United States District Court, E.D. Washington
ORDER RE: CROSS MOTIONS FOR SUMMARY JUDGMENT
THOMAS O. RICE, District Judge.
BEFORE THE COURT are the following motions: Defendant's Motion for Summary Judgment (ECF No. 40), Plaintiff's Partial Motion for Summary Judgment (ECF No. 58), Plaintiff's Motion to Exclude Defendants' Expert Judith Clark (ECF No. 46), Defendants' Motion to Exclude Expert Testimony of Jennifer Morphis (ECF No. 54), and Plaintiff's Motion to Strike the Declarations of Gita George-Hatcher, Dan Daling, and David Chandler (ECF No. 78). These matters were heard with oral argument on October 17, 2014. Alexandria T. John and Robert A. Dunn appeared on behalf of Plaintiff. Sean D. Jackson and Michael A. Patterson appeared on behalf of Defendants. The Court has reviewed the briefing and the record and files herein and heard from counsel, and is fully informed.
Plaintiff alleges claims of disability discrimination, wrongful discharge in violation of public policy, intentional and negligent infliction of emotional distress, and wrongful withholding of wages. Defendants now move for summary judgment on all claims. ECF No. 40. Plaintiff has filed a cross-motion for partial summary judgment on (1) the disability element of her ADA claim; (2) the adverse employment action element of her ADA claim; and (3) her WLAD claim for disparate treatment. ECF No. 58. For the reasons discussed below, this Court grants and denies Defendants' motion in part, and grants and denies Plaintiff's motion in part.
Plaintiff Liane Carlson began working for Defendant City of Spokane ("Defendant City") in 2007 as a Human Resources Specialist, which position later was renamed Human Resources Analyst. ECF Nos. 41 at 1; 59 at 1. In her position, Plaintiff was responsible for human resources and labor relations work within several departments. ECF No. 50 at 45, 47 (document under seal). Plaintiff regularly received positive evaluations and performance reviews from her superiors and coworkers and had no record of discipline. ECF Nos. 41 at 2; 59 at 2-4.
On July 19, 2011, Plaintiff suffered a debilitating stroke, which required leave for rehabilitation to address right-side paralysis and speech issues. ECF Nos. 41 at 2; 59 at 4. Plaintiff was placed on FMLA leave, and when that leave was exhausted, resorted to leave hours from the City's shared leave bank and hours donated by other City employees. ECF No. 41 at 3.
In January 2012, Plaintiff's doctor cleared Plaintiff to return to work for up to eight hours of teleworking per week, ECF No. 59 at 4, and by late February, Plaintiff was cleared to work two days per week at home and one half day in the office. ECF Nos. 41 at 4; 59 at 5. At this time, Plaintiff met with her supervisor, Human Resources Director Heather Lowe ("Defendant Lowe"), requesting accommodations in order to perform her job duties. ECF Nos. 49-4 at 47; 59 at 5. Initially, Plaintiff worked two and a half days a week, using intermittent leave share for the remaining portion of the week.ECF No. 59 at 5. During this period following her return to work, neither Plaintiff nor Defendant Lowe received any complaints about Plaintiff's job performance, nor did Defendant Lowe voice any complaints about the sufficiency of Plaintiff's performance. ECF Nos. 49-4 at 34; 59 at 5.
At the end of February, Defendant Lowe was informed by payroll that the standard City practice was to allow intermittent leave share only if a bargaining unit had specifically negotiated for that right. ECF Nos. 41 at 4; 45-2 at 52-53. Accordingly, Defendant Lowe informed Plaintiff that she was not eligible for intermittent leave share. ECF Nos. 41 at 4; 59 at 5-6; 68-1 at 9-10. Plaintiff instead had the option of either taking full-time leave share or returning to work on a modified schedule, the latter option resulting in reduced pay status and affected benefits. ECF Nos. 41 at 4; 59 at 5. Plaintiff subsequently opted for full-time leave share. ECF No. 51 at 6. As a result, Defendants did not implement Plaintiff's accommodation requests. ECF No. 70 at 3.
