Francis Riedo, the medical director of infection control and medical director of
employee health at Evergreen Hospital in Kirkland, Washington, testified as an expert
witness for Shannon Kries. Dr. Riedo noted redundancy in the infection control policy
provision that referenced "open and draining wounds." According to Riedo, an open
wound is always draining. CP at 360. Since the policy does not preclude working with a
closed wound, Riedo read the policy to allow work with a closed wound that is draining.
Therefore, Riedo considered a "draining wound," under the infection control policy, as
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one that could not be contained and controlled. A covered wound, with its drainage
controlled, was not an open or "draining wound."
According to Dr. Francis Riedo, an employer needs an unambiguous policy and
the Women's Clinic's infection control policy is ambiguous. Riedo noted that employees
leak secretions constantly from their genitals, mouths, and noses. Therefore, for the
Women's Clinic policy to make sense, a draining wound should be an uncontrolled
draining.
Defense witness Dr. Michael Gillum, chair of the Deaconess Hospital Infection
Control Committee, did not know why the infection control policy did not define the
terms "open wound" or "draining wound." He did not believe "any wound that is open"
to be a helpful definition. CP at 371. To Gillum, the term "open wound" is self-
explanatory and meant any wound not healed. CP at 371. According to Gillum, a
scabbed wound is an "open wound." CP at 371. Gillum opined that any open wound
was a "draining wound" and so he considered the two synonymous. CP at 371. He also
deemed a sutured wound to be a closed wound. One with a sutured wound may return to
work, according to Gillum. Dr. Gillum did not know if the Women's Clinic allowed an
employee with a colostomy, ileostomy, peripherally inserted central catheter (PICC line),
or insulin pump to work.
Sharyl Bergerud, director of infection control at Deaconess Hospital, testified
about language in the Women's Clinic's return to work policy that allowed an "employee
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not involved in patient care to return to work so long as the worker had "[s ]utures or
wounds that can be completely covered." CP at 299. Bergerud interpreted the provision
to be a per se exclusion on any "open wound." CP at 334. Bergerud could not identify
any other writing that supported her interpretation of the conflicting Women's Clinic
policies. She also attested that the clinic would need to review an employee with a
permanent apparatus, such as a colostomy bag, on a "case-by-case basis" to determine
whether the clinic could grant a workplace accommodation. CP at 334.
Women's Clinic Employee Health Coordinator Mary Wise's duties included
assessing an employee's fitness to return to work. Wise believed any unhealed wound to
be an "open wound." CP at 405. A wound needed complete healing or a scab for a
wounded employee to return to work.
The physician witnesses, in addition to disagreeing on a definition of "open or
draining wound," sparred on whether Shannon Kries posed a risk to patients of the
Women's Clinic. Dr. Stephen Olson, Kries' treating physician, felt that if Kries' clothing
covered the wound and drains, she did not pose a risk to someone else. Kries would not
infect any patients, as she had no active infection when she was first cleared for work.
Olson opined that the drain would not limit her ability to perform her essential job
functions.
Dr. Francis Riedo, an infection control physician, opined that Kries was not a risk
to return to work as long as she covered the wound with an appropriate dressing and
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clothing and the wound was uninfected. Under such conditions, Kries posed no greater
risk of transmitting infection from her wound or drain tubes to another person than
anyone else in the workplace. Dr. Riedo observed that, under the Women's Clinic return
to work policy, open or sutured wounds on the hands and forearms are not allowed.
Therefore, open wounds on other areas of the body are allowed if they can be covered
completely. According to Riedo, Kries could and did cover her wound completely and so
was eligible to return to work in her regular job as a medical assistant.
Dr. Francis Riedo testified that the Women's Clinic failed to follow its decision
making process to resolve a difference in opinion with an employee about the
interpretation of the infection control policy. He maintained that under the Women's
Clinic policy, the Employee Health Office of the clinic should have consulted with the
chair of the clinic's Infection Control Committee or the medical director for employee
health. The clinic should have encouraged direct discussions between the two physicians
to resolve questions of Shannon Kries' employment with the least restrictive means to
enable Kries to continue work. Upon Kries' seeking a return to employment, the clinic
failed to contact or consult with Dr. Gillum, chair of the Infection Control Committee, or
the medical director of employee health.
Dr. Francis Riedo further observed that, other than on September 13, 2010, the
Women's Clinic took no cultures from Shannon Kries to establish if she was infected.
Without cultures evidencing an infection, the clinic should have deferred to the treating
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surgeon's judgment and experience in releasing a patient to work. According to Riedo, a
strict policy of no employment with an open or draining wound assumes incorrectly that
every wound is infected and that no wound or body fluid can be effectively contained.
This line of reasoning would by extension lead to a policy of preclusion from
employment of anyone with a colostomy bag, periodontal disease, and even a woman
during her menstrual cycle. Dr. Riedo testified that a potential risk of infection is not a
sufficient reason to prevent someone from working.
•
Dr. Michael Gillum testified that he did not know whether the United States
Center for Disease Control issued recommendations that a health care employee should
not work with an open or draining wound. Gillum knew of no medical literature that
suggested a person who has an open or draining wound should not return to work in any
capacity. Although Gillum approved the Women's Clinic infection control policy at the
time of its adoption, Gillum did not know the basis or genesis of the policy.
According to Dr. Gillum, Sharyl Bergerud would act reasonably if she contacted
an infection specialist physician before excluding an employee with a wound from
working. Bergerud would have also acted sensibly to consult with Dr. Stephen Olson,
Shannon Kries' treating physician, before refusing Kries a return to work.
Dr. Michael Gillum opined that the return of Shannon Kries to labor at the
Women's Clinic posed an unacceptable risk because of the possibility that, even with the
wound packed in gauze and sealed in tape, the wound could leak. The risk of an open
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wound is colonization of bacteria and transmittal of the infection to another.
Nevertheless, Gillum conceded that Kries, as a medical assistant, would recognize any
leaking. He worried about whether Kries could promptly rectifY the leaking.
The Women's Clinic return to work policy allowed an employee with a sealed
wound in the forearm to return to employment. Michael Gillum conceded that a sealed
forearm wound posed a greater risk than Shannon Kries' abdominal wound. During his
deposition, Dr. Gillum was asked ifhe would disagree with the Women's Clinic granting
Shannon Kries ajob with minimal patient contact. Gillum's only response was that the
return to work would violate employment policy.
On August 19,2010, Shannon Kries sought additional treatment from Dr. Stephen
Olson after Kries accidentally detached the abdominal wound drains while exiting from
bed. Olson performed a computed tomography (CT) scan and discovered an abscess
reSUlting from bacteria inside the healed drain incision. On August 19, Olson drained the
abscess' fluid and inserted a new drain in Kries' abdomen. On August 30, 2010, Kries
contacted Olson's office and requested antibiotics for chills, nausea, and redness around
the drain area.
On Friday, September 10,2010, Dr. Stephen Olson again released Shannon Kries
to return to work. Olson signed a note which stated: "Drain is out. May return to work."
°
CP at 1 1. On September 10, Mary Wise completed Women's Clinic paperwork to
return Kries to work, noting "drain is out ©." CP at 258. Nevertheless, infection
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returned to Kries' wound over the weekend, and Kries did not return to work as planned
on Monday, September 13. On September 13, a fevered Kries entered the hospital, where
health care providers administered intravenous antibiotics and inserted another drain to
tap the infected fluid.
On September 15, 2010, Dr. Stephen Olson's nurse gave Shannon Kries a note
stating "Pt had a Drainage Tube placed surgically in the Abdominal Wall on Monday,
September 13,2010. Per Dr. K. Stephen Olson." CP at 434. Olson instructed his nurse
to write the note. During a deposition, Olson confirmed that the nurse wrote the
September 13 note on a return to work form, but he admitted that the note did not include
an express authorization to return to work. Kries viewed the note as a release to return to
work and delivered it to Mary Wise. Due to replacement of the wound drain, Wise
denied Kries' request to return to work. Wise informed Kries of the futility of bringing
any further return to work forms while Kries suffered an open wound. Wise added that,
even if a wound is covered, the Women's Clinic considers the wound "open." CP at 405.
The rule is black and white to the clinic.
On October 5, 2010, Shannon Kries visited with Dr. Stephen Olson. By October
5, Kries' original abdominal wound had healed, but the drain remained. After speaking
with Kries, Olson called the Women's Clinic and informed the clinic that Kries could
return to work with the drain without posing harm to others. The clinic again refused
Kries' request to return to work. The clinic's Infection Control Department responded to
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Dr. Olson: "I'm sorry, that's our policy." CP at 346. According to Sharyl Bergerud, the
infection control policy governs over a physician's permission to return.
