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Galloway v. Boise, Inc.

United States District Court, E.D. Washington

October 1, 2014

ONDRA D. GALLOWAY, Plaintiff,
v.
BOISE, INC., and BOISE PAPER HOLDINGS, LLC., Defendants.

ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

SALVADOR MENDOZA, Jr., District Judge.

Before the Court, without oral argument, is Defendants' Motion for Summary Judgment, ECF No. 19. Having reviewed the pleadings and the file in this matter, the Court is fully informed and denies Defendants' Motion for Summary Judgment.

I. BACKGROUND

A. Factual background[1]

Defendants first hired Plaintiff Ondra Galloway in 1979 at their Boise Paper Wallula Mill ("mill"). ECF No. 31-1 at 6. First hired as a helper, Plaintiff has worked for Defendants in the shipping department, in maintenance, and as an oiler. Id. at 6-7. In 1992, Plaintiff became a journeyman millwright and journeyman millwright oiler, a position he held until 2012. Id. at 7.

In May 2007, Plaintiff was sent to grease bearings on the lump crusher at the mill and to inspect the area where it was located. Id. at 22. He suddenly began to vomit and continued to do so for several hours. Id. When his condition did not improve the following day, he went to an emergency room, where doctors ran tests but could not identify the cause of the vomiting. Id. at 23. Though Plaintiff suffered from vomiting episodes from that point, he first brought up this condition to Defendants in January 2012 when he was dealing with an unrelated vocational shoulder injury. Id. at 41. Plaintiff did not know what caused this condition, ECF No. 31-1 at 25, and, in a Labor and Industries accident claim, he attributed the issue to excessive inhalation of lime dust. ECF No. 31-2 at 43.

From this point, Plaintiff saw a variety of doctors, specialists, and other medical providers, who put restrictions on his working conditions to accommodate his medical issue. See ECF No. 24-1 at 31-41; ECF No. 31-2 at 45, 50-61.

On January 23, 2012, Plaintiff agreed to wear a dust mask when working in the lime kiln area, ECF No. 24-1 at 31; ECF No. 31-2 at 45, his assigned area at the time. ECF No. 31-1 at 28. The dust mask, however, only made Plaintiff's condition worse. ECF No. 31-1 at 45-46. After a vomiting episode on February 7, 2012, Plaintiff met with Defendants' nurse who sent him home until Plaintiff could meet with Dr. Jim Johnson, a doctor who had contracted with Defendants. Id. at 47-48.

After a February 9, 2012 appointment, Dr. Johnson determined that Plaintiff should be limited "from moderate exertion that would generally cause shortness of breath, exposure to fumes and exposure to cold air." ECF No. 31-2 at 50. Plaintiff believed these limitations were too restrictive because he was not sensitive to all fumes and such a restriction essentially made him unable to work at the mill at all. ECF No. 31-1 at 48.

On February 10, 2012, Plaintiff went to get a second opinion from Serena Williams, his primary healthcare provider, who wrote a note informing Defendants that Plaintiff could return to work immediately but that he should be limited to working inside until more could be determined about his medical issue. ECF No. 31-2 at 52. This note caused Defendants to move Plaintiff from the lime kiln area, which was outdoors and where he had been working for some time, to Paper Machine 3. ECF No. 31-1 at 48.

On April 19, 2012, Plaintiff went back to Dr. Johnson to review the initial restrictions and to request further testing to establish what Plaintiff could and could not do at work. Id. at 49. Dr. Johnson changed Plaintiff's restrictions to "avoid exposure to NCG" (non-condensable gases). ECF No. 31-2 at 54. Plaintiff did not receive notice of these changes and Dr. Johnson disregarded Plaintiff's request for additional tests. ECF No. 31-1 at 49.