During a meeting in May 2012, Plaintiff provided Defendant Lowe a letter from her physician, Dr. Mark Gordon, stating that Plaintiff could return to full-time work but would require accommodations due to her disability. ECF Nos. 59 at 6-7, 41 at 6. Although Dr. Gordon did not recall speaking with anyone from the City regarding Plaintiff's job duties, Plaintiff provided Dr. Gordon with an HR job description-which Defendant Lowe provided to Plaintiff-in an effort to help Dr. Gordon understand Plaintiff's job duties and assess her ability to return to work. ECF Nos. 41 at 6-7; 59 at 6; see ECF No. 50 at 45, 47 (document under seal). In light of this information, Dr. Gordon opined Plaintiff would be able to perform the essential job functions and physical requirements of her position provided she receive the following accommodations: flexible scheduling, longer and more frequent work breaks, work from home as needed, mobility products, one-handed keyboard and speech recognition software, recorder and writing aids, lightweight briefcase, long handled reacher, hand cart, handicap parking space. ECF Nos. 41 at 6; 52 at 33-34 (document under seal); 59 at 7.
Instead of implementing Dr. Gordon's proposed accommodations, Defendant Lowe-uncertain about Plaintiff's ability to return to work in light of her speech limitations-scheduled Plaintiff for a Fitness for Duty examination with Dr. Paula Lantsberger of Occupational Medicine Associates. ECF No. 41 at 7; 59 at 7. After the examination, Dr. Lantsberger provided Defendant Lowe with her progress notes, which indicated that based on the examination results and the job description provided by Defendant Lowe,  Plaintiff could perform her work duties. ECF Nos. 49-4 at 52-53; 59 at 8. Defendant Lowe subsequently contacted Dr. Lantsberger to clarify and expand upon Plaintiff's job duties, indicating that ninety percent of Plaintiff's job involved interactive verbal communication. ECF Nos. 49-4 at 53-56; 50 at 55 (document under seal); 59 at 8. Defendant Lowe also suggested, in light of her concern that Plaintiff would not be able to handle the responsibilities of her HR position, that Plaintiff be placed on medical layoff for sixty days with a subsequent reevaluation at the end of that period. ECF Nos. 49-4 at 59; 52 at 62 (document under seal); 59 at 8-9.
On June 5, 2012, Dr. Lantsberger ultimately determined Plaintiff would be unable to perform the essential elements of her position, even with accommodation. ECF Nos. 41 at 8; 52 at 36-37 (document under seal); 59 at 9. Dr. Lantsberger recommended a sixty-day medical layoff with a reevaluation at the end of that period. ECF Nos. 41 at 8; 59 at 9. Accordingly, Defendant Lowe sent Plaintiff a letter placing her on medical layoff status effective June 22, 2012, with the request that Plaintiff return in sixty days for re-evaluation. ECF Nos. 41 at 9; 59 at 9; 72 at 5. Shortly thereafter, Plaintiff sought a second opinion from Dr. Castleman. ECF Nos. 41 at 9; 59 at 9. Dr. Castleman recommended that the City let Plaintiff attempt her job on a trial basis, stating no one could say with certainty whether Plaintiff would be able to perform her position unless she was given opportunity to try. ECF Nos. 41 at 9-20; 52 at 40 (document under seal); 59 at 9, 72 at 5.
Plaintiff did not return after sixty days for a medical evaluation, nor did she return to work anytime thereafter. ECF No. 59 at 9. Instead, on June 21, 2012, Plaintiff filed a complaint with the Human Rights Commission alleging violation of her rights under state and federal law. ECF No. 41 at 11. Plaintiff subsequently withdrew her complaint and initiated this suit on August 31, 2013. ECF No. 1.
I. Cross-Motions for Summary Judgment
Summary judgment may be granted to a moving party who demonstrates "that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The moving party bears the initial burden of demonstrating the absence of any genuine issues of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the non-moving party to identify specific genuine issues of material fact which must be decided by a jury. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there must be evidence on which the jury could reasonably find for the plaintiff." Id. at 252.