On October 21,2010, Shannon Kries returned to Dr. Stephen Olson because the
drainage from the wound turned foul. A culture of Kries' wound drainage revealed two
forms of bacteria, beta strep and Peptostreptococcus, which are sources of infection.
On October 22, Dr. Olson opened Kries' drain tract and found an abscess, which
Olson packed with gauze in the hopes of final healing. After this procedure, Kries no
longer carried a drain. Instead the wound drained into the gauze. By November 5, 2010,
Kries still endured an open wound with more than usual draining. On November 14, Dr.
Olson performed a CT scan and found another deeper abscess, which he drained.
On November 16, 2010, the clinic terminated Shannon Kries from employment.
The termination letter stated:
Deaconess Medical Center [Women's Clinic] has exhausted all
options providing you time away from work.
Because of your inability to perform the essential functions of your
position, Deaconess Medical Center will be separating your employment
effective November 16, 2010. You are eligible for rehire, should you wish
to return to Deaconess Medical Center when you are able.
Deaconess Medical Center is an equal opportunity employer and
encourages you to submit your resume through our electronic applicant
system for any position that you believe you are qualified for. Open
positions are posted daily at www.deaconessmc.com.
CP at 435.
By November 23,2010, Shannon Kries' abdominal wound had undergone
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substantial healing. Dr. Michael Gillum, the Women's Clinic's expert, testified that
Kries' wound healed by the end of November 2010 and she could have returned to work
then.
In both December 2010 and January 2011, the Women's Clinic sought the hire of
a medical records clerk. The medical records clerk was not involved in direct patient
care. In January 2011, the clinic also sought to employ a receptionist.
PROCEDURE
Shannon Kries sued the Women's Clinic for disability discrimination and failure
to reasonably accommodate her, a form of disability discrimination. After substantial
discovery, the clinic filed a motion for summary judgment to dismiss all claims. The trial
court granted the motion. In a written decision, the trial court listed twenty "undisputed
facts," including:
3. Prior to employment with the Clinic, Ms. Kries had surgery
which left her with an open wound. Unbeknownst to the Clinic, Ms. Kries
had this open wound from the time she began her employment through July
2010.
4. On July 14,2010, Ms. Kries underwent surgery in an attempt to
close the wound. This surgery resulted in drains being installed in the
wound.
6. On July 27, 2010, Ms. Kries's treating physician gave written
notice clearing her to return to work. Despite the treating physician's
clearance, the Clinic refused to allow Ms. Kries to return to work based
upon the criteria of the Infection Control Policy and the fact that Ms. Kries
had a draining wound.
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10. Based upon the wound being closed, the drains being removed,
and the treating physician's clearance allowing Ms. Kries to return to work,
the Clinic accepted Ms. Kries back to work. She was scheduled to return
the following Monday, September 13,2010. The weekend prior to her
return to work, Ms. Kries suffered an infection and drains were again
inserted.
11. On September 15,2010, Ms. Kries presented another note to the
Clinic from her treating physician but this note stated that drains had been
inserted. Unlike the two previous notes, this note was not clearance to
return to work.
12. Following this note, Ms. Kries failed to provide any subsequent
documentation from her treating physician authorizing her to return to
work.
16. With the exception ofthe weekend of September 12,2010,
during Ms. Kries's entire employment with the Clinic, she had either an
open wound or draining wound.
17. The Infection Control Policy and the Return to Work Policy are
not in conflict with each other; the latter is a broad policy and the former
narrows the scope based on safety concerns for patients and employees.
18. The Return to Work Policy expressly states that an employee
with sutures or wounds that can be completely covered may be allowed to
return to work.
19. The Infection Control Policy placed the contingency that the
wound not be open or draining and also addressed the issue of pus forming
skin infection.
20. While Ms. Kries may have been allowed to return to work with
her wound covered, it was not a guarantee and was restricted by the
Infection Control Policy.
CP at 483-85.
LAW AND ANALYSIS
Shannon Kries assigns error to the trial court's (1) dismissing of her claim that the
Women's Clinic failed to provide her a reasonable accommodation, (2) concluding that
Kries' physical condition prevented her from establishing a prima facie case of failure to
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provide a reasonable accommodation~ (3) concluding that the infection control policy
controlled and barred this suit~ (4) ignoring the terms of the return to work policy, which
allowed an employee to work with a covered wound, and (5) entering undisputed facts 3,
4,6, 10, 11, 12, 16, 17, and 20. We conclude that material facts raise triable questions of:
(1) whether the infection control policy~ when read with the return to work policy,
applied to bar the return of Shannon Kries to employment; (2) whether Shannon Kries
bore an "open wound"; (3) whether the absence of an open wound is an essential job
function of a medical assistant at the Women's Clinic; (4) whether the clinic's infection
policy is a reasonable policy that trumps disability discrimination laws; and (5) whether
the clinic reasonably accommodated Shannon Kries' disability. On any of these five
grounds~ reversal of the summary judgment dismissal is required.
We sing the standard refrain of summary judgment principles. This appellate
court reviews a trial court's order granting summary judgment de novo. Briggs v. Nova
Servs.~ 166 Wash. 2d 794~ 801,213 P.3d 910 (2009). Summary judgment is appropriate if
the pleadings, depositions, answers to interrogatories, and admissions on file, together
with the affidavits, if any, show that there is no genuine issue as to any material fact and
that the moving party is entitled to a judgment as a matter oflaw. CR 56(c). A material
fact is one on which the outcome of the litigation depends in whole or in part. Ranger
Ins. Co. v. Pierce County, 164 Wn.2d 545,552, 192 P.3d 886 (2008); Morris v. McNicol,
83 Wn.2d 491,494,519 P.2d 7 (1974). In a summary judgment motion, the burden is on
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the moving party to demonstrate that there is no genuine issue as to a material fact and
that, as a matter of law, summary judgment is proper. Hartley v. State, 103 Wash. 2d 768,
774,698 P.2d 77 (1985). This court construes all facts and reasonable inferences in the
light most favorable to the nonmoving party. Barber v. Bankers Life & Cas. Co., 81
Wash. 2d 140, 142,500 P.2d 88 (1972); Wilson v. Steinbach, 98 Wash. 2d 434, 437,656 P.2d
1030 (1982).
Findings of Fact
The trial court did not explicitly enter findings of fact, but listed twenty facts it
concluded the parties did not dispute. Regardless of the labeling of the trial court's facts
as findings or undisputed facts, we are not bound by them. Although Shannon Kries
challenged some of the facts on the list, a challenge was unnecessary. Findings of fact
and conclusions of law are inappropriate on summary judgment. Oltman v. Holland Am.
Line USA, Inc., 163 Wn.2d 236,249 n.lO, 178 P.3d 981 (2008); Hemenway v. Miller, 116
Wn.2d 725,731,807 P.2d 863 (1991). Findings of fact on summary judgment are not
proper, are superfluous, and are not considered by the appellate court. Chelan County
Deputy Sherifft' Ass 'n v. County o/Chelan, 109 Wash. 2d 282, 294 n.6, 745 P.2d 1 (1987).
Infection Control Policy
The Women's Clinic claims its infection control policy barred Shannon Kries
from a return to work. We first address whether the policy applied to Kries'
circumstances. We also discuss whether the clinic's return to work policy modified the
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strictures of the infection control policy. In a later section, we will assume that the
infection control policy precluded Shannon Kries' return to work, and we will ask
whether the policy violates disability discrimination law. We answer this additional
question in order to identify for the parties other questions of fact for the jury to resolve
on remand.
The infection control policy precluded an employee from working "with an open
or draining wound." CP at 248. Neither the infection control policy nor the return to
work policy defined "open" or "draining" wound. Note that open wound and draining
wound are in the disjunctive under the policy.
The trial court concluded that, as a matter of law, Shannon Kries had both an open
and draining wound within the meaning of the infection control policy. This conclusion
was error.
Dr. Francis Riedo, Shannon Kries' well qualified expert on infectious disease,
defined a "draining wound" as one that could not be contained and controlled. Stated
differently, according to Riedo, a covered wound, with its drainage controlled, is not an
open or "draining wound." Dr. Riedo noted redundancy in the infection control policy
provision that referenced "open or draining wounds." According to Riedo, an open
wound is always draining. Therefore, the term "draining wound" in the Women's Clinic
infection policy must be narrowed, otherwise it adds no meaning to the policy. Since the
infection control policy does not preclude working with a closed wound, Riedo reads the
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policy to allow work with a closed wound that is draining, as long as the draining is
contained and controlled. Therefore, Kries did not have an open or draining wound.
Dr. Michael Gillum, the Women's Clinic's expert and chair of the Deaconess
Hospital Infection Control Committee, opined that any open wound was a "draining
wound" and any sutured wound was a closed wound. Gillum's equating of an open
wound with a draining wound is problematic since his testimony assigns no meaning to
one of the disjunctive terms in the infection control policy. Although Gillum concluded
that Shannon Kries wore an open wound, he contradicted himself when he characterized
a sutured wound as a closed wound. Shannon Kries' wound was stapled and sutured.