Plaintiff only found out about the change after Defendants asked him to do a welding job on April 23, 2012, and Plaintiff inquired if that request was permissible given his restrictions. Id. at 49-50. Despite Dr. Johnson's revised opinion that did not list welding as a restriction, welding fumes gave Plaintiff issues and he could not complete the task without a vomiting episode. Id.; ECF No. 31-2 at 40. On April 25, 2012, Plaintiff went to see Williams again for more guidance. Id. He received updated restrictions that limited him to working inside, without a dust mask, and away from chemicals that cause irritation to the lungs. ECF No. 31-2 at 55.

For some time, Plaintiff worked with no incidents. On May 21, 2012, however, Plaintiff had two vomiting episodes, the first while cleaning a compressor room where he was exposed to a propane leak and the second when he happened to walk by a bad sump pump that had bad oil being cleaned out. Id. at 40; ECF No. 25 at 6.

On July 25, 2012, Defendants' nurse faxed Williams a request for greater detail as to the tasks that Plaintiff could and could not perform at the mill. ECF No. 31-2 at 58. Before receiving a response, Defendants sent Plaintiff into the "kymar" area for a scheduled shut down. ECF No. 25 at 7. Kymar is the pulp digester at the mill where there are chemical fumes, including chlorine. ECF No. 24-2 at 8-9; ECF No. 24-4 at 7. This particular area is half outdoors and half indoors. ECF No. 24-4 at 9. Being sent to this area caused Plaintiff to have another vomiting episode and he was sent to the doctor. ECF No. 31-1 at 51. Williams then updated the restrictions to make sure that Plaintiff "be excused from working in areas with fumes - bleach plant, kymar, [chem] prep, hog fuel, M&D's, chip unloading R8, power recovery lime kilns - can't be around fumes, smoke, welding fumes, dust, chips." ECF No. 31-2 at 59.

On July 31, 2012, Plaintiff met with Defendants' representative from human resources among others. ECF No. 31-1 at 51. Plaintiff was told not to come back until he was 100 percent better. Id.; ECF No. 23 at 3. He was subsequently placed on short term disability leave.

Between July 31, 2012 and April 2013, Defendants did not contact Plaintiff to explore his return. ECF No. 25 at 7. Only after Plaintiff retained an attorney and sent a demand letter did Defendants request that Plaintiff see Dr. Ronald Fleck, an occupational health specialist. Id. at 8. Dr. Fleck found that Plaintiff was fit to work at the mill. ECF No. 24-1 at 45-49. Defendants have not, however, brought Plaintiff back as a millwright or offered him the assistance of human resources personnel to find an acceptable position even after this assessment. Though Plaintiff testified at a Labor and Industries workers' compensation deposition that he was not fit to work at the mill, ECF No. 20 at 11, Plaintiff has explained the circumstances of this statement and has maintained that he could work at Paper Machines 1, 2, or 3 or in the shipping department where exposure to fumes is manageable. ECF No. 25 at 8. Defendants' witnesses disagree. See e.g. ECF No. 21 at 4.

B. Procedural background

Plaintiff filed the present action in Walla Walla Superior Court on May 20, 2013. ECF No. 1 at 2. Defendants removed the case to this Court pursuant to 28 U.S.C. ยง 1446(b). In his Amended Complaint for Damages, ECF No. 12, Plaintiff asserts that Defendants have (1) failed to reasonably accommodate his disability in violation of the Washington Law Against Discrimination, chapter 49.60 RCW ("WLAD"), [2] and (2) constructively discharged him for seeking reasonable accommodation for his disability. ECF No. 12 at 2-5. Defendants move for summary judgment, arguing that Plaintiff is unable to perform essential functions of the job with or without a reasonable accommodation. ECF No. 19 at 4. In addition, Defendants argue that no reasonable accommodation of Plaintiff's disability is possible and that Plaintiff has not met his burden of showing that he is qualified for a different, acceptable position with Defendants. Id. at 15-19. Plaintiff disagrees and argues that Defendants have consistently refused to accommodate his disability and that Plaintiff is capable of performing the essential duties of a millwright, or a different position, if his disability is properly accommodated. ECF No. 26 at 14-15.

Because Defendants have not shown that there is no genuine dispute of material fact, their ...


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