For purposes of summary judgment, a fact is "material" if it might affect the outcome of the suit under the governing law. Id. at 248. A dispute concerning any such fact is "genuine" only where the evidence is such that a reasonable jury could find in favor of the non-moving party. Id. In ruling upon a summary judgment motion, a court must construe the facts, as well as all rational inferences therefrom, in the light most favorable to the non-moving party. Scott v. Harris, 550 U.S. 372, 378 (2007). Only evidence which would be admissible at trial may be considered. Orr v. Bank of Am., NT & SA, 285 F.3d 764, 773 (9th Cir. 2002).
A. Failure to Accommodate (ADA & WLAD)
Plaintiff alleges that Defendants violated the ADA and the WLAD by failing to accommodate her disability. Defendants have moved for summary judgment on these claims on the grounds that Plaintiff is not an individual qualified for reasonable accommodations because she could not perform the essential elements of her job with or without accommodation. ECF No. 40. Plaintiff has moved for partial summary judgment on the following issues: (1) Defendants knew and perceived her as disabled prior to terminating her employment, and (2) Plaintiff suffered an adverse employment action when Defendants placed her on medical layoff status. ECF No. 58. Since the parties have not identified any relevant distinctions between the ADA and the WLAD for purposes of the instant cross-motions, the Court will address Plaintiff's state and federal claims together.
Both the ADA and the WLAD require an employer to make reasonable accommodations for an employee with a disability. 42 U.S.C. § 12112(b)(5); Wash. Rev. Code § 49.60.180(1)-(3). To prevail on a failure to accommodate claim under the ADA, a plaintiff must prove that "(1) she is disabled within the meaning of the ADA; (2) she is a qualified individual able to perform the essential functions of the job with reasonable accommodation; and (3) she suffered an adverse employment action because of her disability." Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012) (quotation and citation omitted). Failure to accommodate claims are not analyzed under the familiar McDonnell Douglas burden shifting framework because liability does not "turn on the employer's intent or actual motive." Peebles v. Potter, 354 F.3d 761, 766 (8th Cir. 2004).
The elements of a failure to accommodate claim under the WLAD are similar. The plaintiff must prove that (1) she had a sensory, mental, or physical abnormality that substantially limited her ability to perform the job; (2) she was qualified to perform the essential functions of the position; (3) she gave her employer notice of the disability and its accompanying substantial limitations; and (4) upon receiving notice, the employer failed to affirmatively adopt measures that were both available and medically necessary to accommodate the disability. Riehl v. Foodmaker, Inc., 152 Wash.2d 138, 145 (2004). The WLAD and the federal ADA have the same purpose; thus, Washington courts look to federal cases for guidance. MacSuga v. Cnty. of Spokane, 97 Wash.App. 435, 442 (1999) ( citing Fahn v. Cowlitz Cnty., 93 Wash.2d 368, 376 (1980)).
As an initial matter, the parties do not dispute that Defendants knew Plaintiff was disabled within the meaning of the ADA and WLAD at all times relevant to this action and that Plaintiff suffered an adverse employment action when Defendant City placed her on medical layoff status. ECF Nos. 71 at 3; 83 at 3. Because there is no genuine dispute of material fact surrounding these issues, this Court finds it appropriate to GRANT, in part, Plaintiff's motion for summary judgment regarding these issues.
1. Defendant Lowe's Liability under the ADA
Defendants initially move to dismiss as a matter of law Plaintiff's ADA claims against Defendant Lowe. ECF No. 40 at 3. The ADA limits liability to an "employer" as defined under the Act. 42 U.S.C. § 12111. As such, individual defendants cannot be held personally liable under the ADA. Walsh v. Nev. Dep't Human Res., 471 F.3d 1033, 1038 (9th Cir. 2006); cf. Brown v. Scott Paper Worldwide Co., 143 Wash.2d 349, 361 (2001) (holding that, under the WLAD, "individual supervisors, along with their employers, may be held liable for their discriminatory acts"). However, an employer can be held vicariously liable for the discriminatory acts of its employees. Duvall v. Cnty. of Kitsap, 260 F.3d 1124, 1141 (9th Cir. 2001). Accordingly, Plaintiff's ADA claims against Defendant Lowe are dismissed and this Court shall only consider Defendant City's liability under these claims.