The Women's Clinic's infection control policy was not strictly a contract.
Nevertheless, the clinic used the policy as terms controlling the employment of Shannon
Kries such that the policy may be treated as part of the employment contract.
The meaning of a contract provision is a mixed question of law and fact, because
we ascertain the intent of the contracting parties by viewing the contract as a whole, the
subject matter and objective of the contract, all the circumstances surrounding the making
of the contract, the subsequent acts and conduct of the parties to the contract, and the
reasonableness of the interpretations advocated by the parties. Berg v. Hudesman, 115
Wn.2d 657,666-67,801 P.2d 222 (1990). On the one hand, when the facts are
undisputed, such as when the parties agree that the contract language controls and there is
no extrinsic evidence to be presented, courts may decide the issue as a matter of law.
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Trinity Universal Ins. Co. ofKansas v. Ohio Cas. Ins. Co., 176 Wn. App. 185,202 n.8,
312 P.3d 976 (2013), review denied, 179 Wn.2d 1010,316 P.3d 494 (2014). Summary
judgment on an issue of contract interpretation is proper when the parties' written
contract, viewed in light of the parties' other objective manifestations, has only one
reasonable meaning. Hall v. Custom Craft Fixtures, Inc., 87 Wn. App. 1,9,937 P.2d
1143 (1997). On the other hand, the trial court should deny a summary judgment motion
regarding interpretation of a contract provision when (1) the interpretation depends on the
use of extrinsic evidence or (2) more than one reasonable inference can be drawn from
the extrinsic evidence. Scott Galvanizing, Inc. v. Nw, EnviroServices, Inc., 120 Wn.2d
573,582,844 P.2d 428 (1993); Berg v. Hudesman, 115 Wash. 2d at 668. Also, if two or
more meanings are reasonable, a question of fact is presented. GMAC v. Everett
Chevrolet, Inc., 179 Wash. App. 126, 135,317 P.3d 1074, review denied, 181 Wash. 2d 1008,
335 P.3d 941 (2014).
In the case on appeal, the Women's Clinic has not identified the author of the
infection control policy, who might enlighten a trier of fact as to the background and
meaning of "open and draining wound" language. Michael Gillum approved the policy,
but does not recall having done so.
Experts in infection control attach various meanings to the subject language.
From a lay perspective, the differing interpretations are reasonable and raise an issue of
fact for the trial court to resolve during the course of a trial, be it a bench or jury trial. Dr.
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Riedo's testimony alone establishes a factual question, but inconsistencies in the
testimony of Women's Clinic's witness also establish a question of fact.
Expert opinion on contract interpretation is usually inadmissible. In re Tobacco
Cases I, 186 Cal. App. 4th 42, 51, 111 Cal. Rptr. 3d 313 (2010). Nevertheless, expert
testimony may be admitted to assist a trier of fact in construing an ambiguity in a
technical or scientific written instrument. Okland Oil Co. v. Conoco Inc., 144 FJd 1308,
1328 (10th Cir. 1998); WH Smith Hotel Servs., Inc. v. Wendy's Int'l, Inc., 25 F.3d 422,
429 (7th Cir. 1994); Valley View Dev., Inc. v. United States ex reI. Us. Army Corps of
Eng'rs, 721 F. Supp. 2d 1024, 1048 (N.D. Okla. 2010). Expert testimony can be used to
explain the meaning of technical terms and words of art. Phillips Oil Co. v. OKC Corp.,
812 F.2d 265,281-82 (5th Cir. 1987); Mariner Energy, Inc. v. Devon Energy Prod. Co.,
690 F. Supp. 2d 558, 571 (S.D. Tex. 2010), affd, 571 Fed. Appx. 226 (2013).
As a general proposition, courts do not permit expert testimony to construe or
interpret the meaning of contract language. We conclude, however, that an exception to
this general proposition applies to permit the trier of fact to entertain the testimony of the
health care providers to construe the phrase "open or draining wound." The infection
control policy contains medical language that deserves an exegesis from medical experts.
Language in the Women's Clinic's return to work policy conflicts with the
language in the infection control policy, or at least the interpretation given by the
Women's Clinic to the infection control policy. This discord also manifests an issue of
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fact. The Women's Clinic's return to work policy allowed an employee not involved in
patient care to return to work so long as she had "sutures or wounds that can be
completely covered." CP at 445. Shannon Kries' primary tasks did not involve patient
care. More importantly, Kries' supervisor could have returned Kries to tasks not
involving any patient care, but for the Women's Clinic's allegiance to the ambiguous
policy. The trial court determined that the infection control policy, as a specific policy,
controlled over the return to work policy, a general policy. None of the language in
either policy supports one policy's controlling over the other.
The Women's Clinic's confused application ofits infection control policy also
raises questions of fact. Sharyl Bergerud, director of infection control at Deaconess
Hospital, testified that the Women's Clinic conducts an evaluation of an employee on a
"case-by-case" basis to assess the status of a wound and, in turn, whether the employee
may return to work. No one examined Shannon Kries' wound or drains to determine if
restrictions would be appropriate and capable of allowing Kries to return to work in either
a patient care or non-patient care position. Bergerud also attested that the clinic would
need to review an employee with a permanent apparatus, such as a colostomy bag, on a
"case-by-case basis" to determine whether the clinic could grant a workplace
accommodation. Again, the Women's Clinic did not independently assess the danger, or
lack thereof, of Shannon Kries' wound, but rather applied a per se exclusion. The
Women's Clinic refused to consult with Shannon Kries' treating physician, Stephen
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Olson.
The Women's Clinic return to work policy allowed an employee with a sealed
wound in the forearm to return to employment. Dr. Michael Gillum, chair of the
Deaconess Hospital Infection Control Committee and Women's Clinic expert witness,
conceded that a sealed forearm wound posed a greater risk than Shannon Kries'
abdominal wound.
As Shannon Kries correctly notes, the effect of employer policies and disclaimers
is normally a question of fact for the jury. Swanson v. Liquid Air Corp., 118 Wash. 2d 512,
534,826 P.2d 664 (1992). Moreover, a disclaimer may be negated by inconsistent
employer representations and practices. Swanson, 118 Wash. 2d at 534. The clinic's staff
admitted it had not conducted the same case-by-case analysis of Kries' wound promoted
by its policy to conduct, even after Kries received multiple clearances from her doctor.
Sharyl Bergerud admitted that no clinic document or writing existed to support the
clinic's opinion about the order in which the two policies at issue here should be
interpreted and applied with the infection control policy narrowing the scope of the return
to work policy.
In short, vagaries, ambiguities, inconsistencies, and discrepancies raise issues of
fact as to whether the Women's Clinic's infection control policy excluding "open and
draining wounds" barred Shannon Kries' return to work either with or without
accommodations. For this reason alone, the trial court's summary judgment dismissal of
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Kries' suit was error. The rest of this opinion analyzes whether the facts preclude
summary judgment on any of the other defenses to disability discrimination asserted by
the clinic. They do not.
Essential Job Function
The Women's Clinic contends that the ability to comply with its infection control
policy is an essential function of any clinic job. The source, on which the Women's
Clinic relies for establishing the essential job function, differs from the typical source.
Most employers produce a job description that lists the essential job functions for discrete
job titles. Nevertheless, the Women's Clinic did not file with the court any job
description in support of its summary judgment motion. Instead the Women's Clinic
depended on an infection control policy that presumably applies to every employee of the
clinic.
An essential job function usually refers to the ability to perform a discrete task
assigned by the employer to the worker's job position. Shannon Kries is capable of
performing all of the tasks assigned by the clinic to a medical assistant. The clinic argues
instead that Kries should not perform any tasks because of a danger she poses to patients
of the clinic. We assume that the Women's Clinic argues that the absence of an open or
draining wound is an essential job function of every job position at the clinic.
Perhaps in recognition of the awkwardness in relying on an essential job function
argument, the Women's Clinic asserts the defenses of a safety based qualification
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standard, business necessity, and direct threat to patients. We will address these defenses
later.
The Washington Law Against Discrimination (WLAD) provides, in part:
It is an unfair practice for any employer:
(2) To discharge or bar any person from employment because of ...
the presence of any sensory, mental, or physical disability ...
RCW 49.60.180. The WLAD defines "disability" as:
(a) ... the presence of a sensory, mental, or physical impairment
that:
(i) Is medically cognizable or diagnosable; or
(ii) Exists as a record or history; or
(iii) Is perceived to exist whether or not it exists in fact.
(b) A disability exists whether it is temporary or permanent,
common or uncommon, mitigated or unmitigated, or whether or not it
limits the ability to work generally or work at a particular job or whether or
not it limits any other activity within the scope of this chapter.
