Appeal from Superior Court of King County. Docket No: 93-2-07751-3. Date filed: 10/07/94. Judge signing: Hon. Charles V. Johnson.
Authored by Walter E. Webster. Concurring: H. Joseph Coleman, C. Kenneth Grosse.
The opinion of the court was delivered by: Webster
WEBSTER, J. -- Carey States appeals the dismissal of three claims against his former employer, Boeing. We agree that genuine issues of material fact exist regarding his handicap discrimination claim and reverse summary judgment on that claim. Because his remaining arguments are without merit, we otherwise affirm the trial court.
States worked for Boeing for approximately ten years. He was off work in June 1992 due to an ankle injury. Boeing expected him to return to work on June 11. Prior to this date, he experienced signs of depression. He attempted to contact Dr. John, who had previously treated him and authorized medical leave for his depression, but was unable to reach him. On the day that States was due back at work, he was still experiencing depression symptoms. He called Boeing's employee assistance program to explain the situation. At their recommendation, he made an appointment with Dr. Nagel, for June 16, the psychiatrist's first available appointment. States called his supervisor on Friday, June 12, told him that he had a medical appointment scheduled for June 16, and discussed his need for a medical leave of absence. States's supervisor requested that he come into the office to fill out medical leave paperwork. States agreed to do this on Monday, June 15, but claims he slept all day because of his depression. On June 16, Dr. Nagel saw States, retroactively authorized medical leave from June 11 - 22, and sent the paperwork to Boeing's medical unit. States told Cindy Barnes, his Boeing personnel representative, that he was obtaining medical leave. Nonetheless, on June 18 she processed termination paperwork for the unreported absences on June 11 and 15 - 18.
States's complaint included four claims: (1) Boeing fired him in violation of RCW 49.60.180 because it did not reasonably accommodate his handicapping condition, (2) Boeing fired him in violation of RCW 51.48.025 because of his activities in support of worker safety, *fn1 (3) Boeing denied him access to his personnel and medical files in violation of RCW 49.12.250, and (4) Boeing violated the Worker Right to Know Act, RCW 49.70.010. Boeing filed a motion for partial summary judgment on the handicap discrimination claim. After States failed to respond to the motion, the court granted partial summary judgment. Thirteen days later, States filed a memorandum in opposition to the motion for summary judgment and a motion for reconsideration with evidentiary documentation attached. Boeing opposed the motion on procedural grounds, but did not move to strike the evidentiary materials. The court denied the motion, but the record does not reveal whether it considered the additional materials.
Boeing later brought a motion for summary judgment on the remaining claims, which the trial court granted.
Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. CR 56(c). We review the summary judgment order de novo, considering the evidence in the light most favorable to the non-moving party. Kruse v. Hemp, 121 EWash. 2dF 715, 722, 853 P.2d 1373 (1993).
Boeing asserts that summary judgment was appropriate because States, by not responding to the summary judgment motion, failed to present any evidence supporting his claims. Before the burden shifts to the nonmoving party to demonstrate that issues of material fact exist, however, the moving party must show that it is entitled to judgment as a matter of law. Hiatt v. Walker Chevrolet, 120 Wash. 2d 57, 66, 837 P.2d 618 (1992). Thus, if the moving party fails to establish that it is entitled to judgment as a matter of law, summary judgment should not be entered even if the other party did not contest the motion. Graves v. P.J. Taggares Co., 94 Wash. 2d 298, 302, 616 P.2d 1223 (1980). Questions of fact may be determined as matters of law only when reasonable minds could reach but one Conclusion. Ruff v. County of King, 125 Wash. 2d 697, 704, 887 P.2d 886 (1995). Here, Boeing did not establish as a matter of law that it was entitled to partial summary judgment on the discrimination claim, even though States failed to appear. *fn2 At the time of States's dismissal, Washington's law against discrimination prohibited employers from discharging employees on the basis of any "sensory, mental or physical handicap . . . ." RCW 49.60.180(2) (1992). *fn3 An employer's failure to attempt to accommodate the employee's physical, mental, or sensory limitations prior to discharge constitutes discrimination under RCW 49.60.180. Dean v. Municipality of Metropolitan Seattle, 104 Wash. 2d 627, 632, 708 P.2d 393 (1985); see also WAC 162-22-080(1).
A prima facie reasonable accommodation claim requires a showing that (1) the employee had a "handicap," (2) the employee was qualified for the position, and (3) the employer failed to take affirmative steps to accommodate the employee's handicap. Bruce v. Northwest Metal Products, 79 Wash. App. 505, 514, 903 P.2d 506 (1995), review denied, 129 Wash. 2d 1014, 917 P.2d 575 (1996).
Washington courts have adopted WAC 162-22-040's definition of "sensory, mental, or physical handicap." Phillips v. City of Seattle, 111 Wash. 2d 903, 906-08, 766 P.2d 1099 (1989). A condition is a handicap if it is an abnormality and it is a reason why the employer discriminated against the claimant. WAC 162-22-040(a). The presence of a handicap includes circumstances where the condition (1) is medically cognizable or diagnosable, (2) exists as a record or history, or (3) is perceived to exist, whether or not it actually exists. ...