2. Essential Functions
Defendants move for summary judgment on Plaintiff's failure to accommodate claims against Defendant City on the grounds that Plaintiff was unable to engage in effective verbal communication, a purportedly essential function of the HR Analyst position. ECF No. 40 at 4. Plaintiff, on the other hand, maintains verbal communication is merely a physical requirement of her position and thus is not relevant to determining whether she is a qualified individual under the ADA. ECF No. 67 at 13-14. In the alternative, Plaintiff contends that questions of fact exist regarding her ability to verbally communicate with or without accommodation. Id. at 15-21.
The burden of establishing that a function is essential "lies uniquely with the employer." Bates v. United Parcel Serv., Inc., 511 F.3d 974, 991 (9th Cir. 2007) (en banc) (quotation and citation omitted). To satisfy this burden, the employer must produce admissible evidence which, if credited by the trier of fact, would support a finding that the function at issue is essential. Samper, 675 F.3d at 1237. Relevant evidence includes, but is not limited to: the employer's judgment as to which functions are essential; written job descriptions prepared before advertising or interviewing applicants for the job; the amount of time spent on the job performing the function; the work experience of past incumbents in the job; and the current work experience of incumbents in similar jobs. 29 C.F.R. § 1630.2(n)(3); Bates, 511 F.3d 974 at 991.
However, "essential functions' are not to be confused with qualification standards, ' which... are personal and professional attributes' that may include physical, medical [and] safety' requirements." Bates, 511 F.3d 974 at 990 (citing 29 C.F.R. § 1630.2(n)(1)). As the Ninth Circuit noted, the difference is "crucial" because an employee need not meet all of the employer's "qualification standards" to show that she is qualified for purposes of the ADA. Id. (noting "it would make little sense to require an ADA plaintiff to show that [s]he meets a qualification standard that [s]he undisputedly cannot meet because of [her] disability and that forms the very basis of [her] discrimination challenge").
The parties have extensively briefed the issue of whether effective verbal communication is an essential function of the HR Analyst position. Defendants have produced the following evidence that effective verbal communication is an essential element of the position. First, Defendants point to the HR Analyst job description, which includes the following "essential job functions": ability to assist in negotiations, participate in pre-disciplinary hearings, advise managers and supervisors on human resources and labor matters, assist in the planning and developing of human resources policies, conduct investigations and hold meetings as necessary to resolve human resources matters, conduct or coordinate human resources-related training classes, and assist in the preparation and presentation of human resources related matters. ECF No. 50 45, 47 (under seal). According to Defendants, these tasks necessitate interactive speaking with others. ECF No. 40 at 11.
Second, Defendants point to Plaintiff's personal testimony about her position. In her deposition testimony, Plaintiff admitted that the ability to communicate effectively was necessary to carry out most of the "essential job functions" listed on her position's job description. ECF No. 91-1 at 3-20 (admitting that she used some degree of verbal communication when facilitating and participating in predisciplinary hearings, which involved speaking to people; advising managers and supervisors, which involved conveying complex ideas in a relatively easy-to-understand way; developing human resources policies, which involved talking and working in a group; conducting investigations, which involved interviewing witnesses; and conducting training classes, which involved presenting to a room full of people).
Finally, Defendants point to the experience of other current HR Analysts at the City, Gita George-Hatcher and Dan Daling; the current Director of Human Resources, Defendant Lowe; and the former director of Human Resources, David Chandler. These witnesses all agree that effective verbal communication constitutes a substantial portion of the work performed by HR Analysts, ranging from fifty to ninety percent. See ECF Nos. 42; 43; 44. Specifically, all three witnesses stated that ...