RCW 49.60.040(7). The WLAD shall be construed liberally for the accomplishment of
the purposes thereof. RCW 49.60.020.
To survive summary judgment on her claim of discrimination, Kries must at a
minimum present evidence that: (l) she had a disability; and (2) she could perform the
essential functions of her job, with or without reasonable accommodations. Davis v.
Microsoft Corp., 149 Wn.2d 521,532,70 P.3d 126 (2003); Easley v. Sea-Land Serv.,
Inc., 99 Wn. App. 459,468,994 P.2d 271 (2000). The Women's Clinic agrees that, at
least for purposes of its summary judgment motion, Shannon Kries suffered from a
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disability. Its own expert conceded the disability. The Women's Clinic, at least for
purposes of summary judgment, does not deny it terminated the employment of Shannon
Kries because of her disability. We focus now on whether the infection control policy
imposed an essential job function.
The term "essential job function" is not found in the employment anti­
discrimination statute, RCW 49.60.180. Thus the statute does not define the phrase.
Rather, Washington courts have adopted the definition promulgated by the Equal
Employment Opportunity Commission when interpreting the Americans with Disabilities
Act (ADA), the federal counterpart to the Washington law against discrimination. Davis
v. Microsoft Corp., 149 Wash. 2d at 533; Herring v. Dep't ofSoc. & Health Servs., 81 Wn.
App. 1,27 n.12, 914 P.2d 67 (1996). Washington courts have employed the federal
definition to instruct juries on the meaning of "essential functions." Easley v. Sea-Land
Serv., Inc., 99 Wash. App. at 468.
"... The term essential functions means the fundamental job duties of the
employment position the individual with a disability holds or desires. The term 'essential
functions' does not include the marginal functions of the position." 29 C.F.R. §
1630.2(n)(1) (2012) (emphasis added). Our Supreme Court elaborated by interpreting the
term "essential function" as a job duty that is fundamental, basic, necessary, and
indispensable to filling a particular position, as opposed to a marginal duty divorced from
the essence or substance of the job. Davis v. Microsoft Corp., 149 Wash. 2d at 533 (citing
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WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 777 (3d ed. 1976)). "Job duties"
are defined as "obligatory tasks, conduct, service, or functions enjoined by order or usage
according to rank, occupation, or profession." Davis v. Microsoft Corp., 149 Wash. 2d at
533 (citing WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 705 (3d ed. 1976)).
The term "functions" or "job duties" cannot be construed simply as "tasks"; rather, the
term "essential functions" must refer not only to the tasks and activities that are
indispensable to the job, but also to the "conduct" and "service" required of the
employee. Davis v. Microsoft Corp., 149 Wash. 2d at 533-34.
Shannon Kries could perform all functions of a medical assistant. The Women's
Clinic worries about whether, in performing those functions, Kries may harm patients,
but that possible harm was related to Kries' medical condition, not to her ability to
perform discrete tasks assigned to the job.
A decision, on which the Women's Clinic relies, is Bates v. United Parcel Serv.,
Inc., 511 F.3d 974 (9th Cir. 2007). Bates distinguishes between "essential functions" ofa
job and "qualification standards" for the position. Essential functions are basic duties.
Qualification standards include personal and professional attributes that may include
physical, medical, and safety requirements. In drawing this distinction, the court relied
on definitions of the terms, under ADA regulations, found respectively in 29 C.F.R. §
1630.2(n)(1) and § 1630.2(q). A qualification standard applies to a person with a
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disability who applies for a job and meets all selection criteria except one that he or she
cannot meet because of a disability.
In Bates v. United Parcel Service, Inc., hearing impaired applicants for a package
driver position with United Parcel Service (UPS) sued under the ADA. UPS denied them
employment because they failed a United States Department of Transportation (DOT)
hearing test. The applicants prevailed in the trial court. On appeal, the applicants argued
they satisfied the essential job functions of the position which were an ability to
communicate with customers and safe driving. UPS contended that hearing at the level
to pass the DOT test was an essential job function. Both the trial court and the Ninth
Circuit rejected UPS' argument. The Ninth Circuit reversed and remanded because the
lower court failed to make a finding that the applicants met the requirement of being a
safe driver. In so ruling, the court noted that the determination of essential functions is a
factual finding.
Shannon Kries at least establishes that there is a question of fact as to whether she
meets the essential job function of a medical assistant. She may even conclusively
establish this criteria. She worked in the position for three years, six months of which
was with the Women's Clinic. The clinic's reliance on its infection control policy better
fits under another pigeonhole of disability discrimination law.
Safety Based Qualification Standard
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The Women's Clinic characterizes its infection control policy as a "safety based
qualification standard." The clinic then contends that an employer may discharge an
employee from employment because of a safety based qualification standard even though
she has a disability so long as the standard (I) is job-related, (2) is consistent with
business necessity, and (3) no reasonable accommodation exists. The clinic cites Bates v.
United Parcel Serv., Inc., 511 F.3d at 996 (9th Cir. 2007) for this proposition.
No Washington decision has adopted a safety based qualification standard as a
defense in a disability discrimination case. No case adjudicating rights under
Washington's law against discrimination has even employed the term. The defense,
however, is similar in nature to Washington's bona fide occupational qualification
(BFOQ) defense. A BFOQ defense is not available under the ADA. Morton v. United
Parcel Servo Inc., 272 F.3d 1249, 1261 (9th Cir. 2001), overruled on other grounds by
Bates V. United Parcel Serv., 511 F.3d at 996. Bates couched the three-part test as the
"business necessity" defense. Bates v. United Parcel Serv., Inc., 511 F.3d at 996.
RCW 49.60.180(2) prohibits an employer from discharging an employee due to a
disability, but the subsection allows no defense based on a bona fide occupational
qualification. RCW 49.60.180(1) forbids the refusal to hire based on an applicant's
disability, and the subsection creates a defense based on a bona fide occupational
qualification. The section addressing discharge from employment omits any reference to
the defense, whereas the section mentioning hiring expressly allows the defense. This
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anomaly begs the question: did the legislature wish to deny the defense in a case where
the employer discharges a disabled employee? The Women's Clinic terminated Shannon
Kries' employment, rather than denying her application for employment. Why would the
legislature distinguish from a wrongful discharge and wrongful refusal to hire case for
purposes of the defense?
The relevant portion ofRCW 49.60.180 reads:
It is an unfair practice for any employer:
(1) To refuse to hire any person because of age, sex, marital status,
sexual orientation, race, creed, color, national origin, honorably discharged
veteran or military status, or the presence ofany sensory, mental, or
physical disability or the use of a trained dog guide or service animal by a
person with a disability, unless based upon a bona fide occupational
qualification: PROVIDED, That the prohibition against discrimination
because ofsuch disability shall not apply if the particular disability
prevents the proper performance ofthe particular worker involved:
PROVIDED, That this section shall not be construed to require an
employer to establish employment goals or quotas based on sexual
orientation.
(2) To discharge or bar any person from employment because of
age, sex, marital status, sexual orientation, race, creed, color, national
origin, honorably discharged veteran or military status, or the presence of
any sensory, mental, or physical disability or the use of a trained dog guide
or service animal by a person with a disability.
(Emphasis added.)
The court's duty in statutory interpretation is to discern and implement the
legislature's intent. Lowy v. PeaceHealth, 174 Wash. 2d 769, 779, 280 P.3d 1078 (2012).
We consider the statute's plain meaning by looking at the text of the provision at issue, as
well as the context of the statute in which that provision is found. State v. Jacobs, 154
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Wn.2d 596, 600, 115 P.3d 281 (2005). Courts should interpret statutes in a way that
avoids a strained or unrealistic interpretation. In re Pers. Restraint ofBrady, 154 Wn.
App. 189, 193,224 P.3d 842 (2010). Statutes should also be given a rational, sensible
construction. State v. Thomas, 121 Wash. 2d 504, 512, 851 P.2d 673 (1993).
We conclude that the defense of a bona fide occupational qualification is available
to the employer in a discharge case in addition to a refusal to hire case. The legislature
awkwardly drafted RCW 49.60.180. The legislature likely intended for the language in
subsection (1) concerning a bona fide occupational qualification to carry over to
subsection (2). The proviso that the disabled person be capable of proper performance of
the job is also found in subsection (1), but not in subsection (2). Nevertheless, case law
requires the worker to be capable to perform the job duties in both a wrongful discharge
case and a refusal to hire case. Frisino v. Seattle Sch. Dist. No.1, 160 Wash. App. 765,
778,249 PJd 1044 (2011). The Supreme Court and this court has already applied the
bona fide occupational qualification defense in a wrongful discharge case. Brady v.
Daily World, 105 Wash. 2d 770, 718 P.2d 785 (1986); Rhodes v. URM Stores, Inc., 95 Wn.
App. 794, 977 P .2d 651 (1999) .
. We see no reason to distinguish between a discharge case and refusal to hire case
for purposes of the bona fide occupational qualification defense. The legislature may be
more reluctant to allow the discharge from employment of a disabled worker than to
allow a refusal to hire, since the discharged worker presumably has relied on his or her
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job for months, if not years. Nevertheless, the employer deserves an employee capable of
performing the job regardless if that person is a current employee or a potential applicant
for employment.
Since we determined that the bona fide occupational qualification defense is
available in this discharge suit, we must decide if the Women's Clinic established the
defense as a matter of law. The Washington State Human Rights Commission
promulgated a regulation that assists to a limited extent. The regulation reads. in relevant
part.
Under the law against discrimination, there is an exception to the
rule that an employer ... may not discriminate on the basis of protected
status; that is if a bona fide occupational qualification (BFOQ) applies. The
commission believes that the BFOQ exception should be applied narrowly
to jobs for which a particular quality of protected status will be essential to
or will contribute to the accomplishment of the purposes of the job. The
following examples illustrate how the commission applies BFOQs:
(1) Where it is necessary for the purpose of authenticity or
genuineness (e.g., model, actor, actress) or maintaining conventional
standards of sexual privacy (e.g., locker room attendant, intimate apparel
fitter) the commission will consider protected status to be a BFOQ.
(2) A 911 emergency response service needs operators who are
bilingual in English and Spanish. The job qualification should be spoken
language competency, not national origin.
(3) An employer refuses to consider a person with a disability for a
receptionist position on the basis that the person's disability "would make
customers and other coworkers uncomfortable." This is not a valid BFOQ.
WAC 162-16-240.
The Women's Clinic infection control policy intentionally excluded a class of
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people with open wounds. The bona fide occupational qualification arises often when the
employer intentionally excludes a class of disabled individuals from employment. The
law is most wary of an employer's facial discrimination against a protected class. Fey v.
State, 174 Wash. App. 435, 447, 300 P.3d 435 (2013), review denied, 179 Wn.2d 1029,320
P.3d 720 (2014). In disparate treatment cases alleging facial discrimination, the
employer's defense of a bona fide occupational qualification is narrowly construed. Fey
v. State, 174 Wash. App. at 447.
Under federal law, to legitimately rely on a facially discriminatory qualification,
the employer must either have a factual basis for believing that all or substantially all
persons who lack the qualification would be unable to safely and efficiently perform the
duties of the job, or be able to prove that some excluded employees would be unable to
perform safely and efficiently and it is impossible or highly impractical for the employer
to distinguish the employees who do or do not present the risk. W Air Lines, Inc. v.
Criswell, 472 U.S. 400, 414, 105 S. Ct. 2743, 86 L. Ed. 2d 321 (1985). Washington
courts have adopted this narrow construction of the bona fide occupational qualification
defense to a claim of disparate treatment under the Washington's law against
discrimination. Hegwine v. Longview Fibre Co., 162 Wn.2d 340,358, 172 P.3d 688
(2007); Franklin County Sheriff's Office v. Sellers, 97 Wash. 2d 317, 326, 646 P.2d 113
(1982). Only a strong correlation supports a facially discriminatory bona fide
occupational qualification. Fey v. State, 174 Wash. App. at 448. Otherwise, the law
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requires that an employer couch job qualifications in neutral terms. Fey v. State, 174 Wn.
App. at 448.
Several Washington cases have addressed employer policies that discriminated
against disabled workers when the employer claimed the policy constituted a bona fide
occupational qualification. A review of these cases shows that Shannon Kries raises a
legitimate question of fact as to whether the Women's Clinic infection control policy
suffices as a bona fide occupational qualification defense.
In Tinjum v. Atlantic Richfield Co., 109 Wash. App. 203, 34 P.3d 855 (2001), a truck
driver brought a discrimination action against an oil company, which refused to employ
him because he was an insulin-dependent diabetic. The trial court concluded that
Atlantic Richfield Company and Arco Products Company (ARCO) had an absolute
defense to the handicap discrimination claim based on a federal regulation. Employers
engaged in interstate commerce are prohibited by 49 C.F.R. § 391.41 from employing
insulin-dependent diabetics as commercial truck drivers. This court reversed because the
record was not sufficiently developed for a determination that the job Tinjum sought
involved transporting petroleum in interstate commerce. If the position only involved
transporting petroleum in intrastate commerce, ARCO did not have a defense to the
handicap discrimination claim based on the federal regulation.
The Tinjum court did not expressly hold that ARCO could not sustain a bona fide
• occupational qualification defense without the federal regulation. Nevertheless, the court
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cited federal cases in which a disabled employee, not the employer, was granted
summary judgment on the defense.
In Rhodes v. URM Stores, Inc., 95 Wash. App. 794, 977 P.2d 651 (1999), this court
affirmed a summary judgment dismissal of George Rhodes' handicap discrimination
claim against his former employer URM Stores. URM fired Rhodes from his job as a
truck driver the second time he tested positive for controlled substances. This court held
. that the anti-drug policy expressed in the employment handbook was a reasonable safety
precaution applicable to all ofURM's employees and is thus a bona fide occupational
qualification. The occupational qualification applied with added force with the inherent
dangers in driving a truck on public roads while under the influence of mind-altering
drugs.
In Blanchette v. Spokane County Fire Protection District No.1, 67 Wash. App. 499,
836 P.2d 858 (1992), this court reversed a summary judgment order dismissing Edward
Blanchette's handicap discrimination suit against a prospective employer, Spokane
County Fire Protection District 1. The fire district relied on the Minimum Medical
Standards for Firefighters in Washington Cities and Fire Districts to disqualify Blanchette
from employment because he had Crohn's disease. The trial court ruled, as a matter of
law, that the standards established a valid bona fide occupational qualification. One
physician cleared Blanchette to work as a firefighter. The fire district's physician
recommended that Blanchette not be hired because ofCrohn's disease. The physician
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based his recommendation on his belief that the medical standards excluded all persons
with Crohn's disease from employment.
In Blanchette, we noted that, once the employee showed disability discrimination,
the employer could defend itselfby showing (1) the particular disability prevented the
proper performance of the particular worker involved, or (2) a particular worker cannot
satisfy a bona fide occupational qualification. We considered only whether the record
conclusively demonstrated the medical standards established freedom from Crohn's
disease as a valid bona fide occupational qualification. The fire district needed to prove
that all or substantially all persons with Crohn's disease could not properly perform the
duties of a fire fighter. Blanchette produced medical evidence contradicting the
assumption in the medical standards that persons with Crohn's disease will suffer a
debilitating recurrence ofthe disease, particularly if they have undergone surgery. Thus,
genuine issues of material fact precluded summary judgment.
In Rose v. Hanna Mining Co., 94 Wash. 2d 307, 616 P.2d 1229 (1980), the
Evergreen State high court also reversed a summary judgment order dismissing a claim
of disability discrimination. The employer operated a ferro-silicon smelter plant, where
Richard Rose applied for a job as a laborer. Hanna Mining denied Rose employment
solely because he was afflicted with the condition of epilepsy. In a summary judgment
order, the trial court found complete freedom from epilepsy to be a bona fide
occupational qualification for working as a laborer in the smelter. The work area was
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No. 32879-1-III
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extremely hazardous, involving working around molten metal with a temperature as high
as 3,240 degrees Fahrenheit. Among other dangerous functions, the laborer climbed
ladders directly above semi-molten material at a temperature as high as 1,600 degrees
Fahrenheit. According to a written company policy, Hanna Mining denied employment,
except for office positions, to all persons with a history of "convulsive disorders." A list
of "defects" expressly precluding employment included epilepsy.
Richard Rose experienced three grand mal seizures during his life, the last
occurring seven years before applying for employment with Hanna Mining. He claimed
his grand mal seizures were under control by medication. He admitted to lesser seizures
which involved rapid eye blinking and nausea, but did not entail falling or convulsing.
During these seizures, his activities were slowed for a few moments, but not interrupted.
The seizures were preceded by a warning long enough and prominent enough to allow
him to change his position before the seizure occurred.
Hanna Mining's physician testified that every epileptic was unsuitable for working
as a general laborer at the smelter. In addition, this physician surmised an ever-present
possibility that Rose might lose awareness and at times consciousness for a brief period
such that he could not safely perform the job of laborer. The physician who testified for
Rose, a specialist in epilepsy, disagreed. This second physician concluded that the
working conditions would not tend to precipitate a seizure and that, because Rose has a
warning before each seizure and does not have involuntary motor activity, Rose's
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condition would not present a significant danger to himself or to others in the
performance of any task, except for operating the overhead crane.
The Rose court noted the difference between an essential job function and a bona
fide occupational qualification. The ability to do the job is part of the definition of
disability discrimination; a bona fide occupational qualification is an exception to the rule
of nondiscrimination because of disability. To assure that standard qualifications do not
discriminate against applicants who can properly perform the work despite a handicap,
the bona fide occupational qualifications must be narrowly drafted to describe the very
minimum required. The employer must show that all or substantially all persons who do
not possess the qualifications would not be able to perform the work safely and
efficiently within the limits of reasonable accommodation. The Supreme Court held
there to be a genuine issue of material fact as to whether substantially all persons with
epilepsy could not perform the work safely.
Shannon Kries' case parallels Rose, Blanchette, and Tinjum rather than Rhodes.
Kries forwards expert testimony that persons with wounds can safely serve as medical
assistants. Indeed, the clinic's own policy admits that some wounds do not completely
bar an employee from returning to work in either patient or non-patient care. Conversely,
Kries thwarts, with admissible medical testimony, the Women's Clinic's position that all
or substantially all persons with wounds cannot work at the clinic. The opinion
testimony thwarts the clinic's position no matter if the wound is open or closed and no
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matter how one defines "open wound."
Dr. Stephen Olson opined that, since Kries' clothing covered the wound and
drains, she did not pose a risk to someone else. Kries would not infect any patients, as
she had no active infection when she was cleared for work. Other employees at the clinic
with similar wounds could also cover the wound to eliminate any risks to patients and
coworkers.
Dr. Francis Riedo opined that Kries was not a risk to return to work as long as she
covered the wound with an appropriate dressing and clothing and the wound was
uninfected. Under such conditions, Kries posed no greater risk of transmitting infection
from her wound or drain tubes to another person than anyone else in the workplace.
Riedo observed that, under the Women's Clinic return to work policy, open or sutured
wounds on the hands and forearms are not allowed. Therefore, open wounds on other
areas of the body are allowed if they can be covered completely. According to Riedo,
Kries could and did cover her wound completely and so was eligible to return to work in
her regular job as a medical assistant.
Under federal law, the determination that an individual poses a "direct threat" to
the safety of others must be based on an individualized assessment of the individual's
ability to perform safely the essential functions of the job. 29 C.F.R. § 1630.2(r). The
Women's Clinic applied a per se exclusion of Shannon Kries without individually
analyzing her threat to others. Upon Kries' seeking a return to employment, the clinic
39
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failed to contact or consult with Dr. Gillum, chair of the Infection Control Committee, or
the medical director of employee health. The clinic refused to place Dr. Gillum in
contact with Kries' treating physician, Stephen Olson.
Dr. Francis Riedo observed that, other than on September 13,2010, the Women's
Clinic took no cultures from Shannon Kries to establish if she was infected. Without
cultures evidencing an infection, the clinic should have deferred to the treating surgeon's
judgment and experience in releasing a patient to work. According to Riedo, a strict
policy of no employment with an open or draining wound assumes incorrectly that every
wound is infected and that no wound or body fluid can be effectively contained. This
line of reasoning would by extension lead to a policy of preclusion from employment of
anyone with a colostomy bag, periodontal disease, and even a woman during her
menstrual cycle.
During his deposition, Dr. Michael Gillum, the clinic's expert, was asked ifhe
would disagree if the Women's Clinic granted Shannon Kries ajob with minimal patient
contact. Gillum's only response was that Kries' return to work would violate
employment policy. This response illustrates a close minded view of the clinic and its
desire to apply stereotypes to an injured employee. Prohibitions against disability
discrimination seek to rid the workplace of negative attitudes and practices toward the
disabled that resemble those commonly applied to the underprivileged ethnic and
religious minority groups. Sch. Bd. a/Nassau County v. Arline, 480 U.S. 273, 278, n.2,
40
No. 32879-1-II1
Kries v. WA-SPOK Primary Care, LLC
107 S. Ct. 1123,94 L. Ed. 2d 307 (1987). On the one hand, a medical clinic should take
extra precautions to prevent infection of patients. On the other hand, a medical clinic
should take added steps to prevent discrimination of the wounded and disabled.
The Women's Clinic repeatedly told Shannon Kries that she needed to be fully
healed in order to return to work. Federal courts have repetitively held that a policy of
"100% healed" is a per se violation of the Americans with Disabilities Act. McGregor v.
Nat'l R.R. Passenger Corp., 187 F.3d 1113, 1116 (9th Cir. 1999); Hendricks-Robinson v.
Excel Corp., 154 F.3d 685,699 (7th Cir. 1998); Weigel v. Target Stores, 122 F.3d 461,
466 (7th Cir. 1997); Hutchinson v. United Parcel Serv., Inc., 883 F. Supp. 379, 396 (N.D.
Iowa 1995); Sarsycki v. United Parcel Serv., 862 F. Supp. 336, 341 (W.D. Okla. 1994).
Two federal cases examine concerns of an employee spreading an infection more
serious than the nature of Shannon Kries' infection. In each case, the federal court
reversed a summary judgment dismissal of a disability discrimination suit. Because our
discrimination laws substantially parallel Title VII of the Civil Rights Act, we may look
to federal law for guidance. Phanna K. Xieng v. Peoples Nat 'I Bank, 120 Wash. 2d 512,
518,844 P.2d 389 (1993); Washington v. Boeing Co., 105 Wn. App. 1,8,19 P.3d 1041
(2000).
In the first of the two decisions, School Board ofNassau County v. Arline, 480
U.S. 273 (1987), the nation's high Court allowed a teacher with tuberculosis to proceed
with an ADA claim despite the school district's fear that she may infect students with the
41
No. 32879-I-II1
Kries v. WA-SPOK Primary Care, LLC
disease. The Court noted that allowing discrimination based on the contagious effects of
a physical impairment would be inconsistent with the basic purpose of the ADA.
Society's accumulated myths and fears about disability and disease are as handicapping
as are the physical limitations that flow from actual impairment. The Court wrote:
The fact that some persons who have contagious diseases may pose a
serious health threat to others under certain circumstances does not justify
excluding from the coverage of the Act all persons with actual or perceived
contagious diseases. Such exclusion would mean that those accused of
being contagious would never have the opportunity to have their condition
evaluated in light of medical evidence and a determination made as to
whether they were "otherwise qualified." Rather, they would be vulnerable
to discrimination on the basis of mythology-precisely the type of injury
Congress sought to prevent. We conclude that the fact that a person with a
record of a physical impairment is also contagious does not suffice to
remove that person from coverage under § 504 [ADA].
480 U.S. at 285-86. (footnotes omitted).
The second persuasive case involving an employee's risk of infection is Holiday v.
City o/Chattanooga, 206 F.3d 637 (6th Cir. 2000). The city of Chattanooga denied
Louis Holiday's application as a police officer because of his HIV infection. The city
justified the denial of employment on the risk to coworkers and the public from blood to
blood contact during police work. Holiday sued for disability discrimination under the
ADA. The appellate court reversed a summary judgment dismissal granted to the city.
The court held that Holiday was entitled to be evaluated based on his actual abilities and
the relevant medical evidence and to be protected from discrimination founded on fear,
ignorance or misconceptions.
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No. 32879-1-I11
Kries v. WA-SPOK Primary Care, LLC
The Women's Clinic emphasizes the nature of its business and appeals to the need
to sterilize its premises from any infection. The clinic notes that it services pregnant
women and provides postdelivery care to mothers and children who are highly
susceptible to infection. It mentions a Centers for Disease Control and Prevention (CDC)
report that hospital acquired infections pose significant threats to patients treated in
healthcare institutions and add billions of dollars to healthcare costs. Another CDC
report concludes that one out of twenty-five patients are infected as a result of care while
at a hospital. The Women's Clinic highlights that Shannon Kries' position as lead
medical assistant was classified as "Blood Borne Pathogen Exposure I," which means the
position involved exposure to blood-borne pathogens. CP at 432. Exposure to blood-
borne pathogens creates a risk of infection to both the patient and the healthcare provider.
The Women's Clinic underscores Kries' duties as including direct patient interaction,
including checking patients in, checking a patient's vitals, blood pressure and weight, and
using syringes to give patients injections or take blood draws. Finally, the clinic notes
that wounds cannot be effectively monitored for infection because of the delay between
taking a wound culture and receiving test results.
The Women's Clinic expresses legitimate worries. But these concerns should be
shared with the trier of fact. Sufficient evidence contradicts all of these dire worries such
that a genuine issue of material fact exists as to whether freedom from wounds,
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No. 32879-1-111
Kries v. WA-SPOK Primary Care, LLC
particularly when curbed as controlled by Shannon Kries, is a bona fide occupational
qualification.
Business Necessity Defense
The Women's Clinic next relies on the business necessity defense as a shield to
Shannon Kries' disability discrimination suit. RCW 49.60.180 omits reference to a
business necessity defense. WAC 162-30-020(3)(b) adopts a business necessity defense
in the context of discriminating against a pregnant woman. No Washington regulation
applies this defense in other contexts of discrimination law.
When the employer couches occupational qualifications in neutral terms but the
qualifications create a disparate impact on disabled persons, Washington cases have
recognized "business necessity" as an affirmative defense for an employer responding to
a disparate impact claim. Shannon v. Pay 'N Save Corp., 104 Wash. 2d 722, 730, 709 P.2d
799 (1985). As previously stated, the bona fide occupational qualification, not the
business necessity, defense applies in disparate treatment cases. Because the clinic's
infection control policy purposely discriminated against all workers with wounds, we
decline consideration of the business necessity defense asserted by the clinic.
Another reason exists to decline application of the business necessity defense.
The defense is indirectly covered through our bona fide occupational qualification
analysis. In Kastanis v. Educational Employees Credit Union, 122 Wn.2d 483,493, 859
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No. 32879-1-111
Kries v. WA-SPOK Primary Care, LLC
P.2d 26,865 P.2d 507 (1993), the state Supreme Court, in a marital discrimination suit,
analyzed the two defenses as if they were the same.
Direct Threat
The Women's Clinic also mentions a defense of "direct threat." The ADA
contains language permitting an employer to exclude an applicant whose disability poses
a "direct threat" to others. Title 42 U.S.C. § 12113(a) provides:
It may be a defense to a charge of discrimination under this chapter
that an alleged application of qualification standards, tests, or selection
criteria that screen out or tend to screen out or otherwise deny a job or
benefit to an individual with a disability has been shown to be job-related
and consistent with business necessity, and such performance cannot be
accomplished by reasonable accommodation, as required under this
subchapter.
Title 42 U.S.C. § 12113(b) further provides: "The term 'qualification standards'
may include a requirement that an individual shall not pose a direct threat to the health or
safety of other individuals in the workplace." (Emphasis added.) The term "direct
threat" is defined as a "significant risk to the health or safety of others that cannot be
eliminated by reasonable accommodation." 42 U.S.c. § 12111(3). A slightly increased
risk is not enough, however; a "high probability" of substantial harm is required. See
ApPENDIX TO PART 1630, INTERPRETIVE GUIDANCE ON TITLE I OF THE AMERICANS WITH
DISABILITIES ACT(2014). A speculative or remote risk is insufficient. 29 C.F.R. §
1630.2(r). The determination that an individual poses a "direct threat" must be based on
an individualized assessment of the individual's ability to perform safely the essential
45
No. 32879-1-III
Kries v. WA-SPOK Primary Care, LLC
functions of the job. 29 C.F .R. § 1630.2(r). The factors to consider in determining
whether an individual poses a direct threat are: (1) the duration of the risk, (2) the nature
and severity of the potential harm, (3) the likelihood that the potential harm will occur,
and (4) the imminence of the potential harm. 29 C.F.R. § 1630.2(r). The employer bears
the burden of proving a worker is a direct threat. Rizzo v. Children's World Learning
Centers., Inc., 84 F.3d 758, 764 (5th Cir. 1996); Equal Emp't Opportunity Comm 'n v.
Union Pac. R. R., 6 F. Supp. 2d 1135, 1138 (D. Idaho 1998).
Washington law has no similar provision concerning an employee's direct threat
to others. We consider any such defense subsumed within the bona fide occupational
qualification defense. Cases we discussed in our section on a bona fide occupational
qualification included arguments by an employer that an employee's disease, including
infections, posed a direct threat to the public, customers, and coworkers. Thus, we
decline to discuss this argument further.
Reasonable Accommodation
An employer holds a duty to reasonably accommodate the disability of an
employee. Shannon Kries alleges that the Women's Clinic violated this duty.
To establish a prima facie case of failure to reasonably accommodate a disability,
a plaintiff must show that (1) the employee had a sensory, mental, or physical
abnormality that substantially limited his or her ability to perform the job; (2) the
employee was qualified to perform the essential functions of the job in question; (3) the
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No. 32879-I-III
Kries v. WA-SPOK Primary Care, LLC
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.
Davis v. Microsoft Corp., 149 Wash. 2d at 532 (2003); Hill v. BCTI Income Fund-I, 144
Wash. 2d 172, 192-93,23 P.3d 440 (2001), overruled on other grounds by McClarty v.
Totem Electric, 157 Wash. 2d 214, 137 P.3d 844 (2006). We have already concluded that
Shannon Kries suffered a disability and that an issue of fact exists as to whether Kries
could perform the essential functions of a medical assistant. Kries may have withheld
information from the Women's Clinic upon hire as to her wound. Nevertheless, she
testified she mentioned the wound to others at the clinic when hired. More importantly,
the clinic possessed knowledge of the wound months before Kries' termination from
employment. We must now decide whether some facts show that the clinic failed to
adopt available measures to accommodate Kries' disability.
The clinic contends that it held no obligation to offer Shannon Kries a reasonable
accommodation because her open and draining wound posed an unacceptable risk of
infection no matter what job position she held within the facility. As already analyzed
and determined, questions of fact exist as to whether Kries' wound posed an unacceptable
risk. Some medical testimony rejects the clinic's position.
The Women's Clinic also contends that Shannon Kries failed to present the clinic
with a valid return to work form after September 15,2010. Although, Dr. Stephen Olson
47
No. 32879-1-III
Kries v. WA-SPOK Primary Care, LLC
agreed that the fonn he signed did not expressly authorize a return to work, a reasonable
person could read the form to impliedly have authorized a return. The note was on a
return to work fonn. The clinic also forgets that Dr. Olson called on October 5,2010, to
infonn it that he cleared Kries to return to work. Finally, the clinic's contention is
hypertechnical since it would not allow Kries back to work unless a physician determined
that Kries was fully healed and since Olson's authorizations were worthless.
The Women's Clinic fired Shannon Kries on November 16,2010. The clinic
blames the termination from employment on Kries because she failed to communicate
with the clinic. Nevertheless, the clinic could have contacted her or her physician to
determine the progress of her healing. Her physician had already approved her
reemployment.
The clinic's expert, Dr. Michael Gillum, concludes that Shannon Kries could have
returned to work on November 30, only two weeks after the firing. The clinic could have
left Shannon Kries' job position open and temporarily filled the position with another
worker until Kries recovered. The Women's Clinic commendably provided Kries some
medical leave, but presents no facts that providing additional leave would have been a
burden. Providing unpaid medical leave can qualify as a reasonable accommodation.
Amadio v. Ford Motor Co., 238 F.3d 919,928 (7th Cir. 2001); Cehrs v. Ne. Ohio
Alzheimer's Research Ctr., 155 F.3d 775,783 (6th Cir. 1998). A question of fact exists
as to whether allowing Kries further leave would be a reasonable accommodation.
No. 32879-I-III
Kries v. WA-SPOK Primary Care, LLC
Reassignment is another method of accommodation. MacSuga v. Spokane
County, 97 Wash. App. 435, 442-44, 983 P.2d 1167 (1999). Facts show that Shannon
Kries' supervisor had work and was willing to allow Kries to work at duties that did not
require contact with patients. The Women's Clinic rejected this accommodation because
of an unyielding infection control policy. Questions of fact exist as to whether the
reassignment would be a reasonable accommodation.
An employer must reasonably accommodate an employee's disability unless to do
so would impose an undue hardship on the employer's business. WAC 162-22-075.
"Undue hardship" is an employer's last defense; one that it may assert when an otherwise
qualified employee could ordinarily be reasonably accommodated but cannot in a
particular case, based on typically case-specific circumstances. US Airways, Inc. v.
Barnett, 535 U.S. 391,402, 122 S. Ct. 1516, 152 L. Ed. 2d 589 (2002). An
accommodation is reasonable only if its cost is not clearly disproportionate. Stone v. City
ofMount Vernon, 118 F.3d 92, 98 (2d Cir. 1997). The Women's Clinic presents no
evidence that assigning tasks to Shannon Kries that did not involve patient contact
increased its expenses.
Attorney Fees
Shannon Kries requests attorney fees and costs under RAP 18.1(b) and RCW
49.60.030. RAP 18.1 permits a party to recover attorney fees on appeal if an applicable
law grants the party that right. RCW 49.60.030(2) provides, in relevant part:
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No. 32879-1-111
Kries v. WA-SPOK Primary Care, LLC
Any person deeming himself or herself injured by any act in
violation of this chapter shall have a civil action in a court of competent
jurisdiction to enjoin further violations, or to recover the actual damages
sustained by the person, or both, together with the cost of suit including
reasonable attorneys' fees or any other appropriate remedy.
Although the WLAD allows for an award of attorney fees on appeal, Kries'
request here is premature, as the trial court has not ruled on the merits. Sambas ivan v.
Kadlec Med. Ctr., 184 Wash. App. 567, 592, 338 P.3d 860 (2014); Dowler v. Clover Park
Sch. Dist. No. 400, 172 Wn.2d 471,485-86,258 P.3d 676 (2011). Therefore, we deny
the request.
CONCLUSION
We reverse the trial court's grant of summary judgment dismissal to the Women's
Clinic. We remand the suit for further proceedings. Shannon Kries' request for an award
of reasonable attorney fees and costs will abide the determination of whether Kries
prevails on the merits.
1 CONCUR:
50
32879-1-III
KORSMO, J. (dissenting) - Like the trial court, I see nothing ambiguous about the
infectious disease policy and the fact that Shannon Kries has an expert who prefers a
different policy does not render the Clinic's policy ambiguous. But, even under her own
interpretation of the policy, she had a draining wound for the last several months of her
employment and had not been cleared to return to work. I therefore dissent from those
aspects of the majority opinion and need not address the other contentions.
The basic principles that govern this inquiry are well settled. Whether a contract
is ambiguous is a question of law for'the court to determine. McGary v. Westlake
Investors, 99 Wash. 2d 280, 285, 661 P.2d 971 (1983). Courts will not read an ambiguity
into a contract "where it can reasonably be avoided by reading the contract as a whole."
Id. An ambiguity exists if language is '" fairly susceptible to more than one reasonable
interpretation.'" Mendoza v. Rivera-Chavez, 88 Wash. App. 261, 268, 945 P.2d 232
(1997) (quoting Tewell, Thorpe & Findlay, Inc. v. Contintental Cas. Co., 64 Wn. App.
571,575,825 P.2d 724 (1992)).
The "Infection Control Policy" lists six "general guidelines." Clerk's Papers (CP) at
436. The first of those is that "No one is allowed to work with an open or draining wound."
No. 32879-1-111
Kries v. WA-SPOK Primary Care, LLC-Dissent
The second] guideline provides: ~'Hospital employees reporting to work, involving patient
care or food service, with sutured lacerations on hands or forearms will not be allowed to
work until the sutures are removed or until affected areas can be washed thoroughly. All
sutures, other than on hands and forearms, must be covered during working hours." ld.
Similarly, the return to work policy expressly states that "No sutures or open
wounds on hands or forearms" will be allowed in direct patient care. CP at 445. However,
employees may, by approval, work in patient care areas with "Sutures or wounds that can
be completely covered, other than hands/forearms (i.e. chest, leg, face)." ld.
The general guidelines and the return to work policy do not conflict in the least.
The first general guideline speaks to an "open or draining wound." The second general
guideline covering sutures and the return to work policy are the same-no wounds or
sutures on the hands or forearms, but sutures on the rest of the body are permitted if they
can be covered. The policies of the first two guidelines complement each other and do
not conflict. The first policy addresses draining wounds, while the second addresses non-
draining closed wounds. Stated simply, the Clinic's rules were: no open wounds, no
draining wounds, no sutured wounds below the elbow, and sutured wounds other places
might be all right if they could be covered.
] The other general guidelines address employees with elevated temperatures,
contagious upper respiratory infections, those who become ill at work, and those with
infectious diseases. CP at 436.
2
No. 32879-1-III
Kries v. WA-SPOK Primary Care, LLC - Dissent
While the phrase "open or draining wound" could be clearer, it is not ambiguous,
despite Ms. Kries' efforts to redefine the phrase to create an ambiguity. Both her expert,
Dr. Francis Riedo, and defense expert Dr. Michael Gillum agreed that all open wounds
were, technically speaking, draining wounds. 2 CP at 360,371,374. Dr. Riedo also
agreed with the Clinic's policy-an employee should not work with an open or draining
wound. CP at 360. Indeed, he had the same policy. CP at 361. He also agreed that no
employee with forearm wounds should work. CP at 363. His disagreement with the
Clinic's "open wound" policy was that it did not address draining wounds that could be
adequately covered. 3 CP at 360. Thus, he thought the Clinic's policy should be
reinterpreted to permit people whose wounds could be adequately covered, or whose
draining could be contained, to work. CP at 360.
This is a mere policy disagreement between experts~ it is not an ambiguous policy.
Dr. Riedo believed the policy was over inclusive, but he had the same understanding of
what an open or draining wound was as the Clinic did. He thought that an exception for
adequately covered wounds (or controlled drainage) would sufficiently serve the
purposes of the policy_ However, that was not his decision to make. The fact that the
2 Curiously, the majority opinion at page 19 faults the defense expert for equating
open wounds with draining wounds, but does not fault the plaintiffs expert for having
the same view.
3 "What's unspoken is what if you can cover the wound? It doesn't say no one is
allowed to work with a covered wound." CP at 360.
3
No. 32879-1-111
Kries v. WA-SPOK Primary Care, LLC - Dissent
"open wound" policy did not address covered wounds did not mean that the policy was
ambiguous. 4
The majority'S effort to find ambiguity in the phrase "open or draining wound"
likewise fails. It reasons that because "an open wound is always draining," that "Therefore
the term 'draining wound' in the Women's Clinic infection policy must be narrowed,
otherwise it adds no meaning to the policy." Majority at 18. That reasoning is unsound for
at least two reasons. First, while all "open wounds" may be draining, it does not
necessarily follow that all draining wounds are "open wounds.,,5 Ms. Kries' own example
demonstrates the problem. While her skin wound was "closed," she continued to have
draining due to internal infections. Her own expert agreed that she had two drains in place.
CP at 360. By her argument, she may no longer have had an "open wound," but admittedly
she still had a "draining wound." The two terms are not co-extensive.
The second reason the majority's argument fails is that, even if the two terms were
co-extensive, there is no basis for "narrowing" the meaning of only one of two terms that
have the same meaning. The outcome of that exercise would be, as here, to continue to
have the same problem the majority was trying to fix. Instead, the purpose of interpreting
language in a contract is to "determine the parties' intent at the time of contracting" in
4 In fact, the suture policy dealt with covered wounds that were not draining wounds.
5 Just because all dogs are mammals, does not mean that all mammals are dogs.
4
No. 32879-I-III
Kries v. WA-SPOK Primary Care, LLC - Dissent
order "to give effect to the apparent clear intention." Eurick v. Pemco Ins., 108 Wash. 2d
338, 340-41, 738 P.2d 251 (1987). Contracts are interpreted to give effect to all provisions.
Smith v. Continental Cas. Co., 128 Wn.2d 73,80,904 P.2d 749 (1995). Interpreting
"draining wound" to have the same meaning as "open wound" would render, quite
unnecessarily, one of those two phrases meaningless in contravention of our obligation to
give meaning to both.
Instead, if we meet our obligations to avoid ambiguity and give effect to both
phrases, as well as consider the other provisions of the contract, the answer is clear. The
disputed provision prohibits an "open wound" and it also prohibits a "draining wound."
Giving "draining wound" its own meaning means that we cannot interpret that phrase to
only apply to an "open wound." Instead, it must mean a draining closed wound, such as
the closed wound that afflicted Ms. Kries. Closed wounds that are not draining would be
covered by the suture policy.
Here, Ms. Kries had, by her own admission, a closed wound that was draining. Her
condition fell squarely within the "open or draining wound" policy because the existing
suture policy left draining wounds to the "open or draining wound" policy. Because there
is no ambiguity and because Ms. Kries fits within the policy, the trial court properly
granted summary judgment.
Medical care facilities by definition address many patients who are themselves ill
and also at increased risk of developing infections from others. Putting them together with
5
No. 32879-1-III
Kries v. WA-SPOK Primary Care, LLC - Dissent
other ill patients or health care employees who themselves are ill significantly increases the
risk of new infections to patients and employees alike. The Clinic adopted a policy of
limiting the risk of infection for both patients and employees. Dr. Riedo presented
evidence of a different approach that he considers more balanced. That there might be a
different reasonable policy does not mean that the Clinic's approach is unreasonable or
discriminatory. The Clinic worked with Ms. Kries after she disclosed her condition, and
employed her for nearly 11 months even though she was off work much of that period due
to the fact that her condition would not hea1. 6 The Clinic's treatment of her, consistent
with its employee infection policy, was entirely reasonable.
The most that Ms. Kries has shown is that, in some circumstances, the phrase "open
or draining wound" is redundant. However, redundancy is not ambiguity. There are
reasonable alternative policies, but not alternative reasonable readings ofthis policy. I,
accordingly, would affirm the order granting summary judgment, and respectfully dissent.
6 It is very possible to view Ms. Kries' continuing infection difficulties as proof of
the wisdom of the Clinic's policy, although perhaps not of its efficacy.
6